                         COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                              NO. 02-12-00226-CR


DONNY RAY SCOTT                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                        MEMORANDUM OPINION1

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      A Wise County jury found Appellant Donny Ray Scott guilty of injury to a

child, aggravated assault with a deadly weapon, and assault on a family member,

enhanced. The trial court assessed Appellant’s punishment at imprisonment for

ten, twenty, and two years, respectively. In four points, Appellant argues that he

was denied his Sixth Amendment right to confront the witnesses against him; the

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       See Tex. R. App. P. 47.4.
evidence is insufficient to prove injury to a child and aggravated assault with a

deadly weapon; the trial court erred by denying his motions for mistrial when two

extraneous offenses came before the jury and when the State made improper

jury argument. We reject these arguments and affirm the trial court’s judgment.

                                     FACTS

      A summary of the facts, as proved at trial, is necessary to the disposition of

the case. On the day of the charged offenses, June 22, 2011, Appellant, his wife

Amy, their two sons Zane and Ashton, and Appellant’s father-in-law Tommy

Burns all lived together in a house in Wise County. That evening, Appellant and

Amy argued over the disciplining of Zane, who was a child under fourteen years

of age and somewhat mentally challenged. Amy questioned Appellant about

bruises on the boy that appeared to be fresh. Appellant admitted that he had

struck Zane with a belt that had a large buckle because Zane would not listen to

him. He also admitted to his cousin, Stacy Spraggins, that he had struck Zane,

leaving marks on Zane’s face and legs.

      The argument escalated into a physical confrontation, and Appellant hit

Amy on the side of her head. Burns told Appellant to either stop his assault on

Amy or leave the house. Appellant responded, not by stopping his assault on

Amy, but by striking Burns’s head with a chair, knocking him to the ground. He

then left but returned with a metal rod, which he used to hit Burns on his head a

second time.    Appellant and Burns then struggled on the floor, with Burns

sustaining cuts to his hands. Burns regained his footing, but Appellant once


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again hit him with a chair.     Burns subsequently drove himself to a nearby

hospital, where doctors determined that he had sustained two skull fractures and

multiple cuts to his hands.

    CONFRONTATION CLAUSE AND SUFFICIENCY OF THE EVIDENCE

      Appellant combines two theories of relief in his first point. First, he argues

that the State’s failure to call Zane to the witness stand violated his Sixth

Amendment right to confront the witnesses against him. See U.S. Const. amend.

VI. The State responds that Appellant’s Sixth Amendment right to confrontation

was not implicated because the State offered no testimonial evidence from Zane,

who attended trial but did not testify. See Crawford v. Washington, 541 U.S. 36,

50–52, 124 S. Ct. 1354, 1363–64 (2004).

      The Confrontation Clause of the Sixth Amendment provides that in all

criminal prosecutions the accused shall enjoy the right to be confronted with the

witnesses against him. U.S. Const. amend. VI. The Confrontation Clause is

implicated when the State offers a testimonial out-of-court statement made from

a witness who is absent from trial and whom the defense had no prior opportunity

to cross-examine. See Crawford, 541 U.S. at 50–54, 59, 124 S. Ct. at 1363–65;

1369; see also Woodall v. State, 336 S.W.3d 634, 641–43 (Tex. Crim. App.

2011).

      Appellant cannot prevail on his Confrontation Clause claim for two

reasons: Zane appeared at Appellant’s trial and Appellant could have called him




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to testify, and no testimonial statement by Zane was offered or admitted at trial.

Therefore, no Sixth Amendment violation occurred.

      Appellant also argues that because Zane did not testify the State failed to

prove the element of pain, and, therefore, the evidence is insufficient to support

his conviction for injury to a child. The State argues in response that, even

without testimony from Zane, ample evidence was adduced at trial to prove the

element of pain.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). Even if Appellant’s Sixth Amendment Confrontation Clause

claim had merit, which it does not, there was sufficient evidence adduced at trial

from which the jury could have reasonably concluded that, on the day in

question, Appellant caused Zane to suffer pain. Appellant admitted to Amy on

the day in question that he had struck Zane with a belt that had a large buckle;

Appellant admitted to Spraggins that he had whipped Zane to ―discipline‖ him;

marks on Zane’s body were fresh on that day; and Amy testified that the marks

on Zane that she saw that day had not been present earlier in the day. The

injuries on Zane’s body were consistent with Zane having felt accompanying

pain. See Tex. Penal Code Ann. §§ 22.04(a)(3) (bodily injury) and 1.07(a)(8)


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(pain) (West Supp. 2012). In sum, the evidence was sufficient to prove beyond a

reasonable doubt that Zane suffered pain inflicted by Appellant. We overrule

point number one.

      In his second point, Appellant contends that the evidence is insufficient to

prove aggravated assault with a deadly weapon. Appellant appears to argue that

Burns’s testimony at trial was not worthy of belief because he was intoxicated at

the time of the assault and because he left out salient facts when questioned by

authorities. Testimony by Dr. Martin, Burns’s attending physician at the hospital,

established that Burns had ingested alcohol at the time in question but that he

did not exhibit any signs of intoxication. Dr. Martin was able to obtain a narrative

from Burns about how he had sustained the injuries, and Burns’s narrative was

consistent with Amy’s statement to police officers.

      Conflicts in the evidence, without more, are for the jury to resolve, and

such conflicts are not enough to render the evidence insufficient to support a

verdict. See Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993). As a

reviewing court, we must give deference to the trier of fact to fairly resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from the evidence. King v. State, 254 S.W.3d 579, 582 (Tex. App.—

Amarillo 2008, no pet.); see also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007).

      The record shows that a number of corroborating facts were presented to

the jury from which it could have observed and reasonably concluded that the


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aggravated assault occurred as Burns described it. Amy’s testimony essentially

dovetailed with Burns’s as to Appellant’s assaultive conduct.          And Burns’s

statement to Dr. Martin at the hospital concerning what happened that evening

was consistent with Amy’s version, and was consistent with the location and

physical appearance of Burns’s wounds. For example, Burns said that Appellant

hit him with a chair twice that evening, and x-rays showed that Burns had two

skull fractures. Any conflicts that appear in the record of this case were resolved

by the jury, and there is ample record evidence to support the jury’s verdict

beyond a reasonable doubt. We overrule point number two.

                      EXTRANEOUS OFFENSE EVIDENCE

      In point number three, Appellant argues that the trial court erred by

denying his motions for mistrial, both of which concerned extraneous bad acts

evidence. See Tex. R. Evid. 404(b).2 In the first instance, Officer Clint Caddell,

when asked by the prosecutor what was done with Appellant after his arrest,

began by responding that Appellant had outstanding warrants from another

agency.    The trial court sustained Appellant’s Rule 404(b) objection and

instructed the jury to disregard but denied Appellant’s motion for mistrial.



      2
          Appellant also argues that these extraneous bad acts were inadmissible
under Texas Rule of Evidence 404(b). However, it is not necessary for this court
to address that question because Appellant’s objections to the extraneous acts
were sustained and instructions to disregard were given to the jury, which leaves
this court with the sole question of whether the trial court erred by denying a
mistrial.


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      In the second instance, Amy testified about a conversation she had had

with Appellant about the nature and extent of Zane’s injuries.          Among other

things, she told the jury that she had mentioned to Appellant that ―we had been

through this before.‖ The trial court overruled Appellant’s Rule 404(b) objection

and instructed the jury to disregard but denied Appellant’s motion for mistrial.

      Appellant argues that the harm done by the mention of these extraneous

bad acts was cumulative and could have been cured only by a new trial. The

State counters that the mention of the extraneous bad acts was incidental and

harmless because the trial court promptly instructed the jury to disregard and

later gave a limiting instruction to the jury in the court’s charge.

      We review the trial court’s denial of a motion for mistrial under an abuse-

of-discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004). In doing so, we consider: (1) the prejudicial effect (or ―severity‖) of the

misconduct, (2) the curative measures undertaken, if any, and (3) the certainty of

conviction absent the misconduct. Archie v. State, 340 S.W.3d 734, 739 (Tex.

Crim. App. 2011).

      With respect to Officer Caddell’s ―warrants‖ testimony, there is no

indication in the record what the warrants were for. Indeed, as far as the jury

knew, the warrants could have been for traffic offenses, parking tickets, or toll

tags; so, the prejudicial effect of Officer Caddell’s testimony was slight.

Moreover, the trial court employed two curative measures: a prompt instruction

to disregard and a limiting instruction in the court’s charge.         Finally, Officer


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Caddell’s ―warrants‖ testimony could not have been significant in a case with two

eyewitnesses and Appellant’s confession to his cousin. In view of these facts,

we discern no abuse of discretion in the trial court’s denial of Appellant’s motion

for mistrial following Officer Caddell’s ―warrants‖ testimony.

      With regard to Amy’s previous-discipline (―we had been through this

before‖) testimony, as far as the jury knew she could have been referring to the

fact that she and Appellant had disagreed previously on the proper discipline for

Zane, rather than on a specific beating characterized by bruises and marks.

Again, the trial court utilized two curative measures:       a prompt instruction to

disregard and a limiting instruction in the court’s charge.        And, as with the

―warrants‖ testimony, the evidence of guilt in this case is arguably overwhelming.

In view of these facts, we discern no abuse of discretion in the trial court’s denial

of Appellant’s motion for mistrial following Amy’s previous-discipline testimony.

We overrule Appellant’s third point.

                                JURY ARGUMENT

      In his final and fourth point, Appellant complains of the trial court’s denial of

his motion for mistrial made in response to the following remark by the

prosecutor during jury argument: ―So, if you believe Amy, which I don’t see any

reason not to believe Amy–.‖ Appellant contends that, with this argument, the

prosecutor was attempting to interject his personal feelings into the case. The

trial judge sustained Appellant’s objection to the argument and instructed the jury

to disregard but denied Appellant’s motion for mistrial. Appellant argues now that


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because the harm done by the prosecutor was incurable, a mistrial was the

proper remedy. The State argues, among other things, that Appellant had the

burden to bring in witnesses to impeach Amy’s credibility. The presumption of

innocence, however, defeats that contention, without the necessity of citation of

authority.

      The standard of review is the same as that set out above in our discussion

of Appellant’s third point: whether the trial court abused its discretion by denying

Appellant’s motion for mistrial. See Primes v. State, 154 S.W.3d 813, 815 (Tex.

App.—Fort Worth 2004, no pet.); see also Hawkins, 135 S.W.3d at 77. And the

same test for the determination of harm caused by the prosecutor’s argument, as

illuminated in point three, applies here, that is, (1) the prejudicial effect of the

misconduct, (2) the curative measures undertaken, and (3) the certainty of

conviction absent the misconduct. See Archie, 340 S.W.3d at 739.

      It would appear that this jury argument was moderately prejudicial. It is

axiomatic that a prosecutor has a duty to keep his view of the evidence to

himself. See generally Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App.

1973). However, the trial court immediately sustained Appellant’s objection to

the remark and instructed the jury to disregard it. The jury was also instructed in

the court’s charge to consider only evidence presented from the witness stand.

The third factor, the certainty of the conviction absent the misconduct, weighs

heavily in the State’s favor. Even assuming, arguendo, veracity problems with

Amy’s testimony, the remainder of the evidence of Appellant’s guilt is quite


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strong. The eyewitness testimony of Burns, Appellant’s cousin who witnessed

his confession regarding Zane, and the physical evidence of Burns’s beating, all

add up to an assaultive rampage committed by Appellant. In view of these facts,

we discern no abuse of discretion in the trial court’s denial of Appellant’s motion

for mistrial following the prosecutor’s improper jury argument. Accordingly, we

overrule Appellant’s fourth point.

                                     CONCLUSION

      Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.



                                                   CHARLES F. CAMPBELL
                                                   JUDGE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and CHARLES F. CAMPBELL
(Senior Judge, Retired, Sitting By Assignment).

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

DELIVERED: October 17, 2013




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