Buddy Ray Herrell v. the State of Texas

Opinion

In the

Court of Appeals Second Appellate District of Texas at Fort Worth

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No. 02-25-00432-CR

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BUDDY RAY HERRELL, Appellant V.

THE STATE OF TEXAS

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR24-1002

Before Sudderth, C.J.; Kerr and Birdwell, JJ.

Memorandum Opinion by Justice Kerr

MEMORANDUM OPINION

In 2023, Appellant Buddy Ray Herrell was captured on video selling methamphetamine to an undercover sheriff’s officer. Herrell was subsequently convicted of one count of delivery of a controlled substance in an amount of one gram or more but less than four grams. See Tex. Health & Safety Code § 481.112(c). In this appeal, Herrell’s three issues all pertain to what he characterizes as prejudicial “extraneous[-]offense evidence” admitted at his trial. Because we conclude that Herrell failed to preserve his appellate complaints for our review, we will affirm the trial court’s judgment.

I. Introduction

As mentioned above, the drug transaction giving rise to the charge against Herrell in this case was recorded on video. On the roughly fourteen-minute-long video recording, Herrell can be seen getting into a vehicle driven by Parker County Sheriff’s Officer Christopher Lockett. After handing Lockett a small plastic baggie of methamphetamine—at around the 4:38 mark—Herrell begins telling Lockett about various property items that he could offer him, including tools, a dirt bike, motorcycles, guns, jewelry, and knives. Herrell added that Lockett did not need to “worry about nothing being hot.”1 Lockett and Herrell then spend a few minutes discussing different means of removing serial numbers from stolen property. Herrell

1 Lockett testified at trial that “‘[h]ot’ means the property is going to be stolen.”

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volunteers that his “buddy” has a 3-D printer that he uses to make guns that can not be “traced back to anything” except the machine. But Herrell cautions Lockett that “the only thing is, you get caught with that [gun], you’re going to prison for life.” Before getting out of the vehicle, Herrell tells Lockett to “hit [him] up” about the property he had referenced.

Before trial, Herrell filed a motion in limine, in which he requested “that any content filmed after the 4:38 time stamp [of the video recording] be excluded from trial.” Herrell argued that “the relevant portions of the video recording cease” at 4:38 into the recording and objected based on Texas Rules of Evidence 401, 402, 403, and 404. See Tex. R. Evid. 401–04. The trial court held a hearing on Herrell’s motion in limine (along with other pretrial matters) and denied the motion but explained to Herrell that “if [the evidence] is objectionable to you, you certainly may object.”

During trial, when the State offered the video recording as an exhibit,2 Herrell stated, “No objection, Your Honor,” and the trial court admitted the exhibit with no limitations. The State then requested permission to publish the video, which the trial court allowed. The State stopped and resumed playing the video several times with Lockett on the witness stand, eliciting testimony from him in between segments. It was not until the video reached the 4:38 mark that Herrell objected and asked to approach the bench.

2 The exhibit was a USB drive with the video recording on it.

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At the bench, Herrell “renew[ed] the objections that [he had] made in [his]

Motion in Limine regarding the remainder of this video under Rules 401 and 402 for relevance.” After the State made its counterargument for the recording’s admissibility, Herrell asked “that we take a recess[ and] have [the trial court] review the last ten minutes of the video . . . before making a ruling on this issue.” Herrell added, “This is introducing confrontation[-]clause issues and due[-]process issues.” The trial court simply stated, “Overruled. Carry on,” at which point the State resumed playing the video.

About a minute later, Herrell objected again, this time “under Rules 401, 402, 403, [and] 404[ and] the confrontation . . . and due[-]process clauses[] in both the United States Constitution and the Texas Constitution.” The trial court overruled his objections and gave him “a running objection to this video in that regard.” The State then resumed playing the video, stopping at the 12:53 mark. 3 II. Analysis

In his first issue, Herrell argues that the trial court abused its discretion by admitting prejudicial extraneous-offense evidence without first reviewing it to evaluate its probative value and risk of undue prejudice. In his second issue, he argues that the erroneous admission of that evidence rendered his trial fundamentally unfair under the due-process clause of the United States Constitution and the due-course-of-law

Herrell objected twice more before the State finally stopped playing the video, 3

but his objections did not raise any grounds beyond those he had already articulated.

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clause of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19. And in his third issue, Herrell argues that the erroneous admission of the extraneous- offense evidence compels reversal of his conviction. But as a threshold matter, we must determine whether Herrell preserved these issues for appellate review.4 A. Law on Preservation of Error To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion sufficiently stating the specific grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). A party must object as soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); Montelongo, 623 S.W.3d at 823; London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex. App.—Fort Worth 2012, pet. ref’d); see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (“We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. This is true even though the error may concern a constitutional right of the defendant.”

4 Because it is a systemic requirement, we independently review error preservation, and we have a duty to ensure that a claim is properly preserved in the trial court before we address its merits. Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020).

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(citations omitted)). Further, the party must obtain an express or implicit adverse trial-court ruling or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon, 595 S.W.3d at 223.

But motions in limine do not preserve error. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (“A motion in limine . . . is a preliminary matter and normally preserves nothing for appellate review. For error to be preserved with regard to the subject of a motion in limine, an objection must be made at the time the subject is raised during trial.” (citation and emphasis omitted)); Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). This is true whether the motion is granted or denied. See Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007); Swilley v. State, 465 S.W.3d 789, 795 (Tex. App.—Fort Worth 2015, no pet.). The party must object when the evidence is offered at trial to preserve error. Fuller, 253 S.W.3d at 232; Roberts, 220 S.W.3d at 533. B. Herrell’s Non-Preserved Complaints Herrell contends that “the erroneous admission of the [extraneous-offense]

evidence was preserved for appellate review” because he (1) “raised the objection to [that] evidence at a pretrial hearing outside the presence of the jury, [(2) raised it] again at trial prior to the jury hearing the evidence, and [(3)] ultimately obtained a running objection to the evidence.” We will dispense with his first and third contentions and then explain why his trial objections, made after the State had begun playing the video

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to the jury, were insufficient to preserve his complaints about the extraneous-offense evidence discussed on the video.

First, although Herrell filed and received an adverse ruling on a pretrial motion in limine challenging the admissibility of a portion of the video, the trial court made clear in its pretrial ruling that it was only ruling on the motion in limine and invited Herrell to object at a later time “if [the evidence was] objectionable to” him. And a motion in limine preserves nothing for appellate review. Fuller, 253 S.W.3d at 232. Thus, this pretrial ruling preserved nothing for our review. See id.; Roberts, 220 S.W.3d at 533.

As to Herrell’s trial objections to the evidence, these were untimely because they were made after the objected-to evidence had been admitted. A defendant must timely object each time the State offers inadmissible evidence unless the defendant obtains a running objection. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991). But a running objection to evidence that has already been admitted is untimely. See Thierry v. State, 288 S.W.3d 80, 88 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (holding that when “appellant renew[ed] her Rule 402 and 403 objections and ask[ed] for a continuing objection” only “after such testimony was already before the jury, without objection, . . . [a]ppellant failed to preserve her complaints for appellate review”); Neal v. State, 186 S.W.3d 690, 692 (Tex. App.—Dallas 2006, no pet.) (declining to conclude that appellant’s “running objection” was timely “as it came after [the witness] had

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already testified about” the objected-to evidence); see also Cole v. State, 987 S.W.2d 893, 895 (Tex. App.—Fort Worth 1998, pet. ref’d) (“Although [appellant] later made running objections to several of the witnesses’ testimony and a proper [R]ule 404 and [R]ule 403 objection outside of the jury’s presence to . . . testimony about the same incidents, [his] earlier failure to timely object to . . . testimony concerning [those extraneous] incidents . . . waived any error.”).

Finally, although Herrell appears to have objected before the complained-of portion of the video was played, he initially stated that he had no objection when the video was offered and admitted into evidence. He also did not object when the State began playing the video. Whether stating “no objection” when an exhibit is offered abandons an earlier objection to the evidence is a “context-dependent” determination. Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim. App. 2013). Faced with a similar situation, our sister court in Amarillo concluded that an appellant who affirmatively stated that he had “[n]o objection” to a dash-cam video when it was offered but then objected while the video was being played did not preserve for appellate review his contention that the dash-cam video should have been excluded. Baptiste v. State, No. 07-19-00023-CR, 2020 WL 1932903, at *2–3 (Tex. App.— Amarillo Apr. 21, 2020, no pet.) (mem. op., not designated for publication). “Because th[e] objection was not raised until after the exhibit had already been introduced and no legitimate reason to justify the delay was identified by appellant,” the court

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reasoned, “his objection to the admission of the dash-cam video was waived.” Id. at *3.

Our sister court’s reasoning in Baptiste is persuasive, and we see no reason not to apply it here, as Herrell has not identified any legitimate reason justifying his delay in objecting to the extraneous-offense evidence on the video at trial. And, like the appellant in Baptiste, Herrell was aware of the video’s content, having reviewed it prior to trial. See id. at *2. We hold that Herrell has failed to preserve for our review his complaints about the extraneous-offense evidence in the video.5 Because Herrell’s first and second issues are not preserved for our review, we overrule them. And because his third issue pertains solely to whether he was harmed by the admission of the extraneous-offense evidence, we overrule it as moot.6

5 We recognize that another one of our sister courts has held that an objection to a video exhibit made after the exhibit was admitted without objection but before it was played to the jury was “timely enough” to preserve a complaint about the video’s admission. Johnson v. State, No. 14-24-00644-CR, 2026 WL 1876197, at *3–4 (Tex. App.—Houston [14th Dist.] June 30, 2026, no pet. h.) (mem. op., not designated for publication); see Johnson v. State, 747 S.W.2d 451, 453 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (holding that objection to video exhibit, made after video was admitted but before it was played to jury, was timely asserted even after “no objection” waiver). The critical distinction between those cases and this case is that Herrell waited until after the State had begun playing the video to the jury to renew his previously made rules-based objections and assert his due-process objection. Under these circumstances, Herrell’s trial objections were untimely. See Baptiste, 2020 WL 1932903, at *2–3.

6 Even if we were to hold that Herrell’s first and second issues were preserved and reach their merits, and even if we assumed error, we could not sustain his third issue because the record shows that any error in the admission of the extraneous-offense evidence on the video would have been harmless. “The

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III. Conclusion

Having overruled all of Herrell’s issues, we affirm the trial court’s judgment.

/s/ Elizabeth Kerr

Elizabeth Kerr

Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 27, 2026

evidentiary value from [the extraneous-offense evidence on the video] was slight as it related to an extraneous offense.” Allison v. State, 666 S.W.3d 750, 764 (Tex. Crim. App. 2023). In contrast, the evidence that Herrell was guilty of the charged offense was overwhelming. Herrell did not object to the portion of the video showing him selling methamphetamine to Lockett. He also did not object to text messages between him and Lockett arranging the drug deal. He did not even object to the methamphetamine itself when it was offered into evidence. Additionally, the trial court gave the jury an instruction limiting its consideration of any extraneous-offense evidence. We presume that the jury followed this instruction. Upchurch v. State, 656 S.W.3d 170, 183–84 (Tex. App.—Fort Worth 2022, no pet.). Thus, whether we analyzed the assumed error as constitutional error, see Tex. R. App. P. 44.2(a), or under the less stringent standard for non-constitutional error, see Tex. R. App. P. 44.2(b), we would conclude that any such error did not affect Herrell’s substantial rights and was harmless beyond a reasonable doubt. See Allison, 666 S.W.3d at 764– 65 (holding that any error in the admission of a detective’s opinion testimony “did not contribute to [the] appellant’s conviction or punishment and was harmless beyond a reasonable doubt” where the evidentiary value from the detective’s testimony was slight, the State had a strong case against the appellant without the detective’s testimony, and the trial court gave the jury a limiting instruction); Upchurch, 656 S.W.3d at 183–84 & n.7 (concluding, in a case where “overwhelming evidence of guilt” was admitted without objection, that “the ultimate outcome of Appellant’s trial—his conviction and sentence—would have been the same had the State not introduced the [extraneous-offense] evidence [admissible at the trial’s punishment phase but not the merits phase] until the trial on punishment” (quoting Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002))).