                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-415-CR


RICHARD LEE WILLIAMS                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellant Richard Lee Williams pleaded guilty to aggravated assault with

a deadly weapon and a jury sentenced him to sixty years’ confinement. In two

points, Williams argues that the trial court abused its discretion in admitting




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          … See Tex. R. App. P. 47.4.
certain testimony and that, as a result, Williams’s Fifth Amendment rights were

violated. We affirm.

                    II. Factual and Procedural Background

      Williams, angry with his pregnant girlfriend, Tanjeneka McClellan, for

talking on the phone with the father of her child from a previous relationship,

cut and stabbed her multiple times with a kitchen knife. Because Williams

pleaded guilty, the only issue before the jury was punishment.

      During the punishment trial, the State introduced into evidence Williams’s

history of violence toward Tanjeneka. The jury also heard, over Williams’s

objections, testimony from Stanley Drzewiecki, a former army investigator, who

testified that Williams, while in the army some twenty-five years earlier, had

confessed to and been convicted of murdering his girlfriend who he believed to

be pregnant.    After hearing all the evidence, the jury assessed Williams’s

punishment at sixty years’ confinement. This appeal followed.

                            III. Standard of Review

      A trial court’s ruling on the admissibility of evidence is reviewed under an

abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003). If the trial court’s ruling was within the zone of reasonable

disagreement, there is no abuse of discretion.      Id.   Further, a trial court’s

decision regarding admissibility of evidence will be sustained if correct on any

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theory of law applicable to the case, even when the court’s underlying reason

for the decision is wrong. Romero v. State, 800 S.W.2d 539, 543–44 (Tex.

Crim. App. 1990) (citing Spann v. State, 448 S.W.2d 128 (Tex. Crim. App.

1969)).

                            IV. Rule 403 Objection

      In his first point, Williams argues that the trial court abused its discretion

in allowing Drzewiecki’s testimony because the danger of unfair prejudice

substantially outweighed the probative value of the testimony.

A. Applicable Law

      1. Preservation of Error

      To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).




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      To preserve error, a party must continue to object each time the

objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273

(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); Ethington v. State, 819

S.W.2d 854, 858–59 (Tex. Crim. App. 1991).          A trial court’s erroneous

admission of evidence will not require reversal when other such evidence was

received without objection, either before or after the complained of ruling.

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Johnson v.

State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied, 501 U.S.

1259 (1991), overruled on other grounds by Heitman v. State, 815 S.W.2d

681 (Tex. Crim. App. 1991). This rule applies whether the other evidence was

introduced by the defendant or the State.      Leday, 983 S.W.2d at 718.

However, this rule does not apply if a defendant offers evidence identical to

that which he objected to earlier in order to rebut, destroy, or explain the

previously admitted evidence. Id. at 718–19; Rogers v. State, 853 S.W.2d 29,

35 (Tex. Crim. App. 1993).

      2. Admissibility of Evidence

      When a defendant pleads guilty before a jury, the proceeding becomes a

unitary trial where the State may introduce evidence allowing the jury to

intelligently exercise discretion in the assessment of punishment. Carroll v.

State, 975 S.W.2d 630, 631–32 (Tex. Crim. App. 1998). Evidence of the

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defendant's criminal record, his character, and his reputation is admissible. See

Basaldua v. State, 481 S.W.2d 851, 854 (Tex. Crim. App. 1972); see also

Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008) (explaining that

when a “defendant pleads guilty to a jury, the jury need not return any verdict

of guilty,” and that the case “simply proceeds with a unitary punishment

hearing”), cert. denied, --- S. Ct. ----, 2009 WL 56317 (U.S. Jan. 12, 2009)

(No. 08-6624).

      Evidence is relevant to punishment where it is “helpful to the jury in

determining the appropriate sentence for a particular defendant in a particular

case.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). The

evidence that may be admitted in punishment “is a function of policy rather

than a question of logical relevance,” because “[d]eciding what punishment to

assess is a normative process, not intrinsically factbound.” Sunbury v. State,

88 S.W.3d 229, 233–34 (Tex. Crim. App. 2002) (adding that one of the policy

goals is to provide “complete information for the jury to tailor an appropriate

sentence”).

      Under rule 403, however, otherwise relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice. Tex. R. Evid. 403; see Sanders v. State, 255 S.W.3d 754, 760

(Tex. App.—Fort Worth 2008, pet. ref’d) (explaining that unfair prejudice

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“arises from evidence that has an undue tendency to suggest that a decision

be made on an improper basis, commonly an emotional one”); Woodward v.

State, 170 S.W.3d 726, 729 (Tex. App.—Waco 2005, pet. ref’d) (noting that

“unfair prejudice” does not exist where the evidence merely “injures the

opponent’s case”).    Therefore, under rule 403, we reverse a trial court’s

decision to admit evidence rarely and only after a clear abuse of discretion.

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).             Factors

considered in our analysis of an issue regarding rule 403 are (1) the probative

value of the evidence; (2) the potential to impress the jury in some irrational,

yet indelible, way; (3) the time needed to develop the evidence; and (4) the

proponent’s need for the evidence. See Erazo v. State, 144 S.W.3d 487, 489

(Tex. Crim. App. 2004).

B. Analysis

      During the trial on punishment, and over Williams’s objections, the State

called Drzewiecki to the stand to testify about a murder that Williams had

confessed to and been convicted of some twenty-five years earlier.

Drzewiecki’s testimony primarily focused on statements made by Williams to

Drzewiecki during the murder investigation.     Specifically, Williams had told

Drzewiecki that he had had an argument with his girlfriend over her being




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pregnant and that he had hit her multiple times, had attempted to strangle her

with a scarf, and eventually had choked her to death with his bare hands.

      Prior to Drzewiecki’s testimony, however, Tanjeneka testified, without

objection, that Williams had told her that he had previously been convicted for

murdering a former girlfriend whom he believed to be pregnant.       Although

Tanjeneka did not go into as much detail as Drzewiecki, the majority of the

information regarding the twenty-five-year-old murder was essentially the same.

Therefore, because Williams failed to object each time the evidence was

admitted, he has failed to preserve any error for our review. Fuentes, 991

S.W.2d 267, 273.

      Even assuming the issue was properly preserved, we cannot conclude

that the trial court abused its discretion by applying the presumption of

admissibility under rule 403 and admitting Drzewiecki’s testimony. See Tex.

R. Evid. 403 (stating that to be excluded, the probative value of evidence must

be substantially outweighed by the danger of unfair prejudice); Hayes v. State,

85 S.W.3d 809, 815 (Tex. Crim. App. 2002).

      The first of the four factors—the strength of the evidence to make a fact

of consequence more or less probable—weighs strongly in favor of admissibility

because the circumstances surrounding the twenty-five-year-old murder and

those surrounding the present charge are very similar.      Further, as to the

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second and third factors, the State limited the information provided to the jury

by having Drzewiecki briefly testify as to the facts surrounding the prior murder

rather than offering Williams’s detailed, written confession into evidence.

Finally, Drzewiecki’s testimony provided the jury with an understanding of

Williams’s prior history of violence towards women. Erazo, 144 S.W.3d at

489–90.

      Therefore, for these reasons, we hold that the trial court did not abuse its

discretion in admitting Drzewiecki’s testimony and, accordingly, we overrule

Williams’s first point.

          V. Fifth Amendment Protection Against Self-Incrimination

      In his second point, Williams argues that the trial court abused its

discretion in admitting Drzewiecki’s testimony because, as a result of the

testimony, he was compelled to testify on his own behalf in violation of his

Fifth Amendment rights.

A. Applicable Law

      It is fundamental that the State may not call the defendant as a witness,

nor may the defendant be compelled to testify at trial and give evidence against

himself. Newton v. State, 629 S.W.2d 206, 207 (Tex. App.—Dallas), rev'd on

other grounds, 641 S.W.2d 530 (Tex. Crim. App. 1982); Bryan v. State, 837

S.W.2d 637, 643 (Tex. Crim. App. 1992). However, the defendant’s Fifth

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Amendment right may be waived as long as that waiver is knowingly,

voluntarily, and intelligently made. Bryan, 837 S.W.2d at 643; Brumfield v.

State, 445 S.W.2d 732, 735 (Tex. Crim. App. 1969).

      When the defendant voluntarily testifies before a jury, he is subject to the

same rules that govern the direct and cross-examination of any other witness.

Bryan, 837 S.W.2d at 643. He may therefore be “contradicted, impeached,

discredited, attacked, sustained, bolstered up, made to give evidence against

himself, cross-examined as to new matter, and treated in every respect as any

other witness testifying, except where there are overriding constitutional or

statutory prohibitions.” Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim.

App. 1981); Bryan, 837 S.W.2d at 643.

B. Analysis

      Here, Williams argues that because the trial court allowed Drzewiecki to

testify, he had no choice but to sacrifice his right against self-incrimination in

order to challenge the testimony. However, Williams’s choice to present his

version of the facts does not violate his Fifth Amendment rights. See Soria v.

State, 933 S.W.2d 46, 57 (Tex. Crim. App. 1996), cert. denied, 520 U.S.

1253 (1997) (holding that no constitutional violation is presented by the fact

that a defendant makes the difficult choice of whether to testify on his own

behalf); see also Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008,

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2010 (1968) (holding that a defendant who chooses to testify waives his

privilege against compulsory self-incrimination with respect to the testimony he

gives, and that waiver is no less effective or complete because the defendant

may have been motivated to take the witness stand in the first place only by

reason of the strength of the lawful evidence adduced against him).

      Furthermore, Williams’s attorneys expressed on more than one occasion

that it would be in his best interest not to testify.    In fact, the following

conversation between Williams and his attorneys on whether he should testify

occurred on the record:

      [Williams’s Attorney:] And after that we’re at the point where the
      Defense would probably rest and before we rest we have to decide
      whether or not you want to want to [sic] testify. I’m telling you I
      think it’s in your best interest not to testify.

      [Williams:] Yes.

      [Williams’s Attorney:] You understand that?

      [Williams:] Yes, I do.

      [Williams’s Attorney:] Okay. And I believe Mr. Rowe [Williams’s
      other attorney] has also told you that he thinks that you should not
      take the stand?

      [Williams:] Yes, he has.

      [W illiams’s Attorney:] Okay. And that is still my advice. You
      understand that?

      [Williams:] I understand.

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      [Rowe:] As is mine.

      [Williams:] Understood.

      [Williams’s Attorney:] On the other hand, we can’t keep you from
      taking the stand if you feel compelled to.

      [Williams:] I’m very compelled to.

      [Williams’s Attorney:] That’s what you want to do against our
      advice?

      [Williams:] Yes, I do.

      [Williams’s Attorney:] And you understand you can change your
      mind at any time?

      [Williams:] Yes.

      [Williams’s Attorney:] But that’s something that you decided you
      want to do?

      [Williams:] Yes, I do.

      Based on the record before us, we hold Williams knowingly, voluntarily,

and intelligently took the stand on his own behalf and therefore effectively

waived his protections against self-incrimination. See Mullane v. State, 475

S.W.2d 924, 926 (Tex. Crim. App. 1971) (holding that when a defendant takes

the stand on his own behalf and is represented by counsel, courts presume that

he does so voluntarily and with full knowledge of his rights); Bryan, 837

S.W.2d at 643. Accordingly, we overrule Williams’s second point.




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                              VI. Conclusion

     Having overruled both of Williams’s points, we affirm the trial court’s

judgment.




                                         BOB MCCOY
                                         JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).

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

DELIVERED: January 15, 2009




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