TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
444444444444444 NO. 03-99-00522-CR 444444444444444
Carlos Adalberto Soto, Appellant
v.
The State of Texas, Appellee
44444444444444444444444444444444444444444444444444444444444444444 FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0984849, HONORABLE JON N. WISSER, JUDGE PRESIDING 44444444444444444444444444444444444444444444444444444444444444444
Appellant Carlos Adalberto Soto was convicted by a jury of the offense of
attempted capital murder of Heather Hesskew and Yvette Twidwell. See Tex. Penal Code Ann.
§§ 15.01, 19.03(a)(7) (West 1994). The jury also made an affirmative finding that appellant
used a deadly weapon during the commission of the offense as alleged in the indictment. The
trial court assessed punishment at thirty years’ imprisonment.
Points of Error
Appellant advances twelve points of error, mostly complaining of evidentiary
rulings by the trial court. In the first two points of error, appellant complains of the admission
into evidence of pillowcases and a photograph of guns, contending that this evidence was the
product of an illegal search and seizure. In the third point, appellant urges that the trial court
erred in excluding evidence of the bias and interest of one of the complainants. In point of error four, appellant argues that the trial court erred in excluding proper evidence under Rule 404(b)
of the Texas Rules of Evidence concerning witness Eric Chaney. See Tex. R. Evid. 404(b). In
points of error five through nine, appellant contends that extraneous acts were admitted into
evidence contrary to the procedures required by Rule 404(b). In points ten and eleven, appellant
complains that the trial court failed to conduct a proper balancing test and that evidence was
admitted in violation of Rule 403. Tex. R. Evid. 403. In the last point of error, appellant
contends that the trial court erred in overruling a mistrial motion based on improper jury
argument by the prosecutor. We will affirm.
Background
There is no challenge to the sufficiency of evidence. A brief recitation of the
voluminous facts will place the points of error in proper perspective. It is clear from the record
that appellant shot sixteen-year-old Yvette Twidwell and twenty-three-year-old Heather
Hesskew with a rifle in an apartment in Austin on the night of August 25, 1998. Both
underwent extensive surgery to save their lives.
Kika Watson, driving home from work on the afternoon of August 25, 1998,
picked up appellant and his co-defendant, Arturo Malagon, who were walking. They were all
friends. Appellant and Malagon had been drinking beer. Later, the threesome drove to Eric
Chaney’s apartment in the Pierre Marquis Apartment complex. Watson was a friend of
Chaney’s. Appellant and Malagon did not know Chaney. Watson’s purpose was to get
Chaney’s older girlfriend (Hesskew) to buy some beer for them as the threesome were all under
age. Hesskew told them that Chaney, who was at work, had her identification card. She invited
2 the threesome to return about 6:30 p.m. to celebrate Chaney’s birthday. After getting someone
else to buy beer for them, Watson, appellant, and Malagon returned to the Chaney apartment.
Upon their return, they found Chaney and Hesskew arguing and fighting.1 When
the argument ended, the men went out on the balcony of the upstairs apartment 213. Heather
Hesskew then locked the door and later yelled that she was going to kill herself. The men forced
the door open and found Hesskew with a knife, that she had used to cut herself on the stomach.
Soon Cheney and Hesskew “made up,” and the birthday party continued. Later, Rob DeLuna
and his girlfriend, Susan, arrived and they were joined by Wesley Welch, his girlfriend, Yvette
Twidwell, and Wesley’s brother, Steve Welch. The Welches and Twidwell lived in an
apartment downstairs. Twidwell did not remain at the party long. She returned to her
apartment.
Watson, appellant, and Malagon each had six beers or more to drink when
DeLuna’s girlfriend, Susan, passed by appellant in the small apartment. Appellant told her to
get him a beer and she told him to get it himself. As she walked past, appellant “flipped her off”
with an obscene gesture. DeLuna confronted appellant and an argument ensued. Chaney
intervened. Shortly thereafter, DeLuna and Susan left the apartment. Chaney, who knew
Watson but not appellant or Malagon, confronted appellant about his conduct with Chaney’s
guests. An argument erupted, but Watson intervened. Later, appellant became sick and went
outside where he threw up. When Malagon left to go outside, Chaney asked if Malagon was
going to “check on his girl [appellant]?” Neither appellant nor Malagon returned to the party.
1 The argument was apparently over the fact that Hesskew had not washed Chaney’s clothes that day and he was without clean clothes for his birthday party.
3 When Watson decided to leave the party, no one wanted him to drive as he was
drunk. Watson insisted and went to the parking lot and drove away. He was followed by the
Welch brothers and Chaney in Wesley Welch’s car. Hesskew and Twidwell, who had appeared
on the parking lot, could not get in the small car so they went to apartment 213 where the party
had been in progress.
Chaney testified that he and the Welch brothers found Watson’s automobile
parked in his driveway at his home and assumed that he was safe. They briefly stopped at a
McDonald’s restaurant before returning to the apartment complex. In the parking lot they
encountered two brothers, one of whom had been a security guard at the apartment complex.
While they were talking, Chaney heard shots.
Heather Hesskew heard a knock at her apartment door. When she opened it, she
was shot in the chest. A second shot hit Twidwell in the shoulder. Hesskew identified appellant
as the man who shot her. She told Chaney, “They came back.” Twidwell was heard to say: “I
know who shot me.” Both women were taken to the hospital and underwent surgery. Officers
found 7.62 x 39 caliber shells at the scene.
Co-defendant Malagon testified for the State. He related that when he and
appellant left the party, they went to appellant’s nearby home. Malagon stated that appellant
came out of his home with a rifle and an “off-white or beige cloth or soft-sided gun bag.” They
returned to the Chaney-Hesskew apartment. Malagon knocked on the door. When the door
opened, appellant fired two shots. Malagon reported that he and appellant then ran, but in
different directions. Malagon talked to appellant the next day via the telephone.
The Pillowcases
4 In his first point of error, appellant complains that the trial court erred in admitting
evidence that was seized during the execution of a search warrant “when the information in the
search warrant affidavit was stale in violation of the Fourth Amendment to the United States
Constitution and Article I, section 9 of the Texas Constitution.”
The complained-of evidence appears to be two pillowcases (State’s exhibits nos.
68 and 69). As the State notes, appellant does not point out where he objected to the admission
of the pillowcases on the grounds now urged on appeal or where he obtained an adverse ruling
so as to preserve error. See Tex. R. App. P. 33.1(a). Appellant does give a record citation to the
location of his objection, but a review of the record there reveals that the pillowcases were
admitted without objection or “no further objections.”
The pillowcases were introduced during the cross-examination of appellant’s
mother. This occurred late in the guilt/innocence stage of the trial after earlier legal discussions
of search and seizure issues. At the time in question, no evidence from the search had been
introduced into the record. Guadalupe Soto testified that her two sons, appellant and Gilbert
Soto, Jr., lived with her at her house. She was still married but was not living with her husband.
She testified that appellant came home shortly after 10:00 p.m. on the night in question.
Appellant was drunk and threw up in the bathroom. Appellant’s mother related that she locked
the door and appellant did not leave again that night. On cross-examination, the following
occurred:
Q: (By Ms. Casner) Ms. Soto, I’m going to show you what’s been marked as State’s Exhibit 68 and State’s Exhibit 69. Do you recognize these?
5 A: Yes, Ma’am.
Q: Okay. Do you know where they came from?
A: I had them on top of two rifles.
Q: Okay. Inside your house?
A: Yes, Ma’am.
Q: Do you remember if it was in your bedroom or in a closet somewhere where they were located?
A: In the living room closet.
Q: Okay, in a closet? And these were draped over two rifles?
A: Yes. Ma’am.
Q: Okay. And just so the jury knows, these were taken by the police officers at [sic] a search warrant that was executed on your house?
Q: Okay.
MS. CASNER: I’ll offer State’s Exhibits 68 and 69 into evidence.
MR. KIRK [Defense Counsel]: No further objections, Your Honor.
THE COURT: Okay. I think the Court has ruled on the objections.
6 State’s exhibits nos. 68 and 69 were then admitted into evidence.2 On redirect
examination, Guadalupe Soto stated that the rifles, which she voluntarily mentioned, belonged
to her husband.3
Normally, a specific objection is required to be made each time an offer of
inadmissible evidence is made in order to preserve any error for review. Purtell v. State, 761
S.W.2d 360, 368 (Tex. Crim. App. 1988). Appellant does not point out how error was
preserved. However, when a trial court overrules a pretrial motion to suppress evidence, error
is preserved as to the subject matter of the motion presented to the trial court, without the
necessity of a further trial objection. Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App.
1987); Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985); Kreyssig v. State, 935
S.W.2d 886, 888 (Tex. App.—Texarkana 1996, pet. ref’d); Wade v. State, 814 S.W.2d 763, 765
(Tex. App.—Waco 1991, no pet.). 4
Appellant filed a motion to suppress evidence seized in the execution of a search
warrant. At the suppression hearings, appellant claimed that the affidavit underlying the search
warrant lacked probable cause in that the information contained therein was stale. See Sherlock
v. State, 632 S.W.2d 604, 608 (Tex. Crim. App. 1982). At one of the suppression hearings, the
affidavit, the search warrant, and the return thereon were introduced. The return on the search
2 The court reporter’s records reflect that these exhibits were pillowcases, not photographs of pillowcases. The color of these pillowcases is not reflected in the record. 3 The caliber of these rifles was never established, but the record makes clear that none of the firearms found in the house during the search were connected with the shootings or were of the same caliber as the weapon or rifle used to inflict the wounds on the complainants. 4 This proposition of law is an exception to the rule discussed in Purtell v. State, 761 S.W.2d 360, 368 (Tex. Crim. App. 1988).
7 warrant reflects the police officers seized “two off-white/cream colored, embroidered
pillowcases; one photo of suspect’s bedroom displaying a long barreled gun.” At the third
suppression hearing, the trial court eventually overruled the motion to suppress. It would thus
appear that appellant preserved error as to the admission of the pillowcases and a photograph.
Having preserved error by the overruling of the suppression motion, it is
incumbent on appellant to demonstrate that the trial court erred in its adverse ruling. Guzman
v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), has set the standard of review on pretrial
suppression rulings. We afford great deference to the trial court’s determination of the historical
facts under an abuse of discretion standard, but we decide de novo whether the trial court erred
in applying the law to those facts. Id. at 87-88; Hypolite v. State, 985 S.W.2d 181, 185 (Tex.
App.—San Antonio 1998, no pet.). Because we do not determine credibility, our de novo review
of probable cause becomes a de novo review of a legal question. Guzman, 955 S.W.2d at 87-89;
State v. Derrow, 981 S.W.2d 776, 778 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (citing
Ornelas v. United States, 517 U.S. 690, 697-99 (1996)).
The facts in the instant case regarding the search are clear-cut and undisputed.
The question presented is whether the information in the search-warrant affidavit was stale,
thereby preventing the affidavit and its four corners 5 from establishing probable cause. The
affidavit by Austin Detective Gena Curtis reflected an ongoing investigation of the instant
offense, which occurred on August 25, 1998; that the victims of the shootings had identified
appellant as the shooter and Malagon as the one who forced the door open prior to the shootings;
5 See Jones v. State, 833 S.W.2d 118, 123-24 (Tex. Crim. App. 1992); Carroll v. State, 911 S.W.2d 210, 218 (Tex. App.—Austin 1995, no pet.).
8 and that Malagon had given a confession to his involvement in the offense implicating appellant.
The affidavit then recited Malagon’s version of the offense. The affiant expressed the belief that
an assault-type rifle used to commit the offense had been retrieved by appellant from 8203
Parkdale Cove in Austin. The affidavit sought the issuance of a search warrant to search for a
7.62 x 39 caliber rifle and ammunition and an “off-white or beige colored cloth or soft-sided gun
bag.” The affidavit was dated October 23, 1998. The warrant was issued on the same day.
Appellant acknowledges that Malagon’s confession was given on October 22,
1998, but notes that this fact was not included in the affidavit, rendering stale the information
contained therein. Appellant argues that the warrant was issued almost two months after the
offense, and that the objects sought, if connected with the crime, would no longer be on the
premises in question.
Probable cause to support the issuance of a search warrant exists where the facts
given to the magistrate are sufficient to justify a conclusion that the object of the search is
probably on the premises to be searched at the time the warrant is issued. Bower v. State, 769
S.W.2d 887, 902 (Tex. Crim. App. 1989). The facts set out in the affidavit must not have
become stale when the magistrate issues the warrant. Hafford v. State, 989 S.W.2d 439, 440
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). The facts attested to must be so closely
related to the time of the issuance of the warrant as to justify a finding of probable cause.
Heredia v. State, 468 S.W.2d 833, 835 (Tex. Crim. App. 1971); Wachter v. State, 961 S.W.2d
598, 600 (Tex. App.—San Antonio 1997, pet. ref’d). It is enough, however, that a person of
“reasonable caution” would believe that the objects sought were located at the place to be
9 searched. Wachter, 961 S.W.2d at 600. There is no established time limit on how old the
information may be. Moore v. State, 456 S.W.2d 114, 115 (Tex. Crim. App. 1970).
Probable cause has an important time element. Probable cause ceases to exist when it is no longer reasonable to presume that items once located in a specified place are still there. Conversely, it may be reasonable under all the circumstances to presume that they are still where they once were, even after a considerable lapse of time. Among the factors that may be considered when evaluating the reasonableness of a magistrate’s inference that the suspect property is likely to be found where it was last seen are the length of time elapsed, the nature of the property, the nature of the criminal activity, and the likelihood that the contraband might be moved. Gonzales v. State, 761 S.W.2d 809, 813 (Tex. App.—Austin 1989, pet. ref’d).
State v. Bradley, 966 S.W.2d 871, 875 (Tex. App.—Austin 1998, no pet.).
We must use the “totality of the circumstances” to determine if the affidavit
reflects probable cause. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); Bower, 769 S.W.2d at
902. In making the determination, the affidavit must be interpreted in a common sense, realistic
manner. A hyper-technical analysis should be avoided. Gibbs v. State, 819 S.W.2d 821, 830
(Tex. Crim. App. 1991).
The instant affidavit is no model. We conclude, however, from the totality of the
circumstances and our de novo review that the search-warrant affidavit adequately reflects
probable cause. The trial court did not err in overruling the motion to suppress. We reject
appellant’s claim of a Fourth Amendment violation. 6
6 Appellant has not preserved error under the Texas Constitution. A reviewing court will not decide the issue of whether an appellant’s rights were violated under the state constitution where appellant in his brief has failed to distinguish his rights under the state constitution from those of the federal constitution. Dewberry v. State, 4 S.W.3d 735, 748 (Tex. Crim. App. 1999). Appellant has not offered specific arguments and authorities supporting his state constitutional
10 If our conclusion is wrong, the admission of the two pillowcases into evidence
is, nevertheless, harmless error beyond a reasonable doubt. See Tex. R. App. P. 44.2(a). The
two pillowcases in question were admitted without further objections during the cross-
examination of appellant’s mother. While she stated the two pillowcases were seized, none of
the officers who executed the search warrant ever identified the pillowcases as being the ones
at issue in the particular seizure in question. The pillowcases have significance only because
of Malagon’s testimony. He never identified the two pillowcases as resembling or being like
the singular “off-white or beige cloth or soft-sided gun bag.” Appellant’s mother volunteered
that she had the pillowcases “on top of two rifles.” She explained that the rifles belonged to her
husband. These rifles were not introduced into evidence, and there is no showing that they were
connected in any way with the offense charged.
The evidence against appellant was overwhelming. Both victims at one time or
another7 identified appellant as the man who shot them. Co-defendant Malagon testified that
appellant shot both women with a rifle while he was present. All the evidence showing
appellant’s guilt renders the admission of the two pillowcases insignificant. We find beyond a
reasonable doubt that the error, if any, did not contribute to the conviction or punishment. Tex.
R. App. P. 44.2(a).
In part B of the first point of error, appellant switches gears. In a multifarious
vein he claims that, for the same reasons he urged earlier, the trial court erred in admitting
claim. See Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999). 7 Twidwell did not make an in-court identification of appellant. She had, however, selected appellant from a photographic array, and said right after the shooting that she knew who shot her. Hesskew identified appellant at all times as the shooter.
11 State’s exhibit no. 53 (a photograph of the two pillowcases) into evidence. Our examination
reveals that State’s exhibit no. 53, while authorized to be introduced, was never offered by the
State before the jury. Appellant’s first point of error is overruled.
A Photograph of Guns
In the second point of error, appellant asserts that the “trial court erred in
admitting, over objection, evidence that was the fruit of an illegal seizure in violation of the
Fourth Amendment to the United States Constitution, Article I, Section 9 of the Texas
Constitution, and Article 38.23 of the Texas Code of Criminal Procedure.”
In his brief, appellant tells us the evidence in question is State’s exhibit no. 54.
This exhibit is a photograph of a display of numerous guns found in the house where appellant
lived. The guns were not seized, but a photograph of the guns was made at the time of the
search. Appellant submits that the taking of the photograph of the guns was tantamount to a
seizure.
Appellant readily acknowledges that his objection to State’s exhibit no. 54 was
sustained and the exhibit was not before the jury. Appellant, however, calls our attention to his
mother’s later volunteered testimony about two rifles, admitted without objection. Any earlier
sustained objection to the photograph of numerous firearms and a knife (State’s exhibit no. 54)
did not, without further objection, preserve error as to the mother’s limited testimony on cross-
examination. The second point of error is overruled.
Lack of Confrontation
12 In the third point of error, appellant urges that the “trial court erred in refusing to
allow appellant to question the complainant [Hesskew] concerning her bias or interest in this
proceeding in violation of the Sixth Amendment to the United States Constitution.”
Thus, appellant presents a federal constitutional question of lack of confrontation.
Appellant fails to tell us where he made an objection on the basis he now urges on appeal. See
Tex. R. App. P. 38.1(h). To preserve error for appellate review, the complaining party must
make a timely specific objection and obtain an adverse ruling on the objection. See Tex. R. App.
P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Moreover, the
complaint on appeal must comport with the trial objection. Broxton, 909 S.W.2d at 918. An
objection stating one theory may not be used to support a different legal theory on appeal.
Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990).
Most constitutional claims are subject to waiver unless timely presented to the
trial court. Thornton v. State, 994 S.W.2d 845, 854 n.5 (Tex. App.—Fort Worth 1999, pet.
ref’d); Hawkins v. State, 964 S.W.2d 767, 769 (Tex. App.—Beaumont 1998, pet. ref’d)
(including confrontation clause error). An accused must lodge a proper and timely objection at
trial on the lack of confrontation, due process, or due course of law in order to preserve error.
Phelps v. State, 999 S.W.2d 512, 518 (Tex. App.—Eastland 1999, no pet.) (citing Holland v.
State, 802 S.W.2d 696, 699-700 (Tex. Crim. App. 1991); Briggs v. State, 789 S.W.2d 918, 924
(Tex. Crim. App. 1990)). Thus, appellant’s failure to present any alleged confrontation clause
error to the trial court results in a procedural default of that claim. Jenkins v. State, 912 S.W.2d
793, 815 (Tex. Crim. App. 1995).
13 Prior to Hesskew’s cross-examination, appellant’s counsel indicated that he
wanted to inquire about her “one time lying on [Eric Chaney’s] behalf and being arrested for it
and trying to hide Eric.” The trial court suggested that appellant’s counsel was attempting to
impeach with a specific incident of conduct, which was not permissible. See Tex. R. Evid.
608(b). 8 The trial court held that the testimony could not be used for impeachment purposes
under Rule 608(b).9 Appellant did not advance any other theory of impeachment supporting the
admission of the testimony.
Nevertheless, appellant, in addition to the now rejected constitutional claim,
advances for the first time the claim that the testimony was admissible under a different theory
of impeachment. See Tex. R. Evid. 613(b). Rules 608(b) and 613(b) serve distinct and different
purposes in the impeachment of witnesses.10 Any trial objection based on Rule 608(b) does not
preserve error for review under Rule 613(b). Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App.
8 Rule 608(b) provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be inquired into on cross-examination of the witness, or proved by extrinsic evidence.
Tex. R. Evid. 608(b).
9 The testimony related to a specific act of the witness’s conduct—hindering apprehension of Eric Chaney by being untruthful concerning his whereabouts. The misdemeanor offense resulted in a deferred adjudication disposition that was later discharged prior to the instant trial. There was no conviction to be used for impeachment. See Tex. R. Evid. 609. 10 See generally 1 Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 613.6, at 651 (Texas Practice 1993).
14 1998) (op. on reh’g). Appellant has not preserved any error for review under Rule 613(b). The
third point of error is overruled for all the reasons stated.
Rule 404(b)
In the fourth point of error, appellant claims that the “trial court erred in refusing
to admit proper evidence pursuant to Tex. R. Evid. 404(b) concerning Eric Chaney.” We are
told that “[a]ppellant was not permitted to introduce evidence that Eric was on parole for an
assaultive offense.”
Prior to Chaney’s testimony, the prosecutor raised the question of whether
appellant could inquire into the nature of an offense made the basis of a finding of delinquent
conduct that resulted in Chaney’s commitment to the Texas Youth Council. The prosecutor
objected that the evidence would be irrelevant, but if relevant, inadmissible under Rule 403. See
Tex. R. Evid. 403. Appellant responded that the evidence was admissible under Rule 404(b).
Tex. R. Evid. 404(b). Acknowledging that Chaney was not a victim nor a defendant, appellant
urged that the evidence was admissible to show Chaney’s “intent” and the fact that Chaney was
convicted of an assaultive offense would support “the defense [contention] that he might have
been involved.” The trial court sustained the State’s objection, but held that appellant could use
other evidence about the juvenile commitment.
The jury heard evidence that Chaney was committed to the Texas Youth Council,
was released on parole to a half-way house, absconded, and was an escapee at the time of the
shooting. It was also shown that he was later arrested and returned to the Texas Youth Council.
At the time of the trial, Chaney was again on parole and living with his parents in Wyoming.
15 To support the admission of the nature of the juvenile offense, appellant relies
upon Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 1998). This reliance is misplaced. Tate
is distinguishable on the facts and the law. Moreover, Rule 609(d) provides:
Evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by the Constitution of the United States or Texas.
Tex. R. Evid. 609(d). Appellant does not rely upon a constitutional basis for his claim.
A trial court has broad discretion in admitting or excluding evidence. Only when
a trial court has abused its discretion should a reviewing court conclude that the ruling was
erroneous. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1990) (op. on
reh’g). Before evidence is admissible, it must be relevant as defined by Rule 401. Tex. R.
Evid. 401. Whether evidence of “other crimes, wrongs or acts” has relevance apart from
character conformity, as required by Rule 404(b), is also a question for the trial court. Moreno
v. State, 944 S.W.2d 685, 691-92 (Tex. App.—Houston [14th Dist.] 1997, aff’d, 22 S.W.3d 452
(Tex. Crim. App. 1999). The trial court did not abuse its discretion in excluding the evidence
in question. See also Tex. R. Evid. 103(a).
If it could be argued there was error in the exclusion of the evidence of the
underlying basis of Chaney’s juvenile delinquency, it was non-constitutional error. See Tex.
R. App. P. 44.2. Appellant’s substantial rights were not affected given all the circumstances.
The only evidence excluded was the fact that Chaney was charged in juvenile court with an
assaultive offense. The fourth point of error is overruled.
16 Claim Not Preserved
In point of error five, appellant urges that the trial court erred in admitting
“evidence of extraneous bad acts of appellant when the State did not identify the purpose for
which it was offered as required by Tex. R. Evid. 404(b).” In the sixth point of error, appellant
claims that the “trial court erred in failing to require the State to identify the purpose for which
it was offering the extraneous evidence.” Although different record references are cited,
appellant states that this latter contention is the same as the fifth point, although differently
stated.
Rule 404(b)11 does not expressly set forth the procedure described by appellant.
He relies upon Montgomery, which states in pertinent part:
When a party attempts to adduce evidence of “other crimes, wrongs or acts,” in order to preserve error on appeal, the opponent of that evidence must object in a timely fashion. . . . Once that complaint is lodged, it is incumbent upon the proponent of the evidence to satisfy the trial court that the “other crime, wrong, or act” has relevance apart from its tendency “to prove character of a person in order to show that he acted in conformity therewith.” Rule 404(b), supra. The trial court should honor any request by the opponent of the evidence for articulation
11 Rule 404(b) provides:
Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.
Tex. R. Evid. 404(b).
17 into the record of the purpose for which evidence is either offered by the proponent or ultimately admitted by the trial court.
Id., 810 S.W.2d at 387 (emphasis added); see also Massey v. State, 933 S.W.2d 582, 586 (Tex.
App.—Houston [1st Dist.] 1996, no pet.).
Appellant, under point of error five, has failed to direct our attention to the record
where his request was made and where the trial court failed to require the State to identify the
purpose for which the evidence was being offered. The single citation to the record to support
his contention under the fifth point does not reflect a Rule 404(b) objection or a request. We are
only generally referred to “various bench conferences and hearings outside the jury’s presence
when Appellant’s 404(b) objection was discussed.” This does not comply with our briefing
rules. See Tex. R. App. P. 38.1(h). The right to appellate review extends only to complaints
made in accordance with our rules of appellate procedure. Burks v. State, 876 S.W.2d 877, 901
(Tex. Crim. App. 1994). Nothing is presented for review if appellant does not direct the
appellate court to the specific portion of the record where the objection or request was made and
an adverse ruling obtained. Lape v. State, 893 S.W.2d 949, 953 (Tex. App.—Houston [14th
Dist.] 1994, pet. ref’d) (citing Cook v. State, 611 S.W.2d 83, 87 (Tex. Crim. App. 1981)).
Under the sixth point of error, appellant does make reference to a record page
where a request was made. In the middle of a running colloquy, appellant’s trial counsel did
mention that the State had not identified the purpose for which the firearms were being offered
and requested that the trial court ask the State to articulate the purpose “for the record.”
Appellant’s argument, however, continued unabated. Other matters were raised and pursued.
Appellant’s counsel never mentioned the request again nor obtained an adverse ruling in order
18 to preserve error, if any. See Tex. R. App. P. 33.1(a). The fifth and sixth points of error are
overruled.
Non-Compliance with Briefing Rules
In the seventh point of error, appellant contends that the “trial court erred in
failing to identify the fact of consequence for which it received the extraneous evidence.” The
appellate brief states:
Appellant asserts the same principles of law discussed in points of error five and six, supra, require this Court to also find that the trial court erred in failing to identify the fact of consequence for which it received the extraneous offense. Appellant refers this Court to the analysis in those points of error.
This is the sum total of point of error seven. It is not adequately briefed and
presents nothing for review. Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995);
Foster v. State, 779 S.W.2d 845, 864 (Tex. Crim. App. 1989); Turro v. State, 950 S.W.2d 390,
401 (Tex. App.—Fort Worth 1997, pet. ref’d). Point of error seven is overruled.
Lack of Relevancy Analysis
In the eighth point of error, appellant claims that the “trial court erred in failing
to conduct a complete relevancy analysis upon 404(b) objection by the defense.” Appellant does
not claim that he made a relevancy objection, but contends that when a Rule 404(b) objection
is made it is inclusive of “a Rule 402 objection.” See Rankin v. State, 974 S.W.2d 707, 709 (Tex.
Crim. App. 1996).
19 By a record page reference, appellant cites us to a pretrial hearing on the
suppression motion where his counsel made mention of Rule 404(b) in his argument to the trial
court. We, however, find no objection on the basis of Rule 404(b), nor was the rule the basis
of the motion to suppress evidence. Moreover, if there was a pretrial Rule 404(b) objection to
evidence of “pillowcases draped over firearms,” appellant has not pointed it out, and we have
not found, where appellant obtained an adverse ruling on the objection so as to preserve error.
See Tex. R. App. P. 33.1(a)(2)(A). Further, appellant has not informed us what evidence was
introduced pretrial over his objection, if any. The eighth point of error is overruled.
Failure to Give Proper Notice
In the ninth point of error, appellant urges that the “trial court erred in admitting,
over appellant’s objection, extraneous bad acts of appellant when the State failed to give proper
notice under 404(b).” It is important to keep in mind the nature of the acts claimed to be
extraneous and bad, the objection made, the trial court’s ruling, and the evidence, if any,
introduced over objection.
Appellant tells us in his brief that the objection was addressed to the proposed
testimony of officers that, when they executed a search warrant at the house where appellant
lived with his mother and brother, they found in a closet two pillowcases draped over firearms.
Appellant claims that this proposed testimony concerned an extraneous bad act on his part and
was not included in the State’s written notices of intent to use extraneous bad act evidence.
Appellant directs our attention to an objection to the lack of notice of the proposed
testimony made during the pretrial hearing on the suppression motion. No ruling was obtained.
20 The matter was raised again after the selection of the jury. Again, no ruling was obtained.
During trial when Detective Curtis began to testify about the search, the jury was removed.
After another hearing, the trial court ultimately overruled the Rule 404(b) notice objection
stating:
I think the Court’s going to overrule the objection and let the officer testify to these and how they were found and where they were draped . . . the court’s still struggling with the 404(b), but it’s going to overrule the objection to that . . . the court finds the State’s notice in that they [defense] have been given the photos and the State’s testimony is sufficient even thought the court is aware that it wasn’t listed.12
(Footnote added.)
Thereafter, however, the trial court sustained the objection to State’s exhibit no.
54 (a photograph displaying the firearms and a knife found in the house) and to State’s exhibit
no. 55 (a photograph of a bedroom and a dog and a shotgun leaning against the wall or the
furniture). The trial court overruled the objection to State’s exhibit no. 53 (a photograph of two
light-colored pillowcases on a flat surface). After the jury returned, State’s exhibit no. 53 was
never offered into evidence, and no officer testified before the jury that in a search two
pillowcases were found draped over two firearms. Under the record we find no merit in
appellant’s “lack of notice” contention. We need not address the State’s claim of a procedural
default that appellant misdirected his original request for notice of extraneous matters under
Rule 404(b) to the trial court and not to the State as required. See Mitchell v. State, 982 S.W.2d
12 The record reflects that certain photographs of guns and the pillowcases had been given by the State to appellant a reasonable time before trial although these items were not listed in the State’s notices of intent to introduce extraneous bad acts.
21 425, 426 n.1 (Tex. Crim. App. 1998). Further, we need not consider whether Rule 404(b) was
inapplicable because the firearms and two pillowcases found in the search were not shown to
be connected to appellant or the crime, and thus were not evidence of an extraneous offense or
bad act as contemplated by the rule. See Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim.
App. 1992). The ninth point of error is overruled.13
A Rule 403 Claim
In the tenth and eleventh points of error, appellant claims that the trial court erred
in admitting evidence of appellant’s bad acts when the probative value of such evidence was
substantially outweighed by the danger of unfair prejudice, and in doing so, did not conduct a
proper balancing test under Rule 403. See Tex. R. Evid. 403.
Strangely, the only evidence mentioned in appellant’s brief is State’s exhibit no.
54 (photograph of firearms found in the house searched). A defense trial objection to the exhibit
was sustained. While the exhibit is in the record, it was never admitted into evidence before the
jury. Moreover, appellant never points out in the record where his particular Rule 403 objection
to the exhibit was made. Appellant relies upon a statement of the trial court in overruling an
“objection based on the search warrant,” that included the remarks “and doesn’t find that it
should be excluded under 403 for unfair prejudicial value.” The trial court had earlier refused
to admit State’s exhibit no. 54 into evidence. It is not clear that the trial court’s later remarks
13 Appellant has not tied his point of error in any way to the cross-examination of appellant’s mother and the admission of State’s exhibits nos. 68 and 69 without further objections.
22 were addressed to State’s exhibit no. 54. The trial court’s remarks may have been gratuitous at
the time they were made.
The trial court must conduct a Rule 403 balancing test, if requested. Santellan v.
State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997); Howland v. State, 966 S.W.2d 98, 103 (Tex.
App.—Houston [1st Dist.] 1998), aff’d., 990 S.W.2d 274 (Tex. Crim. App. 1999). It need not,
however, conduct a formal hearing or even announce on the record that it has mentally
conducted this balancing test. Yates v. State, 941 S.W.2d 357, 367 (Tex. App.—Waco 1997, pet.
ref’d). If the trial court did in fact overrule a Rule 403 objection, the trial court necessarily
conducted the balancing test by considering and overruling the objection. Poole v. State, 974
S.W.2d 892, 897 (Tex. App.—Austin 1998, pet. ref’d). We find no merit in appellant’s tenth
and eleventh points of error. They are overruled.
Jury Argument
Lastly, appellant claims that the trial court erred in overruling his motion for
mistrial based on improper argument by the prosecutor outside the record.
At the guilt/innocence stage of the trial during the jury argument of the
prosecutor, the record reflects:
[Prosecutor]: You also heard the testimony -- and I find it -- I find it interesting, and I hope you do too, that Mr. Turner finds Arturo Malagon’s story silly. Because he encouraged Arturo Malagon not to testify.
MR. TURNER [Defense Counsel]: I object to that.
MS. CASNER [Prosecutor]: You heard the testimony of --.
23 THE COURT: What’s -- what’s --
MR. TURNER: I ask for an instruction on that.
THE COURT: What’s the objection?
MR. TURNER: I object to her insinuating that I ever told a witness to lie, and I object to her going into facts outside the record. There’s no evidence of that.
MS. CASNER: It’s a reasonable inference, Your Honor.
THE COURT: Okay, the jurors are instructed that your verdict must be based solely on the evidence that you observed and heard in this courtroom together with any reasonable inference. I think we should sustain the objection.
MR. TURNER: Move for a mistrial.
THE COURT: That request will be denied.
MS. CASNER: You heard the testimony of Arturo Malagon. That he met with Mr. Turner last Friday, the Friday before trial started. And when asked if Mr. Turner ever explained to him that “Hey, if you don’t testify, if you refuse to testify, the State may not have enough evidence against your buddy, Carlos Soto, to convict him.” He made that statement to Arturo Malagon. You make the inference. You decide whether that encourages Arturo Malagon to get up on the stand and tell the truth or discourage him. And why would that statement be made to him by Mr. Turner.
To the rephrased argument there was no further objection.
Proper jury argument normally falls within one of four areas: (1) summation
of the evidence; (2) reasonable deductions from the evidence; (3) response to argument of
opposing counsel; and (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.
Crim. App. 1999); Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999); Dinkins v. State,
24 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). Even when an argument exceeds the permissible
bounds of these areas, such will not constitute reversible error unless, in light of the record as
a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or
injects new facts harmful to the accused. Todd v. State, 598 S.W.2d 286, 296-97 (Tex. Crim.
App. 1980); see also Guidry, 9 S.W.3d at 154; Allridge v. State, 762 S.W.2d 146, 155 (Tex.
Crim. App. 1988). The remarks must have been a willful and calculated effort on the part of the
prosecution to deprive the accused of a fair and impartial trial. Cantu v. State, 939 S.W.2d 627,
633 (Tex. Crim. App. 1997).
In the instant case, on cross-examination of the co-defendant Malagon,
appellant’s counsel elicited from Malagon that Malagon had met with police officers and the
prosecutor and the meeting was recorded. The record then reflects:
Q: And you met with me and an investigator about a week ago, correct?
A: Yes, sir.
Q: And I asked you if I could record it, correct?
A: And you declined?
Subsequently, on re-direct examination, the prosecutor established that
Malagon had met with her and with police officers and had not been threatened. The record then
reflects:
25 Q: And you met also with Defense Attorney, Mr. Turner.
Q: Did he ever suggest to you that if you chose to refuse to testify that your buddy, Carlos Soto, might get off?
A: I don’t remember, no.
Q: You don’t remember that?
A: No.
Q: Did he ever suggest to you that if you didn’t testify that there was a good chance he might get off.
A: Yes.
MS. CASNER: No other questions.
This testimony was not clarified, rebutted, or otherwise challenged. The
prosecutor’s jury argument was substantiated by the record. It was proper for the prosecution
to summarize the evidence and draw reasonable deductions and inferences therefrom. See
Guidry, 9 S.W.3d at 154. While appellant objected and requested an instruction, he did not
obtain an instruction to the jury to disregard the argument. Moreover, the rephrased argument
apparently suited appellant as he made no further objection. Gardner v. State, 730 S.W.2d 675,
698 (Tex. Crim. App. 1987). Under the circumstances, it cannot be said that the argument was
“outside the record” as claimed by appellant.
For the first time on appeal, appellant contends that the prosecutor in her
argument was striking at appellant over the shoulder of his counsel. See generally 42 George E.
Dix & Robert O. Dawson, Criminal Practice and Procedure § 37.61, at 596-97 (Texas Practice
26 1995). Appellate courts have shown special concern about jury arguments that constitute
uninvited and unsubstantiated accusations of improper conduct directed at a defendant’s
attorney. Gomez v. State, 704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985); see also Wilson v.
State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996). Here, however, the argument is supported by
the record. Further, this complaint on appeal does not comport with any trial objection and
presents nothing for review. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991);
Skillern v. State, 890 S.W.2d 849, 859 (Tex. App.—Austin 1994, pet. ref’d). An objection
stating one legal basis may not be used to support a different legal theory on appeal. Rezac v.
State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). The trial court did not abuse its discretion
in overruling the motion for a mistrial. Point of error twelve is overruled.
The judgment is affirmed.
John F. Onion, Jr., Justice
Before Justices Kidd, Yeakel and Onion*
Affirmed
Filed: January 19, 2001
Do Not Publish
27 * Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).