Javier Francisco v. State

• Court: Court of Appeals of Texas
• Decided: May 19, 2009
• Docket: 14-08-00783-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 19, 2009

Affirmed and Memorandum Opinion filed May 19, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00783-CR

NO. 14-08-00784-CR

JAVIER FRANCISCO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 1143121 & 1143122

M E M O R A N D U M   O P I N I O N

Javier Francisco was convicted of burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping and sentenced to twenty-five years in prison on the burglary charge and twenty years on the aggravated-kidnapping charge.  Francisco challenges his convictions asserting that the trial court erred in admitting evidence of extraneous offenses and victim-impact evidence.  We affirm.

Background

On November 25, 2007, Javier Francisco had been drinking at his home when he and his pregnant wife, Hilda Rodriguez, began arguing.  The argument escalated and Francisco hit her in the face and kicked her in the abdomen.  He then called Hilda=s sister, Liliana, and told her to come get Hilda because he wanted her out of the house.  Impatiently, he called Liliana a second time and threatened to shoot her.

After Liliana arrived to pick up Hilda, Francisco grabbed his wife again.  At this point Hilda and Liliana=s father, who was also at the home, attempted to intervene.  Francisco, who was armed with a small black firearm, struck him with it, knocking him to the ground.  Francisco then left in his car, and Hilda, Liliana, and their father drove to Liliana=s house.

When the three arrived at Liliana=s home, they found the door open and her young children inside alone.  The children explained that Francisco had forced their father and Liliana=s husband, Augustin Mendoza, to leave with him at gunpoint.  The sisters called the police, but Francisco returned with Mendoza before they arrived.  When Liliana would not allow him in, Francisco shattered the glass in the front door and entered.  He kicked in the bedroom door where Hilda was hiding with the children and dragged her by her hair down the stairs and out the front door.  When Mendoza tried to intervene, Francisco hit him with the pistol.  As the two men struggled on the ground, Liliana picked up a piece of metal pipe and struck Francisco with it until he released Mendoza. 

Francisco left just before the police arrived, but was later arrested.  Hilda moved into a battered women=s shelter and later suffered a miscarriage.

Appellant was convicted of burglary of a habitation with intent to commit aggravated assault, and aggravated kidnaping.  In two issues he claims the trial court erred in admitting (1) evidence of extraneous offenses at the guilt-innocence phase of trial and (2) victim-impact evidence at the punishment phase.

Extraneous Offense

In his first issue, Francisco argues the trial court erred in admitting evidence of extraneous offenses.  Francisco was indicted for burglary of a habitation owned by Mendoza with the intent to commit aggravated assault, and kidnapping Mendoza with the intent to prevent his liberation by threatening him with a firearm.  Francisco asserts that the assaults on Hilda and her father at Francisco=s home were inadmissible extraneous offenses.

Before trial, Francisco=s attorney objected as follows:

I=m B I guess I wanted to get a motion in limine not to go into certain things.  I guess I=m objecting to relevance or I could object in front of the jury.  I believe the State intends to bring testimony that my client attacked his wife, his father-in-law in his residence.  He=s not charged with those crimes or possible crimes in this case. 

* * * * *

I believe the State wants to bring in the earlier incident and I=m objecting to that for relevance I think it=s completely separate.

The trial court determined that the incidents at Francisco=s house were Anear enough in time,@ and part of the Asame ongoing circumstance@ of the charged offenses and permitted the testimony.  Francisco did not object to Hilda and Liliana=s testimony of those incidents at trial.

The State initially contends that Francisco failed to preserve error because he pursued his objection to the evidence only in a motion in limine and failed to timely object at the time the evidence was introduced. A trial judge=s grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing for appellate review.  Geuder v. State, 115 S.W.3d 11, 14B15 (Tex. Crim. App. 2003).  The purpose of a motion in limine is to require counsel to approach the bench and obtain permission from the trial court before presenting certain matters in the presence of the jury.  It is, in practice, a method of raising objection to an area of inquiry before the matter reaches the eyes and ears of the jury through a posed question, jury argument, or other means.  As such, it is wider in scope than the sustaining of an objection made after the objectionable matter has been expressed.  It is also, however, by its nature subject to reconsideration by the court throughout the course of the trial.  This is because it may not be enforced to exclude properly admissible evidence.  Id. at 15 (quoting Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975)).

Francisco argues that although he titled his request a motion in limine, it was actually an evidentiary ruling obtained outside the presence of the jury, as occurred in Geuder v. State.  In Geuder, the appellant=s request was made after the State had rested, immediately before the appellant testified.  In his request, Geuder sought a definitive final ruling on a timely and specific motion to exclude evidence.  In this case, however, Francisco=s request was not a timely and specific motion, but a true motion in limine.  Francisco sought to prevent particular matters from coming before the jury.  He did not advert to particular testimony of individual witnesses, but referred to the testimony of Hilda and Liliana generally.  On appeal, Francisco points to specific portions of testimony, but he did not permit the trial court an opportunity to determine whether that testimony was admissible at the time it was introduced.  Therefore, error was not preserved. 

Even if Francisco preserved error, the evidence was admissible to show the circumstances surrounding the offense.  We review a trial court=s evidentiary decisions for an abuse of discretion.  Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).  Under this standard, we are required to uphold the ruling when it is within the zone of reasonable disagreement.  Id at 15. 

Rule of Evidence 404(b) prohibits the use of evidence of a defendant=s other bad acts or wrongs to prove the character of the defendant Ain order to show action in conformity therewith.@  Tex. R. Evid. 404(b).  Nevertheless, evidence of extraneous offenses may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Id.  Moreover, evidence of extraneous offenses may be admitted if they occurred during the same transaction as the charged offense.  Nguyen v. State, 177 S.W.3d 659, 666B67 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d).  A[I]t has long been the rule in this State that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.@  Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986).

Francisco was charged with burglarizing Mendoza=s home with the intent to commit aggravated assault, and kidnapping Mendoza.  Evidence that Francisco assaulted Hilda and her father fifteen minutes before he broke into Mendoza=s home, kidnapped Mendoza, and assaulted Hilda provided the jury with the context of the charged offenses.  Because the assaults on Hilda and her father were part of the same criminal transaction as the burglary and kidnapping, the evidence was properly admitted as same transaction contextual evidence.  See Nelson v. State, 864 S.W.2d 496, 498 (Tex. Crim. App. 1993) (holding that same-transaction contextual evidence is admissible where several crimes are intermixed, blended, or connected with one another, so that they form an indivisible criminal transaction, and full proof by testimony of any one of them cannot be given without showing the others).  We overrule Francisco=s first issue.

Victim Impact

In his second issue, Francisco argues that the trial court erred in admitting victim-impact evidence during the punishment phase of trial.  Before the guilt-innocence phase of trial, Francisco objected to the prosecutor=s introduction of Hilda=s miscarriage during the guilt-innocence phase.  The trial court granted Francisco=s motion in limine for purposes of the guilt-innocence phase and agreed to reconsider the relevance of Hilda=s miscarriage before the punishment phase. 

Before hearing testimony in the punishment phase, Francisco=s attorney stated he anticipated the State would introduce evidence that Hilda=s miscarriage was a result of Francisco=s assault.  The trial court requested a proffer of evidence, which showed that Hilda suffered a miscarriage seventeen days after the assault, on December 12, 2007, while she was living in a battered women=s shelter.  Francisco=s attorney objected to any evidence that linked the assault with the miscarriage.  The trial court permitted testimony that Hilda was living in a battered women=s shelter as victim-impact evidence.  The court specifically prohibited the State from arguing that Francisco=s assault caused Hilda=s miscarriage.  The trial court stated, AI=m letting it in only for the limited purpose of the impact on her that she loses a baby while in a shelter, not that he caused the miscarriage but his actions caused her to be in a shelter when that horrible event happened.@

On appeal, Francisco contends that Hilda=s testimony was inadmissible because evidence of the impact to victims not named in the indictment creates the risk of extreme prejudice and can lead to an unfair punishment hearing.  See Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim. App. 1997) (evidence of impact to victim not named in the indictment is not permissible under the eighth amendment).  But an objection stating one legal basis may not be used to support a different legal theory on appeal.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  To preserve error, a defendant=s trial objection must comport with the issue raised on appeal.  Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994).

At trial, Francisco objected on the grounds that the State cannot prove that his actions caused Hilda=s miscarriage, and the trial court sustained the objection.  On appeal, Francisco raises a different issueCwhether victim-impact evidence concerning an individual not named in the indictment is admissible.  The trial court was not given an opportunity to rule on that objection; therefore, Francisco did not preserve error.  Because his issue on appeal does not comport with his trial objection, we overrule issue two.

The judgments of the trial court are affirmed.

/s/      Jeffrey V. Brown

Justice

Panel consists of Justices Seymore, Brown, and Sullivan.

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