McDonald v. State

JERIMIE MCDONALD, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-21-00090-CR

Court of Appeals of Texas, Sixth District, Texarkana

March 15, 2022

Do Not Publish

Submitted: February 03, 2022

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29015

Before Morriss, C.J., Stevens and Carter, ^[*] JJ.

MEMORANDUM OPINION

Josh R. Morriss, III Chief Justice Although there was a Magistrate's Order of Emergency Protection (EPO) in effect on behalf of his ex-girlfriend, Haley Magnuson, that prohibited Jerimie McDonald from going within 250 feet of Magnuson's residence, McDonald violated the EPO two times within one week. As a result, a Lamar County jury found McDonald guilty of violating a protective order two or more times within twelve months^[1] and assessed him a punishment of eight years' imprisonment. On appeal McDonald asserts that the trial court reversibly erred by admitting an unredacted copy of the EPO. Because we find that McDonald procedurally defaulted his complaint, we affirm the trial court's judgment.

At trial, the State offered a copy of the EPO as its exhibit 1. McDonald objected to the admission of one paragraph of the EPO, which read, "This Order is valid for 91 days. [Must be 31-61 days, unless the Defendant used or exhibited a deadly weapon during the commission of an assault, in which case must be 61-91 days]." He asked that the paragraph be removed or redacted from the order because it was prejudicial and "it [went] to the underlying assault case." The trial court overruled the objection and admitted the EPO into evidence.

In his sole issue, McDonald argues that the trial court reversibly erred in admitting the unredacted EPO because the objected-to paragraph was not relevant to any issue in the case and was unfairly prejudicial. See Tex. R. Evid. 402, 403. However, after the trial court admitted the unredacted EPO, Sergeant Matt Birch of the Paris Police Department testified, without objection, that, in instances of family violence that involves serious bodily injury or a deadly weapon being exhibited, the issuance of an emergency protective order was mandatory, that the issuance of this EPO was required by law, and that the EPO may be issued for thirty-one, sixty-one, or ninety-one days based on the circumstances.^[2]

[T]o preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.

Davis v. State, 614 S.W.3d 223, 228-29 (Tex. App.-Texarkana 2020, no pet.) (alterations in original) (quoting Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003))). "This rule applies whether the same evidence was admitted 'without objection . . . before or after the complained-of ruling.'" Id. (quoting Lane, 151 S.W.3d at 193 (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998))).

Because McDonald did not object to Birch's testimony or obtain a running objection, he procedurally defaulted this complaint. Because the issue is not presented for our review, ^[3] we overrule his sole issue.

For the reasons stated, we affirm the trial court's judgment. ---------

Notes:

[*]Jack Carter, Justice, Retired, Sitting by Assignment

^[1]See Tex. Code Crim. Proc. Ann art. 17.292 (Supp.); Tex. Penal Code Ann. § 25.07(a), § 25.072(a) (Supp.).

^[2]The EPO was issued pursuant to the following statute:

(b) At a defendant's appearance before a magistrate after arrest for an offense involving family violence, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:

(1) serious bodily injury to the victim; or

(2) the use or exhibition of a deadly weapon during the commission of an assault.

Tex. Code Crim. Proc. Ann. art 17.292(b).

^[3]We also note that McDonald objected to the entire paragraph and requested that it be redacted. This included the statement that the order was valid for ninety-one days, which was not unfairly prejudicial and was relevant to show that the EPO was in effect when McDonald committed the two violations of the EPO. As such, this statement was admissible.

In order to preserve a complaint for appellate review "a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context." Mims v. State, 607 S.W.3d 419, 428 (...