Dixon v. State

2 S.W.3d 263, 1999 Tex. Crim. App. LEXIS 91
CourtCourt of Criminal Appeals of Texas
DecidedSeptember 15, 1999
Docket021-98, 022-98
StatusPublished
Cited by416 cases

This text of 2 S.W.3d 263 (Dixon v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dixon v. State, 2 S.W.3d 263, 1999 Tex. Crim. App. LEXIS 91 (Tex. 1999).

Opinions

[264]*264 OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, J.

delivered the opinion of the Court, joined by

OVERSTREET, MEYERS, MANSFIELD, PRICE, and HOLLAND, JJ.

Appellant was convicted of incest, indecency with a child, and aggravated sexual assault and sentenced to 25 years on each of the first two offenses and 45 years on the latter. Tex. Penal Code Ann. §§ 25.02, 21.11, 22.021. The Court of Appeals affirmed. Dixon v. State, 923 S.W.2d 161 (Tex.App.—Fort Worth 1996){Dixon I). This Court vacated that judgment and remanded the case to the Court of Appeals. Dixon v. State, 928 S.W.2d 564 (Tex.Cr.App.1996)(Dixon II). On remand, the Court of Appeals again affirmed. Dixon v. State, 955 S.W.2d 898 (Tex.App.—Fort Worth 1997)(Dixon III). We granted review of that decision to determine if the Court of Appeals erred in holding that a defense witness could be properly impeached by evidence of a pending felony, and whether that error, if any, was preserved for review.1

I.

A.

During his case-in chief, appellant called Elmer Pelfrey as a witness. At the time of his testimony, Pelfrey was under indictment for two felonies pending in the same court as the instant case. Before Pelfrey testified, his attorney, Bradford Shaw, presented the following motion:

My name is Bradford Shaw. I’m an attorney for Elmer Pelfrey. He has been charged with two felony indictments in this particular court, and I would motion the Court, at this time, to enter an order prohibiting the State’s attorneys from asking him any questions concerning his guilt in these two offenses that are currently pending, based on his Fifth Amendment rights and under Article I, Section 10 of the Texas Constitution.
That would also include asking whether or not he is charged with these offenses. As you are well aware, he is presumed to be innocent, and that the rules of evidence provide that a person may be — testimony may be impeached by the admission or the asking of a felony conviction. And in this instance, he has not been convicted. These cases are pending. We would ask the Court enter an order in accordance with my request.

The trial judge denied Pelfrey’s request based upon “bias and motive.” When the State attempted to question Pelfrey regarding his two pending charges, appellant objected and the trial judge stated, “[f]or the reasons stated previously, I will overrule the objection.”

B.

The Court of Appeals originally held appellant had failed to properly preserve error by his general objection.

Based on these facts, we find that Dixon waived his complaint about the admission of Pelfrey’s pending charges. First, to the extent Dixon is relying on the objections of another attorney to preserve his present complaint, his reliance is misplaced. See Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.—Dallas 1992, pet. ref d) (a defendant who has not voiced his own personal objection or adopted that of his codefendant is foreclosed from relying on the objection of his codefendant to preserve error). There is no indication in the record that Dixon adopted or intended to [265]*265adopt the objections urged by Pelfrey’s attorney in the hearing held immediately before Pelfrey’s testimony. Therefore, Dixon cannot use an objection that he did not advance at trial to preserve his complaint for appellate review.

Dixon I, 923 S.W.2d at 164-165.

On discretionary review, we considered the preservation issue. Dixon II, 928 S.W.2d at 564. In a unanimous decision, we held:

In his petition for discretionary review, Appellant submits that the Court of Appeals failed to recognize that under this Court’s opinions in Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977) and Lankston v. State, 827 S.W.2d 907 (Tex.Cr.App.1992), a general objection will preserve error if its grounds are apparent to the trial judge. He argues that because the trial court overruled the objection and ruled the impeachment proper “for the reasons stated previously,” it understood the grounds for Appellant’s objection to be the same as those previously voiced by Pelfrey’s counsel.
We agree. Since the trial court explicitly overruled Appellant’s objection for the reasons stated previously, i.e., the reason given for overruling Pelfrey’s objection, the judge was treating Appellant’s objection as an adoption of Pel-frey’s. Therefore, the Court of Appeals erred by holding that error was not preserved because counsel’s objection was too general to apprise the trial court of its grounds.

Id., 928 S.W.2d at 564-565. The judgment of the Court of Appeals was vacated and the cause remanded to that court for disposition consistent with our opinion. Id., 928 S.W.2d at 565.

On remand, (Dixon III), the Court of Appeals again determined appellant had failed to preserve error. The remand decision was based on the ruling of the trial court when appellant’s objection was made. The Court held:

Although Dixon argues on appeal that the evidence is inadmissible under Rule 612(b), neither Dixon’s nor Pelfrey’s counsel objected on that ground either during the hearing or during the State’s cross-examination of Pelfrey. Even after the trial court informed defense counsel that it would admit the evidence to show bias or motive, no objection was made to the court’s ruling on the basis of Rule 612(b). When the evidence was admitted, Dixon’s counsel made only a general objection based on Rule 608(b) grounds.

Id., 955 S.W.2d at 900.

We begin our review by determining whether appellant preserved error, if any.

II.

To preserve error for appellate review, the complaining party must make a timely, specific objection. Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Cr.App.1985). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980). The complaining party must obtain an adverse ruling from the trial court. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App.1979). Finally, the point of error on appeal must correspond to the objection made at trial. Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986).

In Dixon II, we determined appellant’s objection to the State’s cross-examination of Pelfrey regarding his pending charges adopted the objection lodged by Pelfrey’s attorney. Dixon II, 928 S.W.2d at 564-65. Appellant specifically objected to:

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2 S.W.3d 263, 1999 Tex. Crim. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixon-v-state-texcrimapp-1999.