                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-16-00243-CR


                             JUAN CASAS MEDELLIN, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 221st District Court
                                    Montgomery County, Texas
                Trial Court No. 12-10-11393-CR, Honorable Lisa Michalk, Presiding

                                             July 18, 2017

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        Juan Casas Medellin (appellant) appeals his conviction for assault of a family

member after a previous conviction for family violence. Three issues pend before us.

They involve 1) the admission of evidence relating to a prior conviction and the contents

of a jailhouse phone call and 2) the assessment of attorney’s fees. We modify the

judgment and affirm it as modified.1



        1
          Because this appeal was transferred from the Ninth Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this court.
See TEX. R. APP. P. 41.3.
       Background

       Appellant returned to his abode late from a party after ingesting alcoholic

beverages.    There he encountered Amalia Guasoson, the woman he was living with at

the time. A fight ensued between the two about his desire to drive to Galveston and

over his car keys. When Guasoson refused to relinquish them, he grabbed her by the

arm and pushed her to the floor hard enough for her to injure her back, and this was the

version of events she imparted to medical personnel after being taken to the hospital.

       Guasoson would later testify that she sustained the injury after tripping and falling

rather than appellant pushing her to the ground. So too would she testify that appellant

never drove while intoxicated. This led the State to proffer evidence tending to rebut

those comments, and that evidence lies at the heart of appellant’s complaints.

       Admission of Prior Conviction

       The first issue we address is that wherein appellant argues the trial court erred in

admitting evidence of his prior conviction for driving while intoxicated.

       The standard of review is abused discretion. Johnson v. State, 490 S.W.3d 895,

908 (Tex. Crim. App. 2016). A trial court abuses its decision when the decision falls

outside the zone of reasonable disagreement. Id. And, if correct under any applicable

theory of law, the decision “will not be disturbed even if the trial court gave a wrong or

insufficient reason for the ruling.” Id.

       Regarding the argument that the State may offer evidence of an extraneous

offense to correct a false impression only if the false impression is created by

questioning conducted by the defendant, we say the following. The grounds underlying



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appellant’s objection at trial were 1) “[w]ell, just note my objection to any—that the

prejudice that would be shown by that is outweighed by any benefit that might be—that

will taint this jury against this Defendant about something that happened before she

even met this man,” 2) the witness “doesn’t have personal knowledge,” 3) “that is [an]

extraneous offense,” and 4) “those old DWIs are so old that it is not during the time that

they have been together.”2 As can be seen, nothing was said of the defense being the

only party that may broach the issue. Because it was not mentioned below and the

grounds raised on appeal must comport with those uttered at trial, it was not preserved.

Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (stating that “[i]f a trial

objection does not comport with arguments on appeal, error has not been preserved”).

       Regarding the argument that the State could not impeach its own witness, we

say the following. Not only was that not mentioned within the objections mentioned at

trial, but also any party may attack the credibility of a witness, including the party that

called him. TEX. R. EVID. 607 (West 2016); Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim.

App. 1999). So, Rule 607 afforded the State the ability to impeach its own witness.

       Regarding the argument that the State called Guasoson simply as a means of

admitting otherwise inadmissible evidence, we say the following. While undergoing

examination by the State about the circumstances leading to the assault and fight over

the car keys, Guasoson twice declared that appellant never drove while drunk. The

State believed the utterance created a false impression of appellant since it had

evidence of his being convicted for driving while intoxicated. Leave was sought from

the court to correct that false impression by asking if the witness knew of the conviction.


       2
          Appellant does not complain here about the absence of personal knowledge or the age of the
convictions.

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The trial court initially denied the request. After a renewed request on the part of the

State, the trial court observed the following; 1) the witness “made some unequivocal

type statements that he [appellant] has her heart and he is a good guy and he doesn’t

ever drink and drive,” 2) “I don’t think it was elicited by the State,” 3) “I don’t think they

tried to open their own door,” and 4) “[i]n fact, she blurted that out not in response to the

question.” Thus, it granted the State permission to ask.

       The record can be reasonably interpreted as supporting the trial court’s

observations. Furthermore, it is difficult to deny that the State had a legitimate and

permissible reason to call Guasoson despite knowing that she may change aspects of

her testimony.    Indeed, she was not only the victim of the crime but also the only

witness (other than appellant) to the facts leading to her injury and accusations of

assault.   And, the State was delving into those legitimate areas when the witness

“blurted . . . out” her unsolicited comment that created the false impression.            So,

concluding that the State did not call her simply to interject inadmissible evidence via

impeachment falls within the zone of reasonable agreement.           In other words, it may

well be, as argued by appellant, that a court may err in “allow[ing] the State to admit

impeachment evidence for the primary purpose of placing evidence before the jury that

was otherwise inadmissible.”       Hughes v. State, 4 S.W.3d at 5.           Yet, here, the

circumstances before the trial court were enough for it to conclude that the primary

purpose for impeaching Guasoson was not simply to place inadmissible evidence

before the jury but rather to correct a false impression she unilaterally created. See

Kelley v. State, No. 05-15-00545-CR, 2016 Tex. App. LEXIS 3764, at *16-17 (Tex.

App.—Dallas Apr. 12, 2016, pet. ref’d) (mem. op., not designated for publication)



                                              4
(concluding that the trial court did not err in permitting the State to impeach its witness

with otherwise inadmissible evidence because it had a legitimate purpose for calling the

witness and elicited favorable admissible testimony aside from impeachment). It short,

the trial court did not abuse its discretion in permitting the State to ask Guasoson if she

knew of appellant’s prior conviction for driving while intoxicated.

       Jailhouse Call

       Appellant next contends that the trial court erred in admitting the recording of

phone calls placed by appellant to Gausoson from jail. The substance of the calls was

not objectionable to appellant. Rather, he sought to have the trial court redact reference

to the call being placed from jail. The court’s refusal to do that serves as the basis of

his complaint. Including that reference was tantamount to sitting the accused before the

jury in prison garb or restraints, which is impermissible. We overrule the issue.

       To the extent that a court has said that a defendant may not be presented to the

jury in physical restraints, jail clothing, or other indicia of guilt, Oliver v. State, 999

S.W.2d 596, 599 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d), reference to the

locale from which the calls were placed was fleeting. Indeed, as held by the Beaumont

Court of Appeals, “[b]rief views of a restrained or jail-clothed defendant do not require

reversal.” Young v. State, No. 09-06-00429-CR, 2007 Tex. App. LEXIS 5864, at *3

(Tex. App.—Beaumont July 25, 2007, pet. ref’d) (mem. op., not designated for

publication). “Reversal occurs only in cases where the defendant is restrained or forced

to wear jail clothing throughout the trial, or where a restraint system hampers

communication with counsel.” Id. at *5. Hearing from whence the calls were placed




                                             5
without more is not sufficient to place our circumstance into the class encompassed in

Oliver.



          Court-Appointed Attorney’s Fees

          By his third issue, appellant contends that the trial court abused its discretion by

assessing $7,362 in court-appointed attorney’s fees against appellant.             The State

concedes the issue.        We sustain it and will modify the judgment to remove the

assessment.

          The judgment of the trial court is modified to delete the assessment of $7,362 in

attorney’s fees against appellant. As modified, the judgment is affirmed.



                                                          Brian Quinn
                                                          Chief Justice

Do not publish.




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