Christopher Lawayne Cotton v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2006
• Docket: 14-05-01078-CR
• Status: Published

Opinion

Affirmed and Opinion filed June 27, 2006

Affirmed and Opinion filed June 27, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01078-CR

CHRISTOPHER LAWAYNE COTTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1016230

O P I N I O N

Appellant, Christopher Lawayne Cotton, appeals after a jury convicted him of murder and assessed a punishment of twenty-two years= incarceration in the Texas Department of CorrectionsCInstitutional Division.  In his sole point of error, appellant contends that the trial court erred in admitting evidence of an extraneous offense.  We affirm.

Background

On February 9, 2005, appellant visited Erica Johnson=s apartment.  Decedent Carson Jones, Jr. and several other men were at Johnson=s apartment when appellant arrived.  Johnson testified that appellant became upset after learning that she had taken his cell phone.  An altercation ensued, and a man named Christopher Taylor shoved appellant.  According to Johnson, appellant then produced a gun and began shooting at Jones; one of the shots grazed Jones= head.  Appellant ran outside, pursued by the other men.  Appellant fired two more shots outside, then ran back inside the apartment and fired two final shots at Jones.  While appellant=s testimony essentially corroborated Johnson=s account of the shooting, appellant also testified that Taylor had a gun and threatened to kill him, thereby prompting him to act in self-defense.  According to medical examiner Dr. Roger Milton, Jr., Jones died from gunshot wounds to the head, chest, and abdomen.

Appellant was charged with murder.  A jury found him guilty and assessed a punishment of twenty-two years= incarceration.

Analysis

On appeal, appellant argues that the trial court erred in allowing the State to question him about an extraneous offense because its prejudicial effect outweighed its probative value and appellant did not Aopen the door.@  Appellant has failed to preserve any error for appellate review.

It is unclear from appellant=s brief which extraneous offense forms the basis of his appeal.  Appellant complains that the State undermined his credibility by Aimproperly rais[ing] an extraneous offense, specifically one that involved the discharge of a firearm.@  However, he also mentions the State=s questions regarding an alleged prior kidnapping.  Accordingly, we will discuss both of these extraneous offenses.

The first extraneous offense is an alleged kidnapping.  On cross-examination, the prosecutor asked appellant: AYou didn=t want to tell the police what happened because you knew you were guilty of coldblooded [sic] murder, right?@  Defense counsel objected to the question as argumentative, but the trial judge told appellant:  AYou can answer it.@  Appellant testified as follows:

[Appellant]:  No ma=am.  I was just scared of the fact because they said I was armed and dangerous, which I wasn=t even armed at all and I=m not a dangerous person.

[Prosecutor]:  You=re not a dangerous person?

[Appellant]:  No, ma=am.

[Prosecutor]:  Now, that is not really true, is it, because you kidnapped Erica Johnson before, right?

[Prosecutor]:  You didn=t make her take her clothes off and get into the trunk of a car because you were mad at her?

[Prosecutor]:  October 30 of 2004?

[Prosecutor]:  And you andC

[Defense Counsel]:  May we approach.

At the bench conference, defense counsel objected that the prosecutor could not Alead a defendant into an area, get him to say things and then turn around and introduce extraneous  offenses.@ He argued that the prosecutor=s Awhole area of questioning@ was designed to introduce the extraneous offense and that appellant Adidn=t open the door.@  The judge stated that A[c]learly if questions were . . . asked to try to draw [appellant] into such an area, then I would sustain an objection,@ but he asserted that appellant had volunteered the information that he was not dangerous.  Defense counsel simply responded: AOkay.@

The second extraneous offense involved discharging a firearm.  After the bench conference, the cross-examination continued as follows:

[Prosecutor]:  Now, in fact, Mr. Cotton, you are dangerous, aren=t you?

[Prosecutor]:  Isn=t it true that on August 11, 2003, you discharged a firearm in the direction of Shalanda . . . Gatlin?

[Prosecutor]:  All right.  So you didn=t call the police because they were calling you armed and dangerous, right?

[Appellant]:  Yes, ma=am.

Appellant has failed to preserve any error for appellate review.  To preserve error, the complaining party must make a timely, specific objection.  Tex. R. App. P.  33.1(a)(1);  Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).  The objection must be made at the earliest possible opportunity and the complaining party must obtain an adverse ruling from the trial court.  Tex. R. App. P. 33.1(a)(2); Dixon, 2 S.W.3d at 265.   The point of error on appeal must correspond to the objection made at trial.  Tex. R. App. P. 33.1(a)(1)(A); Dixon, 2 S.W.3d at 265.

Defense counsel=s sole objection during the cross-examination was to argumentative questioning; counsel made no reference to Aopening the door@ until after the State had asked several questions and elicited answers from appellant regarding the alleged kidnapping.  Similarly, counsel made no objection when the prosecutor asked about the firearm incident.  Thus, counsel failed to timely object to the extraneous offenses.  Because counsel did not object under Texas Rules of Evidence 403, 404, or 609 regarding either offense, appellant cannot raise these issues on appeal.  See Tex. R. App. P. 33.1(a)(1)(A).  We overrule appellant=s point of error and affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed June 27, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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