Opinion issued July 28, 2015




                                         In The

                                Court of Appeals
                                        For The

                            First District of Texas
                             ————————————
                                NO. 01-14-00431-CR
                             ———————————
                         MARIANNE MAREK, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee



                    On Appeal from the County Court of Law
                             Austin County, Texas
                       Trial Court Case No. 13CR 30663


                         MEMORANDUM OPINION

      A jury convicted appellant, Marianne Marek, of the misdemeanor offense of

interference with public duties1 and assessed a $500.00 fine probated for one year.


1
      “A person commits an offense if the person with criminal negligence interrupts,
      disrupts, impedes, or otherwise interferes with . . . a peace officer while the peace
In her sole point of error, appellant contends that the trial court erred in excluding

the testimony of a lay witness on the issue of appellant’s mental condition. We

affirm.

                                       Background

      Officers went to appellant’s home to issue a citation for violating a city

ordinance. Appellant confronted the officers and accused them of harassing her.

She refused to sign the citation, refused to identify herself, and verbally abused the

officers.   As a result of appellant’s refusal to sign the citation, the officers

attempted to arrest her, but she refused to cooperate, instead lying down on the

ground on top of her hands. The officers picked up appellant and carried her to the

patrol car to effectuate her arrest.

      At trial, Dr. Lagrone, appellant’s psychiatrist, testified that he had treated

appellant since 2005 and that the second time he saw appellant it was clear that she

suffered from post-traumatic stress disorder. Dr. Lagrone testified that appellant’s

condition caused her to have severe panic attacks, and that during these attacks

appellant would not be aware of the risks associated with her actions. According

to Dr. Lagrone, the tape recording of the incident admitted as State’s Exhibit 1 was

of appellant having a panic attack.



      officer is performing a duty or exercising authority imposed or granted by law . . .
      .” TEX. PENAL CODE ANN. § 38.15(a)(1) (West 2011 & Supp. 2014).
                                           2
      The defense then called appellant’s housemate, Jenny Latiolais, who

testified about the incident:

      Q. Okay. And then what, if anything, happened from there?

      A. Just a total meltdown of Marianne. She had a full-blown episode
      and I was trying to help in every way that I could and I was trying to
      get someone over there.

      Q. What do you mean, “an episode”?

      A. I had seen it.

      [Prosecutor]: Objection, Your Honor. This witness isn’t going to have
      any expertise in the area of mental health, if that’s what she is about to
      testify to.

      [Defense Counsel]: Judge, she can testify [about] what she saw. She’s
      saying that she saw an episode.

      [Prosecutor]: She was talking about things that she had seen prior to
      this incident that were objectionable.

      [Witness]: I’ll just—

      [Court]: Ms. Latiolais, just testify about what you saw that night for
      right now.

      [Witness]: Okay.

      [Defense Counsel]: Okay.

      Q. Did you see her acting different than normal?

      A. Yes.

      Q. And was she loud?

      A. Yes, she was.
                                          3
      Q. Okay. And did she continue to say she was being harassed?

      A. Yes.

      Q. Have you ever observed her have a panic attack?

      A. Yes, I have.

      [Prosecutor]: Objection, Your Honor. Same question, same objection.

      [Defense Counsel]: Judge, she can testify to what she has seen before.

      [Prosecutor]: The Court just ruled that she was only supposed to
      address that night.

      [Court]: The objection is sustained.

      The jury subsequently found appellant guilty of interference with public

duties and assessed a $500.00 fine probated for one year. This appeal followed.

                                Exclusion of Evidence

      In her sole point of error, appellant contends that the trial court erred in

excluding Latiolais’s testimony about appellant’s mental condition because the

testimony was relevant to the question of appellant’s mens rea, and the erroneous

exclusion violated her constitutional right to a fair trial.2


2
      The mens rea of the charged offense in this case is criminal negligence. The jury
      charge instructed the jury, in pertinent part:

             A person acts with criminal negligence or is criminally negligent
             with respect to circumstances surrounding her conduct or the result
             of her conduct when she ought to be aware of a substantial and
             unjustifiable risk that the circumstances exist or the result will occur.
             The risk must be of such a nature and degree that the failure to
                                             4
   A. Preservation

      The State argues that appellant failed to preserve this issue for appellate

review because she failed to satisfy the requirements of Rule of Evidence 103.

Rule 103 provides, in pertinent part,

      (a) Effect of Erroneous Ruling. Error may not be predicated upon a
      ruling which admits or excludes evidence unless a substantial right of
      the party is affected, and

                                        ....

         (2) Offer of proof. In case the ruling is one excluding evidence,
         the substance of the evidence was made known to the court by
         offer, or was apparent from the context within which questions
         were asked.

TEX. R. EVID. 103.

      Here, appellant did not make an offer of proof informing the trial court of

the substance of the excluded testimony. However, the substance of Latiolais’s

excluded testimony—that appellant’s behavior on the day of the incident was

consistent with her behavior during prior panic attacks—was apparent from the

context within which defense counsel questioned the witness. Therefore, the issue

has been preserved for review.




             perceive it constitutes a gross deviation from the standard of care
             that an ordinary person would exercise under all the circumstances
             as viewed from the actor’s standpoint.
                                          5
   C. Error

      Appellant asserts that the trial court erred in excluding Latiolais’s testimony

about appellant’s mental condition because, “[h]aving seen [appellant] have such

severe episodes or panic attacks in the past, Ms. Latiolais, if allowed to by the

court, could have told the jury whether the behavior of [appellant] was consiste[nt]

with what she had seen before when [appellant] was having such a panic attack or

episode.” Appellant argues that if the jury had heard this testimony in addition to

Dr. Lagrone’s testimony, it could have reasonably believed that appellant was not

aware of the risk or result of her conduct, i.e., that she did not have the requisite

mens rea for the charged offense.

      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim.

App. 2006). A trial court abuses its discretion if it acts arbitrarily or unreasonably,

without reference to any guiding rules or principles. Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990).           When considering a trial court’s

decision to admit or exclude evidence, we will not reverse the ruling unless it falls

outside the “zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92,

102 (Tex. Crim. App. 1996) (citations omitted); Conelly v. State, 451 S.W.3d 471,

476 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Assuming, without deciding,




                                          6
that the trial court erred in excluding this testimony, we must determine whether

the error was harmful. See TEX. R. APP. P. 44.2.

      Generally, the erroneous exclusion of evidence offered under the rules of

evidence is non-constitutional error and is reviewed under Rule 44.2(b). Walters v.

State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007); Wilson v. State, 451 S.W.3d

880, 886 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).           The erroneous

exclusion of evidence can rise to the level of constitutional error, however, when

the excluded evidence “forms such a vital portion of the case that exclusion

effectively precludes the defendant from presenting a defense.” Potier v. State, 68

S.W.3d 657, 665–66 (Tex. Crim. App. 2002) (en banc) (concluding that exclusion

of evidence is not constitutional error where defendant was not prevented from

presenting substance of his defense).        While excluding evidence that would

“incrementally” further the defendant’s theory is not constitutional error, excluding

evidence that “goes to the heart of the defense” is. Wilson, 451 S.W.3d at 886–87

(quoting Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) and Wiley v.

State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002)).

      Here, the excluded evidence was relevant to appellant’s theory that she did

not possess the requisite mens rea but its exclusion did not prevent her from

presenting a defense. In reviewing the record, it is clear from Dr. Lagrone’s and

Latiolais’s testimony that appellant had suffered panic attacks in the past and that

                                         7
she was having an attack that day. Dr. Lagrone testified that he had treated

appellant for nine years, she suffered from post-traumatic stress disorder which

caused her to have severe panic attacks, and during these attacks appellant would

not be aware of the risks associated with her actions.        Further, Dr. Lagrone

unequivocally testified that appellant was experiencing a panic attack on the day in

question.3 When asked about the incident, Latiolais described appellant as having

“a total meltdown” and “a full-blown episode” and that appellant was loud and not

acting normally. When defense counsel asked Latiolais if she had ever observed

appellant have a panic attack, Latiolais responded, “[y]es, I have.” Thus, the jury

heard testimony from both Dr. Lagrone and Latiolais that appellant had

experienced panic attacks in the past and was having an attack that day—this

evidence, along with Dr. Lagrone’s testimony that during these attacks appellant

would not be aware of the risks associated with her actions, is sufficient evidence

for appellant’s defense of reduced mental capacity. Further, it is likely that Dr.

Lagrone’s testimony was far more persuasive, given his qualifications and history


3
      Dr. Lagrone testified:

             What I heard on the tape was a panic attack. Absolutely. This was
             not a normal person protesting the law in the wrong way, as the
             prosecutor opened her comments with. Wrong way, right way to
             protest the law. This is a person who was irrational. She had lost
             control. She was yelling and screaming because of this mental
             defect that she has.

                                          8
treating appellant, than Latiolais’s description of appellant’s prior episodes.

Potier, 68 S.W.3d at 666 (“That [the defendant] was unable to . . . present his case

to the extent and in the form he desired is not prejudicial where, as here, he was not

prevented from presenting the substance of his defense to the jury.”) (citation

omitted). Because appellant was able to present her defense, the trial court’s ruling

was not of constitutional dimension under Rule 44.2(a).

      Under Rule 44.2(b), any non-constitutional error that does not affect

substantial rights must be disregarded. Smith v. State, 420 S.W.3d 207, 219 (Tex.

App.—Houston [1st Dist.] 2013, pet. ref’d). “A substantial right is affected when

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

jury’s verdict.” King, 953 S.W.2d at 271 (citations omitted).4         As previously

discussed, the jury heard testimony from Latiolais and Dr. Lagrone that appellant

had experienced panic attacks in the past, that she was experiencing one on the day

in question, and that during these attacks appellant was loud and irrational and

would not be aware of the risks associated with her actions. Thus, even if the trial

court abused its discretion when it excluded Latiolais’s testimony, any such error

was harmless under Rule 44.2(b) because it was cumulative of other testimony

admitted at trial. See Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio

4
      The Court of Criminal Appeals has noted that “the standard of review under [Rule
      103(a)] is the same as that under Rule of Appellate Procedure 44.2(b).” Potier v.
      State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2007) (en banc).

                                          9
2005, pet. ref’d) (holding no harm when complained-of excluded evidence was

admitted through other testimony); Franks v. State, 90 S.W.3d 771, 805–06 (Tex.

App.—Fort Worth 2002, no pet.) (holding that because complained-of testimony

was generally cumulative of other evidence introduced in case, no harm attached).

We overrule appellant’s point of error.


                                    Conclusion


We affirm the trial court’s judgment.




                                               Russell Lloyd
                                               Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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