                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-09-00389-CR


JESSIE JAMES LAYTON                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                             STATE


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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION1

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      A jury convicted Appellant Jessie James Layton of possession of a firearm

by a felon.2 The jury assessed punishment at seventeen years‟ confinement. In

one issue, Layton argues that the trial court erred by admitting Layton‟s

videotaped statement to police without redaction of statements Layton believes

were threats against certain individuals and their families. We will affirm.

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code § 46.04 (Vernon Supp. 2010).
      On January 12, 2009, police received information that Layton possessed

stolen property related to a home burglary, including jewelry and guns. The

police went to an RV park managed by Layton‟s stepfather—Jeff Simpson—to

perform a “knock-and-talk” regarding the stolen property. Layton also lived at the

RV park. While at the RV park, police obtained consent to search the property

from both Simpson and Layton. Inside a storage building, police found two guns

and a green duffle bag containing numerous pieces of jewelry.          The police

arrested Layton, a convicted felon who had been released from prison roughly

three months before, for the charge of possession of a firearm by a felon.

      The next day, at Layton‟s request, investigator Gay Johnson spoke with

Layton.   After signing a waiver of his Miranda rights, Layton provided a

videotaped interview of how the jewelry and guns came to be in the storage

building. It is clear from the interview that Layton wished to clear his name as a

possible suspect in the home burglary and wanted to explain how he came into

possession of the jewelry and guns.      According to Layton, an acquaintance

named Mona brought a friend named Bryan with her to Layton‟s RV wanting to

sell Layton the stolen property. Layton agreed to “hold” these items for Bryan,

but he also stated that he intended to raise $450 to purchase all the stolen

property found in the storage building. Layton stated that he believed he had

been “set up.” Layton also made numerous statements that could be interpreted

as Layton intending to seek revenge upon Mona and Bryan, including statements



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that he would “put hell on their ass;” that “[Mona] don‟t want no shit;” and that

“[Bryan]‟s in big trouble. His whole family is in big trouble. I can tell you that.”

      During a pretrial hearing held outside the presence of the jury, Layton

argued that the videotaped interview contained “several pretty blatant swear

words, and one threat made to an individual . . . and that those would . . . be

more prejudicial than probative.” The trial court overruled his objection. When

the State offered the video at trial, Layton again objected saying, “Again, Your

Honor, we would object to the relevance of -- of it as far as being more prejudicial

and probative in certain parts. We ask for a running objection during the playing

of [the video].” The trial court again overruled Layton‟s objection and noted the

running objection. The video was played for the jury during trial.

      At trial, Simpson testified that Layton had previously showed him the guns

and even offered the guns to him because Simpson had guns stolen from him

previously. Simpson also testified that when he provided the police access to the

storage building, he was surprised that the guns were still there because he had

instructed Layton to get rid of them. Simpson averred that he had never seen

Layton handle the guns and that multiple people had access to the shed. A jury

found Layton guilty and sentenced him to seventeen years‟ confinement. This

appeal followed.

      In his sole point, Layton argues that the trial court “committed harmful

error” by admitting portions of his videotaped statement that he made to the



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police. Layton contends that the trial court erred by allowing the State to play

portions of the videotape in which Layton can be heard saying several curse

words and, according to Layton, making threats to multiple individuals.

      The State counters with a threefold argument. First, the State contends

that Layton failed to specifically indicate to the trial court which statements by

Layton were objectionable; thus, Layton has not preserved this potential error for

our review. Second, the State contends that the trial court did not err by ruling

that the statements made by Layton were relevant to show that he did possess

the guns. Finally, the State argues that even if the trial court erred by allowing

the jury to hear “swear words” and “one threat made to an individual,” the error

was harmless.

      We conclude that although Layton objected that the videotaped interview

contained swear words and one threat, Layton failed to specify or identify which

statement or words were objectionable.         When an exhibit contains both

admissible and inadmissible material, the objection must specifically refer to the

material deemed objectionable. See Jones v. State, 843 S.W.2d 487, 492 (Tex.

Crim. App. 1992) (explaining that trial court need not sort through challenged

evidence to segregate admissible from excludable), cert. denied, 507 U.S. 1035

(1993), abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196, 200

(Tex. Crim. App. 2001); Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim.

App. 1980) (op. on reh‟g) (holding objection inadequate to preserve error



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because it was leveled at entire exhibit and failed to specify and identify

objectionable part); see also Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim.

App. 2002) (following Jones and holding that when proffered evidence contains

both admissible and inadmissible statements and proponent fails to segregate

and specifically offer the admissible statements, trial court may properly exclude

entire proffer).

       In this case, Layton objected in the trial court that the videotape contains

“one threat.” Layton did not indicate to the trial court which words or statements

were objectionable.    Indeed, Layton does not address in his brief on appeal

which words or statements were objectionable, and even argues now that Layton

“made threatening statements against the two individuals and the individuals‟

families as well as other people he believed „set him up‟ by placing the property,

including the guns, in his possession, then calling the police to report he had

possession of the property.” We hold that Layton‟s objections to the trial court

were insufficiently specific to preserve the complaint he now makes on appeal.

See Jones, 843 S.W.2d at 492; Hernandez, 599 S.W.2d at 617; see also

Willover, 70 S.W.3d at 847.

       But even if the trial court erred by allowing the jury to watch the taped

interview where Layton used profanity and made potential threats to others, the

alleged error was nevertheless harmless. See Cockrell v. State, 933 S.W.2d 73,




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90 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997) (conducting a

harm analysis after determining that the trial court did not commit error).

      Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any

nonconstitutional error that does not affect substantial rights must be

disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury‟s

verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).             The

conviction should not be overturned if the appellate court, after examining the

record as whole, has fair assurance that the error did not influence the jury, or

had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998).

      Our examination of the record as a whole gives us fair assurance that the

version of the videotaped interview, including Layton‟s profanity and statements

that could be interpreted as threats against individuals, did not have a substantial

and injurious effect or influence on the jury‟s determination that Layton

possessed a firearm.     Here, the record reveals that during the guilt-innocent

phase of trial, the State did not focus on Layton‟s use of profanity or his pointed

statements toward the individuals who had brought him the guns.               In his

videotaped interview, Layton acknowledges that he had possessed the guns but

claims that he did not steal them or the jewelry.         Also, Simpson, Layton‟s

stepfather, testified that he had urged Layton to get rid of the guns. Contrasting



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the brevity of the potentially objectionable language in Layton‟s interview with the

direct testimony by Simpson that Layton possessed the firearms and Simpson‟s

own videotaped statement that he possessed the guns, we cannot say that the

alleged objectionable statements substantially swayed or influenced the jury‟s

verdict. See King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)) (establishing that there is no harm

upon the admission of evidence unless the admission had a substantial and

injurious influence in determining the jury‟s verdict). Thus, we overrule Layton‟s

sole issue and affirm the trial court‟s judgment.




                                              BILL MEIER
                                              JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 3, 2011




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