                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00033-CR


ELIZABETH MONNIQUE                                                   APPELLANT
DUERSON

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION 1

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      In two issues that concern the trial court’s decision to overrule evidentiary

objections during her trial for intoxication manslaughter, 2 appellant Elizabeth




      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Penal Code Ann. § 49.08(a) (West 2011).
Monnique Duerson appeals her sentence of three years’ confinement. 3               We

affirm.

                                   Background Facts

       One early morning in January 2010, appellant, accompanied by her

younger brother Benton “Billy” Crow, drove on Kemp Street in Wichita Falls while

intoxicated. Appellant and Billy had just wrapped up a night of drinking and

socializing at an apartment get-together and at a local bar called Fat Albert’s.

          Appellant and Billy planned to fly to appellant’s residence in Florida and

wanted to say goodbye to their brother Abraham Crow before their cross-country

trip. While having an alcohol concentration of more than twice the legal limit, 4

appellant lost control of the car and crossed the road’s median, hitting two trees

and a light pole. The car ejected Billy. He died immediately. 5

          A grand jury indicted appellant with intoxication manslaughter. Before trial,

the State designated Joe Lemond as an expert in crash investigations and

reconstructions. Appellant filed a verified application to be placed on community

supervision if she was convicted, and she also elected for the jury to assess her

punishment if she was convicted.


          3
      Appellant prays only that we “reverse the case for a new trial on
punishment.”
          4
          See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011).
          5
       A medical examiner found that Billy died of massive blunt force trauma to
his head and to other areas of his body.


                                            2
       While appellant was awaiting trial, one early morning in November 2011,

she engaged in a physical altercation with her boyfriend in Wichita Falls.

Specifically, after visiting Fat Albert’s (where she had drunk alcohol before the

accident that killed Billy) and drinking beer, appellant and her boyfriend verbally

argued while he drove her home. Appellant got out of the car and walked toward

her residence. Appellant’s boyfriend eventually caught up to her and grabbed

her arm in an attempt to bring her back inside his vehicle.         Appellant, who

testified at trial that she had become scared at that point, then punched her

boyfriend in the mouth, resulting in him having a bloody lip and a loose tooth and

her having a cut on her knuckle.

      The police believed that appellant was the primary aggressor in the

altercation, but the district attorney’s office eventually dismissed a case relating

to the altercation. Before appellant’s intoxication manslaughter trial, the State

provided written notice that if appellant was convicted, it planned to present

evidence of the November 2011 incident concerning appellant’s visit to Fat

Albert’s and her altercation with her boyfriend.

      In front of a jury, appellant pled guilty to intoxication manslaughter. During

the resulting unitary proceeding to determine her punishment, 6 appellant

objected to testimony concerning the fact that she had visited Fat Albert’s while

      6
       See Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008) (“When
a defendant pleads guilty to a jury, the jury need not return any verdict of guilty.
The case simply proceeds with a unitary punishment hearing.”), cert. denied, 555
U.S. 1105 (2009).


                                         3
awaiting trial and was involved in a physical confrontation shortly thereafter. The

trial court overruled this objection.

      The State’s expert witness, Lemond, concluded that on the night of

appellant’s accident, she was driving at a minimum speed of anywhere between

seventy-three and ninety-four miles per hour. Appellant objected to Lemond’s

testimony under rule of evidence 702, claiming that he lacked sufficient

knowledge of the underlying methodology and formula that he used in his

testimony. The trial court overruled that objection as well, stating that Lemond’s

specialized knowledge in his field was sufficient to aid the jury in understanding

the evidence or determining a fact or issue in the case.

      After considering the evidence and arguments presented by the parties,

the jury assessed appellant’s punishment at three years’ confinement, though

appellant had asked the jury to consider an award of community supervision.

The trial court sentenced appellant in accordance with the jury’s verdict, and after

appellant unsuccessfully sought a new trial on punishment, she brought this

appeal.

 The Admission of Evidence Concerning Appellant’s Return to Fat Albert’s

      In her first issue, appellant argues that the trial court erred when it

overruled her objection to the admission of evidence concerning her return to Fat

Albert’s for drinks while she was awaiting trial.    Appellant contends that the

evidence was wrongfully admitted under article 37.07 of the code of criminal

procedure because it was not a “bad act.” Specifically, appellant argues that for


                                         4
evidence to be admissible under article 37.07, “there must be more than some

melodramatic connection to the case; there must be some reprehension or moral

repugnance that speaks to policy reasons underlying [article 37.07].”

      We review a trial court’s admission of evidence over a defendant’s

objection for an abuse of discretion. Sandone v. State, 394 S.W.3d 788, 791

(Tex. App.—Fort Worth 2013, no pet.). An abuse of discretion occurs when a

trial court’s decision is so clearly wrong as to lie outside the zone of reasonable

disagreement. Id.

      “Code of Criminal Procedure Article 37.07, Section 3(a) governs the

admissibility of evidence during the punishment phase of a non-capital trial.”

Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004) (footnote omitted).

The State contends that article 37.07 does not require evidence of a defendant’s

actions subsequent to an offense to be a “bad act” for a trial court to admit that

evidence regarding the defendant’s punishment.           Article 37.07 does not

expressly limit the admissibility of punishment evidence to bad acts; instead, it

states that as relating to a defendant’s punishment, a trial court may admit

evidence of “any matter the court deems relevant to sentencing,” including “but

not limited to” the defendant’s character or evidence of an extraneous crime or

bad act 7 that is shown beyond a reasonable doubt to have been committed by


      7
       Bad acts under article 37.07 are not required to qualify as criminal
offenses. See Haley v. State, 173 S.W.3d 510, 514–15 (Tex. Crim. App. 2005);
Cox v. State, 931 S.W.2d 349, 357 (Tex. App.—Fort Worth 1996) (holding that a
defendant’s act of following a woman to her apartment, jiggling her doorknob,

                                        5
the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp.

2013); see Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st

Dist.] 2000, pet. ref’d) (“[T]he plain language of article 37.07, section 3(a)

indicates that evidence of a defendant’s conduct may be admissible even if the

conduct does not constitute an offense or bad act.”).

      In Sims v. State, during the punishment phase of a trial, the State

introduced testimony regarding Sims’s encounters with law enforcement while

she was awaiting trial. 273 S.W.3d 291, 293 (Tex. Crim. App. 2008). Sims

objected to testimony of a police officer who described an incident where Sims

repeatedly changed her story when the officer responded to an alleged assault

between Sims and a man. Id. The court of criminal appeals held that the trial

court had not erred by admitting the testimony under article 37.07. Id. at 295–97.

The court reiterated that testimony relating to a defendant’s proper punishment

needs only to be relevant to be admissible, and the court further stated,

      The Legislature has expressly provided that “relevant” punishment
      evidence includes, but is not limited to, both character evidence in
      the form of opinion testimony as well as extraneous-offense
      evidence. Because there are no discrete fact issues at the
      punishment phase of a non-capital trial, we have ruled that the
      definition of “relevant,” as stated in Rule 401 of the Texas Rules of

and frightening her was admissible under article 37.07), pet. dism’d, 951 S.W.2d
5 (Tex. Crim. App. 1997); see also Whittle v. State, Nos. 02-03-00125-CR, 02-
03-00126-CR, 2004 WL 102346, at *1 (Tex. App.—Fort Worth Jan. 22, 2004, pet.
ref’d) (mem. op., not designated for publication) (“While possession of [sexual
cartoon images] is not an illegal act, we do not agree with appellant that it is an
‘innocent’ act, nor do we agree that to be admissible under article 37.07, section
3(a)(1), the act must constitute a criminal offense.”).


                                         6
      Evidence, does not readily apply to Article 37.07. What is “relevant”
      to the punishment determination is simply that which will assist the
      fact finder in deciding the appropriate sentence in a particular case.
      When the jury assesses punishment, it must be able to tailor the
      sentence to the particular defendant, and relevance is simply “a
      question of what is helpful to the jury in determining the appropriate
      sentence for a particular defendant in a particular case.”

Id. at 295 (emphasis added) (footnotes omitted) (quoting Ellison v. State, 201

S.W.3d 714, 719 (Tex. Crim. App. 2006)).

      During its closing argument here, the State asked the jury to consider

whether appellant’s conduct while awaiting trial indicated suitability for

community supervision. The court in Ellison explained that article 37.07 allows

for evidence related to a defendant’s suitability for community supervision,

stating, “The actions by the Legislature in continually broadening Section 3(a)’s

language and a plain reading of that section persuade us to conclude that

suitability is a matter ‘relevant to sentencing’ under the current version of Article

37.07, Section 3(a) when a defendant seeks community supervision.”               201

S.W.3d at 722.

      Appellant argues that the evidence of her revisiting Fat Albert’s and getting

into a physical altercation with her boyfriend must have presented “some

reprehension or moral repugnance that speaks to the policy reasons underlying”

article 37.07, citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App.

2000). But the court in Mendiola explained that admissibility under article 37.07

is a function of policy, and the court remanded the case to be viewed under the

purview of Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999). Mendiola,


                                         7
21 S.W.3d at 285. The court in Rogers emphasized that trial courts may admit

evidence during the punishment stage that relates to the likely recurrence of

criminal behavior. 991 S.W.2d at 266.

      The jury’s awareness of appellant’s behavior, while awaiting trial for

intoxication manslaughter, of visiting the same bar where she had drunk alcohol

before having the accident that killed her brother, drinking alcohol again, and

exercising questionable judgment again after drinking alcohol by arguing with her

boyfriend and then engaging in a physical altercation with him satisfies this

emphasis on the policy reasons behind article 37.07. At trial, appellant conceded

that returning to Fat Albert’s to drink beer was not the “wisest choice” that she

could have made. And appellant placed her ability to make wise choices in the

future into relevance by seeking an award of community supervision. 8 Thus, we

conclude that the trial court could have reasonably determined that the evidence

of appellant’s return to Fat Albert’s and her subsequent altercation with her

boyfriend was helpful to the jury in assessing appellant’s punishment and was

therefore admissible. See Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim.

App. 2012) (“Relevance is a question of what is helpful to the jury to determine

      8
       Appellant’s counsel revealed in his opening statement that appellant was
seeking to be placed on community supervision. Counsel asked the jury not to
“continue [the] tragedy by incarcerating” appellant but to instead make a “wise
decision [by leaving] a productive, beloved member of society with her family in a
town in the economy.” An employee with the Wichita County probation office,
who appellant called to testify, indicated that if appellant was placed on
community supervision, she would not be able to go to places where alcohol was
served.


                                        8
the appropriate sentence for the particular defendant.”); Erazo, 144 S.W.3d at

491 (“[W]e have explained that relevance during the punishment phase of a non-

capital trial is determined by what is helpful to the jury.”); see also Sims, 273

S.W.3d at 296 (“In determining whether the appellant can adequately complete

the demands of community supervision, a sentencer might rationally want to take

into account testimony that the appellant lied to a peace officer.”).

       Because the trial court could have reasonably found that the State’s

evidence of appellant’s behavior while awaiting trial met the standard of

admissibility set forth by section 3(a)(1) of article 37.07, we hold that the trial

court did not abuse its discretion by admitting the evidence, and we overrule

appellant’s first issue. See Sandone, 394 S.W.3d at 791.

                    The Admission of Lemond’s Testimony

      In her second issue, appellant contends that the trial court erred by

overruling her objection to Lemond’s testimony because the testimony did not

meet the standards for admission of expert testimony required by Kelly v. State,

824 S.W.2d 568, 573 (Tex. Crim. App. 1992). 9          In the trial court, appellant

contended that Lemond was not fit to testify concerning conclusions that he

made while reconstructing the scene of the offense because he had no



      9
        Kelly requires science-based expert testimony to meet three criteria:
“(a) the underlying scientific theory must be valid; (b) the technique applying the
theory must be valid; and (c) the technique must have been properly applied on
the occasion in question.” 824 S.W.2d at 573.


                                          9
knowledge of the underlying methodology that he applied to formulate his

conclusions.

      Lemond testified that he did not know the underlying data in the formulas

he used, the testing performed to yield the formulas, whether the science behind

the formulas was peer-reviewed, or the formulas’ rates of error.          Although

appellant claims that Lemond’s lack of knowledge of the underlying data behind

the formulas yielded unreliable testimony that the trial court improperly admitted,

appellant testified that her car kept going “faster and faster” on the night of the

offense and did not slow down. Along with that testimony, the trial court admitted

autopsy reports detailing Billy’s life-ending injuries and photographs of the scene.

The photographs showed that the car appellant was driving had been torn apart,

that the metal pole that Billy had hit was bent at an angle and was covered in

Billy’s blood, and that the remnants of Billy’s brain, which had avulsed from his

skull, remained on the street.

      The State contends that unchallenged evidence presented to the jury

indicates that appellant was traveling at a high speed and that with respect to

Lemond’s testimony on appellant’s range of speed, he merely “put a number on

the obvious.”   Thus, the State contends that even if the trial court erred by

admitting Lemond’s testimony about appellant’s speed at the time of her crash,

that admission was harmless error.

      Assuming without deciding that the trial court improperly admitted

Lemond’s testimony, we must conduct a harm analysis to determine whether the


                                        10
alleged error calls for reversal of the judgment. 10 Tex. R. App. P. 44.2. If the

alleged error is not of a constitutional dimension, we apply rule 44.2(b) and

disregard the alleged error if it did not affect appellant’s substantial rights. Tex.

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

1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Generally, error in the

admission of evidence is not constitutional in nature and is therefore subject to a

harm analysis under rule 44.2(b). James v. State, 335 S.W.3d 719, 726 (Tex.

App.—Fort Worth 2011, no pet.); Matz v. State, 21 S.W.3d 911, 912 (Tex. App.—

Fort Worth 2000, pet. ref’d) (op. on remand).

      A substantial right is affected when the error had a substantial and

injurious effect in determining the jury’s verdict. King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776,

66 S. Ct. 1239, 1253 (1946)). But an error does not affect a substantial right if

we have “fair assurance that the error did not influence the jury, or had but a

slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      In King, King was on trial for capital murder and objected to the admission

of certain exhibits that the State presented and the trial court admitted into

evidence.   953 S.W.2d at 271.       The exhibits contained, among other facts,

information on King’s previous incarcerations for theft and traffic tickets for the

      10
       In her brief, appellant does not address how the admission of Lemond’s
testimony was harmful.


                                         11
jury to consider during the punishment stage of King’s trial for capital murder. Id.

The court of criminal appeals assumed without deciding that the trial court had

improperly admitted those exhibits but concluded that other, properly admitted

evidence, including evidence of the brutal murder that King had committed,

defused those exhibits’ potential harm. Id. at 273.

      Considering all of the evidence published to the jury in this case, we

conclude that appellant’s own testimony regarding her speed, 11 photographs

showing the overwhelming damage to the car that appellant was driving on the

night of the offense, 12 photographs showing the severity of Billy’s life-ending

injuries, photographs showing the severity of the damage appellant caused to the

light pole, and a crime scene video conveying similar information 13 defused the

potential harm of the trial court’s allegedly improper admission of Lemond’s

testimony regarding his conclusions from the accident, including appellant’s

minimum speed and the manner in which Billy was ejected from the car and died.

In other words, Lemond’s objected-to testimony established that appellant was


      11
        Appellant testified that as she was driving to Abraham’s house, when she
pushed the accelerator pedal, the “car started to go faster and faster.” Appellant
also testified that she attempted to slow down by pushing the brake pedal several
times but that the car would not do so.
      12
        The accident caused the back end of appellant’s car to completely
separate from the front end; parts of the car were scattered across a significant
stretch of the road.
      13
        Lemond spent a significant portion of his testimony before the jury
narrating this video. Appellant did not object to the video’s admission.


                                        12
driving very fast, that she did not brake before the accident, and that the accident

gruesomely caused Billy’s death, and the unobjected-to evidence, including

appellant’s testimony, confirmed those facts. Thus, assuming without deciding

that the trial court’s admission of Lemond’s testimony was erroneous, we

conclude that the alleged error was harmless, and we overrule appellant’s

second issue. See Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271, 273.

                                   Conclusion

      Having overruled appellant’s issues, we affirm the trial court’s judgment.



                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

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

DELIVERED: December 12, 2013




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