Donnie Edward Shipp v. The State of Texas--Appeal from 371st District Court of Tarrant County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-97-00383-CR

Case Date: 10/28/1998

Plaintiff: Donnie Edward Shipp

Defendant: The State of Texas--Appeal from 371st District Court of Tarrant County

Preview:Donnie Edward Shipp v. The State of Texas--Appeal from 371st District Court of Tarrant County
Donnie Edward Shipp v. State /**/ IN THE TENTH COURT OF APPEALS

No. 10-97-383-CR

DONNIE EDWARD SHIPP, Appellant v.

THE STATE OF TEXAS, Appellee

From the 371st District Court Tarrant County, Texas Trial Court # 0608445D

OPINION

Appellant Shipp appeals his conviction for murder, for which he was sentenced to 25 years in the Institutional Division of the Texas Department of Criminal Justice. Appellant and the deceased, Karen Bradburn, were common-law husband and wife about ten years. Karen was a nude dancer in Candy Land and Dreams Clubs. She was 39 and Appellant was 27 years old. They met when Appellant sold drugs to Karen when he was 17 and she was 29 years old. Appellant worked very little and secured his living from his father earlier on, and Karen kept him up the past few years. Appellant returned from several weeks in a drug rehab. Karen was staying in a trailer house of a friend, Eldon Niedermann. Karen and Appellant had lived in Eldon's trailer house on several occasions. On January 12, 1996, Eldon picked up Karen from work about 7:00 p.m. When they got to Eldon's trailer they watched

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televison. Karen went to bed about 11:15 p.m. in the front part of the trailer. Eldon went to bed about 11:30 p.m. in the rear part of the trailer. Appellant went to Eldon's trailer about 1:00 a.m. The door was not locked and he let himself in and went to bed with Karen. They got into an argument, and Appellant secured a knife and struggled with Karen. She was stabbed by Appellant, the knife penetrating her lung and many blood vessels. The commotion awakened Eldon who went to Karen's part of the trailer. She was standing and covered with blood. She said that Appellant had stabbed her and then she fell and died. Appellant admitted that he stabbed Karen but asserted he did not intend to kill or injure her; that he picked up the knife on an impulsive reflex and that it was an accident. Eldon called 9-1-1 and the police arrived and investigated. Appellant had left the scene but was arrested the next day. He was indicted for murder. At trial the jury found Appellant guilty and assessed his punishment at 25 years in prison. He appeals on three points of error: Point 1: "The trial court erred and abused its discretion in overruling Appellant's hearsay objection to the testimony of Cliff Lane." On the night of January 12, 1996, Appellant was struggling with Karen and when the struggle was over he fled Karen's house, leaving her lying in a pool of blood and stabbed to death. Shortly thereafter Appellant arrived at the home of Cliff Lane and asked to spend the night. Lane offered him a place to spend the night. Appellant had an injury to his wrist that looked to be a cut. He told Lane he had been in a fight with a Mexican at a bar. The State offered evidence from Lane that Appellant told him his wrist had been injured when he had a fight with a Mexican in a bar. Appellant's counsel objected that the evidence was hearsay. The trial court overruled the objection and admitted the evidence. The evidence was not hearsay. It was admitted for the purpose of showing what was said by Appellant and not for the truth of the matter asserted. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). Moreover, if error, it was harmless as it in no way affected substantial rights of either the State or Appellant. Tex. R. App. P. 44.2(b). Such rule states that "any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Point 1 is overruled. Point 2: "The trial court erred and abused its discretion in overruling Appellant's objection to State's Exhibits 45 and 60-64, because their probative value was substantially outweighed by their prejudicial impact upon the jury." The exhibits were photographs. Exhibit 45 shows Karen's body covered with blood, as the crime scene Officer Vernon observed when he arrived at the scene. Exhibit 60 shows the inside of Karen's bedroom strewn with bloody articles as linens and blankets. Exhibit 61 shows Karen's body with the stab wound. Exhibit 62 disclosed the location of the wound on Karen s upper right side of her back. Exhibit 63 displayed the detail of the wound. Exhibit 64 is another picture of the stab wound on Karen's back. Appellant contends the matters depicted by these exhibits were the subject of extensive narrative testimony which was not contradicted by Appellant, and that the pictures were introduced "as massive overkill to inflame the jury against Appellant. The admissibility of photographs is with the discretion of the trial judge. Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex. Crim. App. 1991); Tex. R. Crim. Evid. 403. Rule 403 favors admission of relevant evidence and presumes that relevant evidence will be more probative than prejudicial. Etheridge v. State, 9003 S.W.2d 1, 20 (Tex. Crim. App. 1994); Long v. State, 823 S.W.2d 259, 270-73 (Tex. Crim. App. 1991). The photographs in this case reflect the wound on the victim's body and the disarray of the room in which her struggle with Appellant occurred. The photographs depict only the reality of the crime committed, which was brutal. The trial court entered specific findings for these exhibits: "The probative value is not outweighed by the prejudicial effect." The trial court did not abuse its discretion in its finding above and in admitting the complained-of exhibits.

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Point 2 is overruled. Point 3: The trial court erred and abused its discretion in overruling Appellant s motion for a mistrial because of the State s injecting into the trial through its witness a statement which had previously been ruled subject to a motion in limine and which referred to an extraneous act of misconduct on the part of Appellant. Eldon woke up about 1:30 a.m. hearing Appellant s voice and the struggle Appellant was having with Karen. The State asked Eldon if he heard what Appellant was saying. Eldon replied, I do recall him saying I m going to kick Eldon s ass. Appellant did not object to the evidence at the time. An objection must be timely to preserve error. Polk v. State, 729 S.W.2d 749, 751-55 (Tex. Crim. App.. 1987). Appellant did later move for a mistrial. Appellant had received a ruling on his motion in limine forbiding evidence of threats against others, but violations of motions in limine do not preserve error on appeal. Garcia v. State, 573 S.W.2d 12 (Tex. Crim. App. 1978). Evidence was overwhelming that Appellant stabbed Karen. There is no substantial possibility that Eldon s statement that Appellant said he wanted to kick Eldon s ass could have substantially swayed the jury. The statement was trivial and if its admission was error, it was harmless. Tex. R. App. P. 44.2(b); Coggeshall v State, 961 S.W.2d 639, 643 (Tex. App. Fort Worth 1997). Point 3 is overruled. The judgment is affirmed. FRANK G. McDONALD Chief Justice (Retired)

Before Chief Justice Davis, Justice Vance and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed October 28, 1998 Do not publish

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