James Friend v. State, 06-15-00099-CR

Appellant James Friend pled guilty to murdering Larry Gray; he submitted punishment to the jury asserting sudden passion but received life imprisonment.
At the scene Friend threatened the children, announced intent to kill Gray (and initially their mother), entered the home with a pistol, shot Gray multiple times, and beat him with the pistol; Gray died.
Friend sought to introduce (a) an out-of-court statement allegedly made by Gray that he would "put his hands on" women, (b) testimony about Gray's drug-rehab history, and (c) objected after a child witness brought a "comfort doll" to the stand without a prior Article 38.074 hearing.
Trial court excluded Gray’s out-of-court declarant statement as hearsay but allowed Friend to testify to his belief that Gray hit women; it excluded evidence of Gray’s drug-rehabilitation attendance; it denied a mistrial after the child used a doll and offered no lesser remedies were sought.
On appeal Friend raised three errors: exclusion of Gray’s alleged statement, exclusion of Gray’s drug history, and refusal to grant a mistrial over the comfort doll; the appellate court affirmed.

Issue	Friend's Argument	State's Argument	Held
Admission of Gray’s out-of-court statement that he would "put his hands on" women	Statement shows effect on Friend’s state of mind and supports sudden passion defense; not offered for truth	Statement is hearsay from a now-deceased declarant and inadmissible for its truth	Trial court did not abuse discretion: excluded the statement for its truth but allowed Friend to testify about his belief that Gray hit women
Admission of Gray’s drug-rehab history via his brother Venable	Evidence bears on Friend’s mental state and sudden passion because Friend knew of Gray’s drug background	Proffer was not properly offered or shown to support Friend’s theory; trial court lacked basis to admit	Complaint not preserved for appeal: offer of proof was insufficiently specific and Friend failed to re-offer or develop relevance
Motion for mistrial because a child witness used a comfort doll without prior Article 38.074 hearing	Surprise and prejudice from unapproved use of a comfort item warranted mistrial	Doll use could be cured by lesser remedies; Article 38.074 hearing request not made; defendant waived complaint	Denial of mistrial affirmed: no abuse of discretion where less drastic cures were available and not requested

Allen v. State, 436 S.W.3d 815 (Tex. App.—Texarkana 2014) (trial court’s evidentiary rulings reviewed for abuse of discretion)
Cameron v. State, 241 S.W.3d 15 (Tex. Crim. App. 2007) (standards for admission of evidence)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (abuse-of-discretion "zone of reasonable disagreement" standard)
Oprean v. State, 201 S.W.3d 724 (Tex. Crim. App. 2006) (application of hearsay and trial-court discretion)
Holmes v. State, 323 S.W.3d 163 (Tex. Crim. App. 2009) (purpose and content of offer of proof for appellate review)
Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (mistrial is extreme remedy; lesser alternatives should be sought)