                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00031-CR


CHRISTOPHER CARL KOHLER                                           APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

     In three issues, Appellant Christopher Carl Kohler appeals his punishment

for misdemeanor assault causing bodily injury to a family member. See Tex.

Penal Code Ann. §§ 12.21, 22.01 (Vernon Supp. 2010). We affirm.




     1
      See Tex. R. App. P. 47.4.
                        II. Factual and Procedural History

      Kohler and Patricia Paskow, the complainant, dated on and off for

approximately ten years. On May 26, 2009, Kohler’s parents dropped him off to

spend the night at Paskow’s house.

      Paskow testified that Kohler started drinking as soon as he arrived at her

house and that she left with a friend to go to the store. When she returned, she

and Kohler started arguing ―because he was really drunk,‖ and he thought she

and her friends had been talking about him.       They started arguing, and she

locked herself and her two dogs in the bathroom because it was ―hard to deal

with him when he’s drinking.‖

      Paskow described the incident as follows:

             I heard him on the phone in the living room, and he was
      calling a girl asking her to pick him up from my house, and he was
      talking negatively about me.

            At that point, I told him that he needed to leave my house. He
      had a bag by the front door, so I went to pick up the bag and throw it
      outside, because I wanted him to have to get it so I could shut the
      door and lock it.[2] Because there have been instances before
      where I tried to get him to leave, and he put his foot in the door, and
      it was a struggle. So when I had the briefcase in my hand and I
      went to go throw it outside, he shoved me. I went through the
      screen, hit the wall on the outside, and there were two girls walking
      on the street. They saw what happened, and they called 911.

The screen door popped off from the force of the push. Paskow stated that

Kohler did not care that she went through the screen door, that he was more

      2
       Paskow additionally testified that Kohler told her that he did not want to
leave when she told him to leave and every time she asked him to leave before
she threw his bag outside, that he said ―no.‖

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concerned about his bag being on the ground, and that everything fell out of

Kohler’s bag when she threw it outside. Paskow suffered scrapes to her elbow

and ankle and a scratch on her arm.

      Hickory Creek Police Officer Jason Stevens testified that he responded to

the 911 call. He made contact with the caller, Carmen Elizabeth, who told him

that as she walked down the street, she heard screams coming from a house

and a woman screaming for someone to call 911. Officer Stevens approached

the identified house from the side and heard a man’s voice yelling in an

aggressive and angry way. As he approached the front of the house, he saw

clothing, bags, and papers strewn across the front yard and front porch area and

saw that the front door was open, the screen door was closed, and the screen

had been pushed out from the door. Paskow, in tears, told him that her boyfriend

had pushed her through the screen door while they were having an argument.

      Officer Stevens stated that Kohler’s eyes were glassy and bloodshot, that

his speech was a little slurred, and that there was a strong odor of alcohol from

his breath. Kohler told him that he had had two vodka mixed drinks, that he had

not done anything wrong, and that Paskow had damaged the door.            Officer

Stevens took photographs of the scene and of Paskow’s injuries, and the photos

were later admitted in evidence and published to the jury. He arrested Kohler.

      A jury found Kohler guilty of the Class A misdemeanor offense of assault

causing bodily injury to a family member.      Following the guilty verdict and

immediately before the punishment phase of trial, the State expressed its intent


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to offer in evidence six exhibits documenting Kohler’s prior convictions. Kohler

did not object to four of the documents—State’s Exhibits 21 through 24—which

showed his conviction for misdemeanor DWI in 2008, for which he received 150

days’ confinement, probated for twenty-four months, and a $750 fine; a federal

conviction for conspiracy to possess with intent to distribute and distribution of a

controlled substance (―MDMA/Ecstasy‖) in 2002, for which he received thirty-

three months’ confinement; and two state convictions for possession of a

controlled substance with intent to deliver in 2002, for which he received five

years’ confinement.

      Kohler objected to State’s Exhibit 25—a 1998 deferred adjudication

community supervision judgment for the class B misdemeanor offense of failure

to stop and provide identifying information—arguing that it was too remote to be

admissible.   Kohler also objected to State’s Exhibit 26—a certified computer

printout of a 2005 DWI conviction—arguing that it was not properly authenticated

and was insufficient to establish that Kohler was the person convicted. The trial

court overruled both objections.

      The jury assessed punishment at 365 days’ confinement and a $4,000

fine, and the trial court sentenced Kohler accordingly. This appeal followed.

                                    III. Evidence

      In his first two issues, Kohler complains that the trial court erred by

admitting State’s Exhibits 25 and 26.        In his third issue, he argues that the




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cumulative effect of these errors resulted in such harm that a new punishment

trial is warranted.

      We review a trial court’s admission of evidence for an abuse of discretion.

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Paschall v.

State, 285 S.W.3d 166, 172 (Tex. App.—Fort Worth 2009, pet. ref’d). A trial

court abuses its discretion when its decision is ―so clearly wrong as to lie outside

that zone within which reasonable persons might disagree.‖         McDonald, 179

S.W.3d at 576.

      In his first issue, Kohler complains that State’s Exhibit 25 was too remote

to be admissible. The following exchange took place regarding this exhibit:

            [Defense Counsel]: Exhibit 25, Your Honor, purports to be a
      judgment dated 1998 for some violation of Sections – I believe that
      says 550.022 of the Transportation Code. I believe that is far too
      remote.

            The Court: Were there intervening judgments . . . Because if
      there are intervening judgments—which I don’t know if those [State’s
      Exhibits 21–24] are . . . [t]hen that would take away the remoteness
      would it not?

             [Defense Counsel]: Perhaps so, Judge.

                      ....

           The Court: And the only objection you had to [State’s Exhibit]
      25 was that it was too remote in time; is that correct?

             [Defense Counsel]: Yes, Your Honor.

             The Court: Okay. And I’ll overrule that objection.

      Kohler specifically asserts that



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      [o]n the question of ―relevance,‖ as recognized by a Report of the
      U.S. Senate Committee on the Judiciary in 1993, prior convictions
      ―over ten years old generally do not have much probative value‖;
      and for precisely that reason, the Federal Rules of Evidence, which
      provide appropriate guidance for interpretation of the Texas Rules of
      Evidence, have adopted a policy that ―convictions over 10 years old
      will be admitted very rarely and only in exceptional circumstances.‖
      In turn, as a matter of legislative intent, interpretation of the phrase
      ―relevant to sentencing‖ in Article 37.07, Section 3(a)(1) must be
      guided, like the Texas Rules of Evidence, by reference to general
      principles of ―relevance‖ found in the Federal Rules. [Internal
      citations omitted.]

      Section 3(a)(1) of article 37.07 of the code of criminal procedure states, in

pertinent part, ―Regardless of the plea and whether the punishment be assessed

by the judge or the jury, evidence may be offered by the state and the defendant

as to any matter the court deems relevant to sentencing, including but not limited

to the prior criminal record of the defendant.‖ Tex. Code Crim. Proc. Ann. art.

37.07, § 3(a)(1) (Vernon Supp. 2010) (emphasis added).

      Our court of criminal appeals has explained the connection between this

section of the code of criminal procedure and the relevance of a prior criminal

record, which is instructive in the disposition of this appeal:

            Although there is no definition of the term ―criminal record‖ in
      the statute, it is reasonable that the term would include the
      sentences that the courts assessed for prior convictions. . . .

             The Code of Criminal Procedure also does not define the term
      ―relevant.‖ Texas Rule of Criminal Evidence 401 is helpful to
      determine what should be admissible under article 37.07 section
      3(a). The definition of relevant evidence is ―evidence having any
      tendency to make the existence of any fact that is of consequence to
      the determination of the action more probable or less probable than
      it would be without the evidence.‖ Sentencing presents different
      issues than a verdict of guilt or innocence because the jury or trial


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      judge chooses from a punishment range, rather than deciding
      whether a defendant is guilty. This Court has observed that the
      definition of ―relevant‖ within the Texas Rules of Criminal Evidence is
      not a perfect fit in the punishment context.

                    [A]dmissibility of evidence at the punishment
            phase of a non-capital felony offense is a function of
            policy rather than relevancy. This is so because by and
            large there are no discreet factual issues at the
            punishment stage. There are simply no distinct ―fact[s]
            ... of consequence‖ that proffered evidence can be said
            to make more or less likely to exist. Rather, ―[d]eciding
            what punishment to assess is a normative process, not
            intrinsically factbound.‖

      Determining what is relevant then should be a question of what is
      helpful to the jury in determining the appropriate sentence for a
      particular defendant in a particular case.

            The legislature has shown through its enactment of article
      37.07 section 3(a) that a defendant’s prior record is relevant to the
      decision that the jury makes. Just as the facts of the instant offense
      are relevant to tailor the sentence to the particular offense, prior
      convictions are relevant to tailor the sentence to the particular
      defendant.

                  ....

            One of the goals of the Penal Code is to prevent the
      defendant from continuing to engage in criminal behavior after that
      defendant has completed the sentence. When a jury has the task of
      assessing a sentence for a defendant who has committed crimes in
      the past, especially when those crimes are the same as or similar to
      the offense with which that defendant is currently charged, it is
      helpful to know the length of the sentence that was too short to
      prevent the recurrence of criminal behavior by that particular
      defendant.

Rogers v. State, 991 S.W.2d 263, 265–66 (Tex. Crim. App. 1999) (internal

citations omitted). This court has observed that the statute expressly allows the

trial court to consider at punishment any matter deemed relevant to sentencing


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and that the statute does not mention, as a basis for excluding such evidence,

staleness or limitations. Tow v. State, 953 S.W.2d 546, 547–48 (Tex. App.—Fort

Worth 1997, no pet.). We hold that the trial court did not abuse its discretion by

admitting State’s Exhibit 25, and we overrule Kohler’s first issue.

      As for his second issue, Kohler claims that the trial court erred by admitting

State’s Exhibit 26, a certified copy of a computer printout from the Dallas County

Certified Copy Department recounting a 2005 probated DWI. The record shows

the following exchange:

           [Defense Counsel]: And Exhibit 26, we would object to it as
      not being properly authenticated. There’s nothing to tie this
      document to my client. There is no fingerprint associated with the
      document that would properly identify him and tie that to my client.

                   ....

            The Court: I haven’t seen those other documents [State’s
      Exhibits 21 through 24], so is there a connection [between] these
      documents that would link these, or . . . .

                   ....

             There’s no objection to State’s Exhibits 21 through 24, and
      there’s going to be a stipulation that the defendant is the same
      person that these documents pertain to?

             [Defense counsel]: That’s correct.

            The Court: Okay. Okay. So State’s Exhibits 21 through 24
      are admitted into evidence.

             Let me look. I do notice right off the bat that in the exhibits—
      the exhibits that are not objected to and already admitted into
      evidence, that you say pertain to your client, they have the same
      date of birth that [is] in State’s Exhibit No. 26. They have the same
      driver’s license number, the same race, same sex. They have the


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      exact same state—Texas state identification number with the
      fingerprint page that your client has on one of the other documents
      that’s already been admitted into evidence.

             Okay. And with those identification—identifiers, the Court will
      find that there is sufficient evidence to link them to the defendant,
      and I will overrule the objection as to State’s Exhibit No. 26.

      The State’s burden of proof is to establish beyond a reasonable doubt that

a conviction exists and that the defendant is linked to that conviction. Flowers v.

State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). Kohler argues that the

computer printout offered by the State does not prove the prior offense sought to

be established and that the computer printout does not link him to the conviction.

      An examination of the exhibit reveals that the Dallas County Clerk’s Office

could not locate the criminal case jacket and instead enclosed a ―certified copy of

the computer printout.‖     The computer printout contains no judgment or

fingerprint. However, the State attempted to link Kohler to the prior offenses

contained in State’s Exhibits 21 through 24, which were admitted without

objection, based on the fact that the driver license’s number, race, sex, and

Texas state identification number were the same.

      Assuming without deciding that the trial court abused its discretion by

admitting State’s Exhibit 26, we will determine whether the exhibit had a

substantial or injurious effect on Kohler’s punishment and affected his substantial

rights. Tex. R. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070 (1999); see also

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In making this

                                        9
determination, we review the record as a whole, including any testimony or

physical evidence admitted for the jury=s consideration, the nature of the

evidence supporting the verdict, and the character of the alleged error and how it

might be considered in connection with other evidence in the case. Motilla v.

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the

jury instructions, the State=s theory and any defensive theories, whether the State

emphasized the error, closing arguments, and even voir dire, if applicable. Id. at

355–56.

      We first note that Kohler was assessed 365 days’ confinement in the

county jail and a $4,000 fine as punishment, which is within the punishment

range for the offense.    See Tex. Penal Code Ann. § 12.21 (stating that an

individual found guilty of a class A misdemeanor shall be punished by a fine not

to exceed $4,000, confinement not to exceed one year, or both). Second, we

observe that the unobjected-to exhibits showed a 2008 DWI conviction for which

Kohler received 150 days’ confinement in county jail, probated for twenty-four

months, and a $750 fine; a 2002 federal conviction with prison time for

conspiracy   to   possess   with   intent    to   distribute,   and   distribution   of,

MDMA/Ecstasy; and two 2002 state convictions for possession of a controlled

substance with intent to deliver that resulted in a five-year sentence. Finally, we

take into account the nature of the offense, wherein the angry and drunk Kohler

refused to leave the complainant’s residence and, in the resulting altercation,

knocked her through a screen door, causing minor injuries.             Based on the

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complainant’s testimony, Kohler appeared to have a drinking problem, 3 was more

concerned about his belongings than her injuries following the incident, and

blamed the complainant for damaging her own property.

      Under these circumstances, we cannot say that the admission of a 2005

probated DWI, if error, had a substantial or injurious effect on Kohler’s

punishment or on his substantial rights. See King, 953 S.W.2d at 271; see also

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (stating that an

error does not affect a substantial right if we have Afair assurance that the error

did not influence the jury, or had but a slight effect@). We overrule Kohler’s

second issue. And because we conclude that the admission of State’s Exhibit 25

was not error and that error, if any, in admitting State’s Exhibit 26 was harmless,

there is no ―cumulative error‖ of such harm as to warrant a new trial. We overrule

Kohler’s third issue.




                                   IV. Conclusion


      3
         Paskow testified that when Kohler ―gets really drunk, he doesn’t know
what he’s doing. . . . He does things, strange things,‖ and she stated that ―[h]e
drinks anything straight, just out of the bottle, when he wakes up.‖ She said,
―[I]t’s hard to deal with him when he’s drinking. I’ve had to call his parents before
from Oklahoma, and they drove three hours to pick him straight up because I
couldn’t deal with him.‖

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      Having overruled all of Kohler’s issues, we affirm the trial court’s judgment.




                                                   BOB MCCOY
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

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

DELIVERED: February 17, 2011




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