In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00061-CR __________________
ANDREW LUNA, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 17-04-04625-CR __________________________________________________________________
MEMORANDUM OPINION
A Montgomery County grand jury indicted Andrew Luna for the third-degree
felony offense of retaliation. See Tex. Penal Code Ann. § 36.06 (West 2016). The
State alleged two enhancements for prior felony convictions. See id. § 12.42(d)
(West 2019). A jury convicted Luna, and he elected to have the trial judge assess
punishment. Luna pleaded “true” to both enhancements, and after finding him a
habitual offender, the judge sentenced Luna to forty years of confinement in the
1 Institutional Division of the Texas Department of Criminal Justice. See id. Luna
timely appealed and presents one issue arguing it was reversible error to admit
evidence for purposes of impeachment after finding the defense opened the door.1
We affirm the trial court’s judgment.
Background
Responding to a disturbance call, Montgomery County Sheriff’s Deputy Cody
Lowery testified that when they arrived on the scene, he discovered Luna trying to
fight with various people. Deputy Lowery described Luna as agitated, shirtless, and
being physically restrained by his brother. The deputy also testified that Luna used
vulgarities and made threats towards him. When Deputy Lowery attempted to obtain
more information, Luna told him he was suicidal. Deputy Lowery explained that if
someone is suicidal, they use an emergency detention order and take them to a local
hospital, if the situation calls for it. The deputy handcuffed Luna and placed him in
the back of the patrol car to protect Luna and others while completing his evaluation
of the situation. As Deputy Lowery spoke with others at the scene, Luna began
1 Appellant framed the issue as “[w]hether the Prosecutor committed reversible error by claiming that the Appellant’s [t]rial [a]ttorney opened the door to impeachment of the Appellant’s mother as a witness on the issue of the Appellant’s character, specifically the peaceableness of the Appellant, and by presenting impeachment evidence consisting of the Appellant’s prior felony convictions and current gang affiliation.” 2 repeatedly kicking the back door from inside the patrol car, bending the door and the
cage to the vehicle. Lowery testified that because Luna damaged the police vehicle,
he decided to take him to jail for criminal mischief.
Deputy Lowery testified, and the video evidence established, that Luna told
the deputy, “[y]ou’ll be dead in twenty-four hours.” Luna made additional threats
against Deputy Lowery and his children, although the deputy indicated he did not
have children. The deputy said Luna referred to people he knew who could carry out
his threats. Deputy Lowery said he felt very threatened, and he told the jury he
believed Luna intended for him to feel threatened. The deputy confirmed that Luna
referred to him as “the law” multiple times, showing Luna’s awareness that Deputy
Lowery was a law enforcement officer. Deputy Lowery testified that Luna appeared
intoxicated, but law enforcement did not perform any drug or alcohol tests.
Luna’s mother, Sylvia Medillin, also testified at trial. She explained that
between 7 and 8 p.m. that evening, Luna came home with some of his friends, who
told her there was something wrong with Luna. Medillin testified that Luna began
having “a meltdown[,]” so she called his brother to help restrain him. Medillin called
911 for an ambulance, but the police came instead. Medillin testified she had never
seen Luna do what he did that night, but before this incident he had “some
breakdowns,” and she tried to get him some help.
3 During Medillin’s testimony, the following exchanges with defense counsel
took place:
Q. Okay. And let me ask you this: So do you believe basically speaking from what you saw and from what you observed[—]was Andrew acting basically normal, the way he normally acts, or was he going through something at that point? A. Oh, no, he was way out of character.
...
Q. Now, let me ask you this: Are you familiar with the fact that even on that day[,] Andrew actually threatened you? A. Yeah. Q. Do you remember what he said basically? A. “I’ll kill you,” something like that. Q. And did you take that as a threat? A. No. Q. Why not? A. Because I knew he wasn’t in his right state of mind, I would guess. I mean, that’s what I was thinking. I’m his mom. I know my son. Q. Okay. A. He wouldn’t hurt me. Never has.
Q. Okay. Okay. You’ve heard the video; is that correct? A. Yeah. Q. And you heard what he told the officer; is that correct? A. (Witness nods.) Q. Okay. Now, you don’t condone it, do you – A. No. Q. – if somebody threatens an officer? A. Oh, no. Q. Okay. So what did you think when you heard it? A. I was – I was afraid for him. Q. Okay. For who? 4 A. Well, for Andrew. Q. Why? A. Because I figured – I thought maybe they would make him mad or something if it was any kind of threat, but anybody that seen Andrew that day would just know. I mean – Q. Okay. A. – he was acting out of character. It wasn’t anybody in their right mind speaking.
Following these exchanges, the State argued that Medillin’s testimony that
Luna acted out of character that evening and that he would never hurt her “opened
the door” for the admission of other evidence as to Luna’s character. As a result, the
State sought to introduce evidence of Luna’s past criminal offenses and gang
membership. In a hearing outside the jury’s presence, the defense objected and
argued the door was not opened regarding “peaceableness” and that his mother
testified regarding Luna’s mental state at the time of the alleged offense, “not his
conduct or peacefulness[.]” The court did not make an express ruling to Luna’s
objection at the conclusion of the hearing. However, after the jury was seated and
the trial resumed, the defense did not object when the State began questioning
Medillin about Luna’s gang membership and prior felonies.
Analysis
In response to Luna’s issue, the State argues that he failed to preserve the
complaint for our review. We agree.
5 To preserve error for appellate review, Texas Rule of Appellate Procedure
33.1 provides that a party must complain to a trial court “by a timely request,
objection, or motion that . . . state[s] the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the
context[,]” and the trial court ruled on the objection expressly or implicitly. Tex. R.
App. P. 33.1(a). We recognize courts have long rejected “hyper-technical
requirements for error preservation.” See Vasquez v. State, 483 S.W.3d 550, 554
(Tex. Crim. App. 2016). However, to preserve error based on the improper
admission of evidence, a party must object “each time inadmissible evidence is
offered unless the complaining party obtains a running objection or obtains a ruling
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00061-CR __________________
ANDREW LUNA, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 17-04-04625-CR __________________________________________________________________
MEMORANDUM OPINION
A Montgomery County grand jury indicted Andrew Luna for the third-degree
felony offense of retaliation. See Tex. Penal Code Ann. § 36.06 (West 2016). The
State alleged two enhancements for prior felony convictions. See id. § 12.42(d)
(West 2019). A jury convicted Luna, and he elected to have the trial judge assess
punishment. Luna pleaded “true” to both enhancements, and after finding him a
habitual offender, the judge sentenced Luna to forty years of confinement in the
1 Institutional Division of the Texas Department of Criminal Justice. See id. Luna
timely appealed and presents one issue arguing it was reversible error to admit
evidence for purposes of impeachment after finding the defense opened the door.1
We affirm the trial court’s judgment.
Background
Responding to a disturbance call, Montgomery County Sheriff’s Deputy Cody
Lowery testified that when they arrived on the scene, he discovered Luna trying to
fight with various people. Deputy Lowery described Luna as agitated, shirtless, and
being physically restrained by his brother. The deputy also testified that Luna used
vulgarities and made threats towards him. When Deputy Lowery attempted to obtain
more information, Luna told him he was suicidal. Deputy Lowery explained that if
someone is suicidal, they use an emergency detention order and take them to a local
hospital, if the situation calls for it. The deputy handcuffed Luna and placed him in
the back of the patrol car to protect Luna and others while completing his evaluation
of the situation. As Deputy Lowery spoke with others at the scene, Luna began
1 Appellant framed the issue as “[w]hether the Prosecutor committed reversible error by claiming that the Appellant’s [t]rial [a]ttorney opened the door to impeachment of the Appellant’s mother as a witness on the issue of the Appellant’s character, specifically the peaceableness of the Appellant, and by presenting impeachment evidence consisting of the Appellant’s prior felony convictions and current gang affiliation.” 2 repeatedly kicking the back door from inside the patrol car, bending the door and the
cage to the vehicle. Lowery testified that because Luna damaged the police vehicle,
he decided to take him to jail for criminal mischief.
Deputy Lowery testified, and the video evidence established, that Luna told
the deputy, “[y]ou’ll be dead in twenty-four hours.” Luna made additional threats
against Deputy Lowery and his children, although the deputy indicated he did not
have children. The deputy said Luna referred to people he knew who could carry out
his threats. Deputy Lowery said he felt very threatened, and he told the jury he
believed Luna intended for him to feel threatened. The deputy confirmed that Luna
referred to him as “the law” multiple times, showing Luna’s awareness that Deputy
Lowery was a law enforcement officer. Deputy Lowery testified that Luna appeared
intoxicated, but law enforcement did not perform any drug or alcohol tests.
Luna’s mother, Sylvia Medillin, also testified at trial. She explained that
between 7 and 8 p.m. that evening, Luna came home with some of his friends, who
told her there was something wrong with Luna. Medillin testified that Luna began
having “a meltdown[,]” so she called his brother to help restrain him. Medillin called
911 for an ambulance, but the police came instead. Medillin testified she had never
seen Luna do what he did that night, but before this incident he had “some
breakdowns,” and she tried to get him some help.
3 During Medillin’s testimony, the following exchanges with defense counsel
took place:
Q. Okay. And let me ask you this: So do you believe basically speaking from what you saw and from what you observed[—]was Andrew acting basically normal, the way he normally acts, or was he going through something at that point? A. Oh, no, he was way out of character.
...
Q. Now, let me ask you this: Are you familiar with the fact that even on that day[,] Andrew actually threatened you? A. Yeah. Q. Do you remember what he said basically? A. “I’ll kill you,” something like that. Q. And did you take that as a threat? A. No. Q. Why not? A. Because I knew he wasn’t in his right state of mind, I would guess. I mean, that’s what I was thinking. I’m his mom. I know my son. Q. Okay. A. He wouldn’t hurt me. Never has.
Q. Okay. Okay. You’ve heard the video; is that correct? A. Yeah. Q. And you heard what he told the officer; is that correct? A. (Witness nods.) Q. Okay. Now, you don’t condone it, do you – A. No. Q. – if somebody threatens an officer? A. Oh, no. Q. Okay. So what did you think when you heard it? A. I was – I was afraid for him. Q. Okay. For who? 4 A. Well, for Andrew. Q. Why? A. Because I figured – I thought maybe they would make him mad or something if it was any kind of threat, but anybody that seen Andrew that day would just know. I mean – Q. Okay. A. – he was acting out of character. It wasn’t anybody in their right mind speaking.
Following these exchanges, the State argued that Medillin’s testimony that
Luna acted out of character that evening and that he would never hurt her “opened
the door” for the admission of other evidence as to Luna’s character. As a result, the
State sought to introduce evidence of Luna’s past criminal offenses and gang
membership. In a hearing outside the jury’s presence, the defense objected and
argued the door was not opened regarding “peaceableness” and that his mother
testified regarding Luna’s mental state at the time of the alleged offense, “not his
conduct or peacefulness[.]” The court did not make an express ruling to Luna’s
objection at the conclusion of the hearing. However, after the jury was seated and
the trial resumed, the defense did not object when the State began questioning
Medillin about Luna’s gang membership and prior felonies.
Analysis
In response to Luna’s issue, the State argues that he failed to preserve the
complaint for our review. We agree.
5 To preserve error for appellate review, Texas Rule of Appellate Procedure
33.1 provides that a party must complain to a trial court “by a timely request,
objection, or motion that . . . state[s] the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the
context[,]” and the trial court ruled on the objection expressly or implicitly. Tex. R.
App. P. 33.1(a). We recognize courts have long rejected “hyper-technical
requirements for error preservation.” See Vasquez v. State, 483 S.W.3d 550, 554
(Tex. Crim. App. 2016). However, to preserve error based on the improper
admission of evidence, a party must object “each time inadmissible evidence is
offered unless the complaining party obtains a running objection or obtains a ruling
on his complaint in a hearing outside the presence of the jury.” Lopez v. State, 253
S.W.3d 680, 684 (Tex. Crim. App. 2008) (citations omitted); see also Ethington v.
State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991) (citations omitted).
Because Luna failed to object to the testimony when it was offered, obtain a
running objection, or get a ruling on his objection outside the jury’s presence, he
failed to properly preserve error regarding the admission of the complained of
testimony. See Lopez, 253 S.W.3d at 684; Ethington, 819 S.W.2d 858–59; see also
6 Tex. R. Civ. P. 33.1. Accordingly, we do not reach the merits of Luna’s issue. Having
determined Luna failed to preserve error, we affirm the trial court’s judgment.
AFFIRMED.
_________________________ CHARLES KREGER Justice
Submitted on June 3, 2019 Opinion Delivered August 21, 2019 Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.