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Abrego v. State10/23/2003
MEMORANDUM OPINION
Appellant Richard Abrego was charged with the aggravated assault of his girlfriend, Lisa Latham. Appellant pled guilty to the offense, and the jury assessed his punishment at six years' confinement in the Texas Department of Corrections. In his sole issue on appeal appellant asserts that the trial court erred at the punishment phase in admitting testimony of one of the State's witnesses. We affirm.
Appellant and Latham lived together. One evening Latham went with a friend to a bar. Appellant called Latham while she was at the bar and asked her to meet him in the parking lot. In the parking lot they began arguing, and appellant pulled out a switch blade knife and held it to Latham's throat. Her friend came out, grabbed appellant's arm, and ordered appellant to leave. The police arrested appellant later that night.
At the punishment phase of the trial, the State called probation officer Vicky Kennedy to the stand. She was a community supervision officer liason for the court where appellant's prior probated sentence was pending. She testified that appellant had been on probation for driving while intoxicated since June 2001. The State asked her to identify which probation rules appellant had followed and which ones he had failed to follow. Kennedy said appellant completed a supportive outpatient program, a DWI course, and a victim impact panel. Kennedy said appellant had not reported to the probation office in August 2001 or in June, July, August, September, or October 2002. She also testified that appellant had made only three of his monthly payments, that he failed to provide sufficient verification of employment, and that this offense would constitute a violation of his probation also resulting in the pending motion to revoke probation. She noted that appellant had a misdemeanor offense pending in the same court as his DWI offense. However, when the State asked her, in light of appellant's non-reporting, whether she thought he would be a good candidate for probation, defense counsel objected stating, "Objection, that calls for conjecture." The court overruled the objection, noting that Kennedy had testified to being a probation officer for seventeen years. Kennedy then testified that she did not believe appellant would be a good candidate for probation.
Appellant claims that Kennedy's opinion was error necessitating a new trial on punishment. Citing rule 602, appellant contends Kennedy should have had personal knowledge of appellant and the underlying facts upon which she based her opinion. Tex. R. Evid. 602. Alternatively, if her opinion was admitted by the court because it deemed her to be an expert witness under rule 702 of the rules of evidence, he contends there was no evidence to satisfy the rule. Tex. R. Evid. 702. In response, the State contends the trial court's admission of Kennedy's testimony was proper under article 37.07, section 3(a)'s directives regarding the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2003). Article 37.07, section 3(a)(1) provides:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he
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