Opinion filed December 19 , 2013



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 11

- 00365

- CR

__________ SHARON LYNNE CORBIN , Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 104 th District Court Taylor County, Texas Trial Court Cause No. 17793B

M E M O R A N D U M O P I N I O N The jury found Sharon Lynne Corbin guilty of aggravated assault and
assessed her punishment at confinement for five years. In two points of error, Appellant asserts that the trial court improperly sustained objections to two hearsay

statements that she sought to introduce

. We affirm.

I. Trial Evidence
Appellant does not challenge the suffi ciency of the evidence, but some facts are provided for context. Appellant had moved to Texas from South Carolina and2 temporarily lived at Bill Guinn’s house with his daughter, Lilli e “Kat” Guinn

. Robert Tettleton, Kat ’ s fiancé
, also lived there. Appellant, Kat , and Tettleton
decided one late afternoon to go to Guitars and Cadillacs B ar in Abilene to drink
and dance. They saw Amber Laird at the bar
, and after they had spent some time
there together , they all returned to Guinn’s house

. Appellant, Laird
, Kat , and Tettleton continued to drink and socialize in the dining room

. Appellant claimed that
, later in the night
, Laird threatened “to blow [Appellant’s] f

----- g brains out

. ” Laird and Kat denied that Laird threatened Appellant. Kat testified t hat
, as the night wore on
, Appellant became angry because the group had discussed her personal issues

. Laird and Kat testified that
, still later wh ile they and Tettleton were in the
bedroom
, Appellant entered the bed room, pulled a knife from her purse that was on the couch in that room
, and held the knife to Laird’s throat. Laird testified that Appella n t used the knife to cut Laird’s upper chest near her neck and that Appellant used her fingernails to scratch the back of Laird’s neck
, her upper lip
, and her nose

. 1 Tettleton called the police ; 2 Office r Kevin Pruitt and Officer Joshua
Ward responded

. Officer s Pruitt and Ward arrived
, a n d Officer Ward took A ppellant ’s

statement and Kat ’s statement

. Officer Ward testified that Appellant smelled of alcohol, appeared to be intoxicated, and was very agitated

. H e reported that Appellant said
, “I only did what [ Laird ] deserved. ” He also reported that Kat gave him Appellant’s knife and a field statement. Officer Ward testified that he and
Officer P ruitt arrested Appellant.

1 The trial court admitted n urse Amy Cullers’s testimony about Laird ’s emergency room condition and Laird ’s emergency room medical records and photo s that documented her injuries.

2 The trial court also admitted the 911 audio recording of Tettleton’s call.3 At trial, Appellant denied that she threatened Laird or that she scratched her

or cut her with the knife, but she admitted that she owned the knife and that it was in her back pocket. Appellant claim ed that Laird and Tettleton had fabricated the assault to keep Appellant from telling Kat that Laird and Tettleton had sex that night in Kat’s bedroom while Kat was asleep in th at same bedroom. When cross

examined about how she had reached across Tettleton to attack Laird
, Appellant
said that she did not reach across Tettleton because he was on the other side of the
bed and that she never pulled out her knife

. Appellant attempted to testify about Laird’s intent to file a false police report against her because she threatened to disclose to Kat t h at Laird had sex with
Tettleton

. Appellant also tried to testify that Laird had “ clawed ” and “ hit ”
herself

— to make it look like Appellant injured her

— and that Laird had said she was going to have Appellant arrested. The trial court sustained the State’s hearsay objection s to the statement s

. But the trial court did admit Appellant ’s testimony
that Laird had “clawed” and “ hit ” herself.

II. Discussion and Analysis
Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.
T EX

. R. E VID

. 801(d). “ In order for hearsay to be admissible, it must fit into an exception provided by a statute or the Rules of Evidence. T EX

. R. E VID

. 802. ”
Zuliani v. State , 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) . “ Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character.” Taylor v. State , 268 S.W.3d 571, 578

– 79 (Tex. Crim. App. 2008) ( citing Martinez v. State , 178 S.W.3d4 806, 815 (Tex. Crim. App. 2005) , and Cofield v. State
, 891 S.W.2d 952, 954 (Tex.
Crim. App. 1994) )

. The trial court has the discretion to admit an out

- of

- court statement if it falls within an exception to the general hearsay exclusion rule. Lawton v. State , 913 S.W.2d 542, 553 (Tex. Crim. Ap p. 1995)
, overruled on other grounds by Mosley v.
State , 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). This c ourt does not conduct a de novo review, but uses an abuse of discretion standard to review the trial court’s evidentiary rulings

. See Coffin v. State , 885 S.W.2d 140, 149 (Tex. Crim. App.
1 994). “ An abuse of discretion occur s ‘ only when the trial judge ’ s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. ’ ” Zuliani , 97 S.W.3d at 595 (quoting Cantu v. State , 842 S.W.2d 667, 682 (Tex. Crim. App. 1992) )

. Appellant contends that she should have been allowed to testify that Laird
threatened to file a “ false ” assault charge against her because she intended to tell
Kat that Laird had sex with Tettleton

. Appellant testified, “ Laird made the
comment that

. . . Kat [] would not believe what was going on, that she was knocked out, and

. . . would stay that way . . . . Laird made the comment that [Kat ]
wouldn’t believe

. . . what had happened and continued to scratch

-- . ” The State objected on hearsay grounds ; defense counsel argued that the evidence went to Laird’ s state of mind. The court sustained the objection and instructed the jury to disregard. Appellant argues that the statement wa s not h earsay because the

statement related to the declarant’s state of mind. T EX

. R. E VID

. 803(3). Appellant
is correct that the statement wa s not hearsay, but for a different reason. In this case, a statement by Appellant about Laird ’s beliefs

— concerning Kat ’s potential rejection or acceptance of Appellant’s claim that Laird slept with Tettleton

— wa s not offered to prove the truth of what Laird or Kat actually believed, but wa s5 simply offered to show that Laird made a statement that may have evinced a
motive o r intent by her to lie.
T he trial court should have overruled the State’s objection to Appellant ’s

statement because the statement was not hearsay. But b ecause Appellant testified
about the difficulties she and Laird had that evening, because she testified about
the sexual liaison between Laird and Tettleton , a n d because she testified about
Laird ’s and Tettleton’s intention to continue their sexual relationship , the trial
court’s error was harmless if it did not affect Appellant’s substantial right s. T EX

. R. A PP

. P. 44.2(b); Mosley
, 983 S.W.2d at 259

. Appellant also contends that the trial court should have allowed her to testify
that Laird was going to injure herself in order to support the assault charge

. Appellant stated, “ Laird started clawing herself and hitting herself in the face, stating the fact that she was gonna call the law and have me arrested for

. . . cutting her with my knife. ” T he trial court sustained the State’s hearsay objection

. But a statement is not hearsay if it is offered to describe one person’s observations about
how another person acted, unless that person’s actions were intended to be a substitute for verbal expression. See T EX

. R. E VID

. 801(a).
The trial court later allowed the following f rom Appellant, “[Officer Ward] and I spoke and I told him about [ Laird ] and about her clawing herself and hitting
herself
, ” and other similar testimony. Because the “clawing and hitting” evidence

was admitted later , the trial court’s error was harmless if it did not affect Appellant’s substantial rights

. T EX

. R. A PP

. P. 44.2(b); Mosley
, 983 S.W.2d at 259

. Appellant further asserts that Laird’s statement that she was “gonna call the
law” evince d Laird’s state of mind concerning her future conduct and was admissible under T EX

. R. E VID

. 803(3)

. Rule 803(3) is an exception to the hearsay
rule that a llows the admission of a person’s out

- of

- court statement concerning her then existing state of mind, including “intent, plan, [or] motive” and, thus
,6 includin g a statement of intended future conduct. T EX

. R. E VID

. 803( 3 ); see Saldivar v. State , 980 S.W.2d 475, 495 (Tex. App.

— Houston [14th Dist.] 1998, pet. ref’d). Laird never called the police ; Officer Ward testified that Appellant said
Laird got what she deserved ; and Kat testified that Appellant attacked Laird. The trial court’s decision to sustain the hearsay objection to Laird’s statement that “she was gonna call the law” was outside the zone of reasonable disagreement. W e disregard the error if it d i d not affect A ppellant ’ s substantial rights. T EX

. R.
A PP

. P. 44.2(b); Mosley
, 983 S.W.2d at 259

. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury ’ s verdict. Ballard v. State , 110 S.W.3d 538, 544 (Tex. App.

— Eastland 2003, pet. dism’d , untimely filed)

. We review the whole
record to determine whether the error influenced the jury ’ s verdict. Ballard , 110
S.W.3d at 544 ( citing Mosley
, 983 S.W.2d at 259 )

. One factor we consider is the overwhelming evidence of guilt. Ballard , 110 S.W.3d at 544 ( citing T EX

. R.
A PP

. P. 44.2(b) and Motilla v. State
, 78 S.W.3d 352 (Tex. Cr im

. App. 2002) )

. The jury heard Officer Ward testify that Appellant was intoxicated and agi

tated and that she told him that Laird got what she deserved. Laird and Kat testified that Appellant attacked Laird

. Laird never called the police. Tettleton
called 911
, and the jury heard that call

. Amy Cullers , the emergency room nurse,
testified about Laird’s injuries. Appellant too k the stand and admitted that she had
several drinks a nd that she passed out on the way home from the bar. Appellant denied that she assaulted Laird, and she also denied that she
reached across Tettleton to cut Laird , but she admit ted that she had a knife on her
and that she had a prior conviction in South Carolina for assault on a correctional employee

. The trial court admitted the following evidence about Laird’s state of
mind : (1) Laird threatened “ to blow [ Appellant’s ] f

----- g brains out ”; (2) Laird and Tettleton had sex while Kat was asleep in the bedroom; and (3) Laird injured7 herself to support the aggravated assault charge. Appellant used all of this evi

dence to vigorously c hallenge the State’s case.
We have reviewed the r ecord as a whole
, and we cannot say that any error in the evidentiary rulings of the trial court substantially affected Appellant’s rights

. We overrule Appellant’s two points of error.
III. This Court’s Ruling
We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE

December 19 , 2013 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J. , and Bailey, J.