Johnny Michael Nobles v. State

• Court: Court of Appeals of Texas
• Decided: April 14, 2010
• Docket: 04-09-00234-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00234-CR

Johnny Michael NOBLES, Appellant

v.

The STATE of Texas, Appellee

From the 112th Judicial District Court, Sutton County, Texas Trial Court No. 2142 Honorable Pedro Gomez, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Marialyn Barnard, Justice

Delivered and Filed: April 14, 2010

AFFIRMED

In his sole issue on appeal, Johnny Michael Nobles asserts the trial court erred in admitting

evidence of two prior felony convictions during the guilt/innocence phase of trial. We overrule his

issue on appeal and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Nobles was indicted on one count of aggravated robbery and one count of aggravated assault

with a deadly weapon. The charges arose out of an incident that occurred after Nobles and his 04-09-00234-CR

companion ran out of gas and were picked up along the roadside by the complainant who agreed to

drive them to a gas station. When the complainant refused to drive them back to their van, Nobles

held a box cutter to the complainant’s throat and told him he wanted the complainant’s pickup truck.

The complainant was able to escape and call the police who arrested Nobles. After a jury trial,

Nobles was convicted of both counts and the court assessed the punishment recommended by the

jury of fifty (50) years’ imprisonment on the aggravated robbery count and twenty (20) years’

imprisonment on the aggravated assault with a deadly weapon count, with the sentences to be served

concurrently. Nobles timely appealed.

ANALYSIS

Nobles contends the trial court erred in admitting evidence of two prior convictions, a theft

conviction in 1985 and a burglary of a habitation conviction in 1987. The State responds that Nobles

opened the door and failed to preserve any error in the admission of the prior convictions. Before

trial began, Nobles presented his motion in limine to the court, objecting to any reference to the 1985

and 1987 prior convictions under Rule 6091 of the Texas Rules of Evidence. Even though Nobles

did not specify that he was making a remoteness objection, it is clear from the context of the

discussion that the parties and the court understood that Nobles’s reference to Rule 609 was based

on the fact that two of his prior convictions were more than ten years old. See TEX . R. EVID . 609(b)

(precluding admission of a conviction if more than ten years has elapsed since the conviction date

or release date, unless the court determines the probative value substantially outweighs its prejudicial

effect). The trial court granted Nobles’s motion in limine, and took the Rule 609 objection under

1 … Nobles’s written motion in limine is limited to Rules 401, 404(b), and 403; however, during the hearing on the motion in limine, Nobles’s counsel argued Rule 609 as an additional basis for granting the motion as to prior convictions. TEX . R. EVID . 401, 403, 404(b), 609.

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advisement, stating, “[l]et’s see how it’s all going to pan out.” Therefore, because Nobles did not

obtain an adverse ruling on his Rule 609 remoteness objection, the issue of remoteness of the prior

convictions was not preserved for appellate review at that time. See TEX . R. APP . P. 33.1(a) (to

preserve error for appellate review, the complaining party must obtain a ruling on his objection, or

object to court’s failure to rule). Moreover, a grant of a motion in limine is only a preliminary ruling,

and does not preserve error in the admission of evidence; a separate trial objection must be made at

the time the evidence is offered for admission. Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim.

App. 2003). Here, Nobles’s motion was a true motion in limine, requesting only that the State not

refer to the evidence until a hearing was held to determine its admissibility.

During trial, the State did not attempt to introduce evidence of Nobles’s prior convictions

during its case-in-chief. Nobles testified to his version of events during the defense case. While

describing his reaction when the complainant called the police, Nobles stated, “I have been in trouble

with the law before, and I didn’t want to have anything to do with any officers or anything.” His

counsel then asked several questions which elicited responses from Nobles detailing his past criminal

history and the fact that he was currently on parole. Specifically, Nobles testified that he was

arrested 16 years ago for stealing a vehicle, received an 18-year sentence for escaping from a half-

way house in 1988 while he was on parole for a prior conviction, and served about nine years in

prison for various parole violations during the period from 1993 to 2008. During cross-examination

by the State, Nobles testified, without objection, that he knew he had an outstanding parole violation

warrant based on four months of failing to report at the time of the instant offenses. The State also

questioned Nobles about his prior convictions for burglary of a habitation, escape from a half-way

house, and unauthorized use of a motor vehicle. No objection was made under Rule 609 or

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otherwise. Because Nobles’s motion in limine did not preserve any error in the admission of the

evidence concerning the prior convictions, and Nobles did not raise a trial objection, and in fact

opened the door to the evidence, he failed to preserve any error. Geuder, 115 S.W.3d at 14-15;

Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000) (trial objection is required to preserve

error); TEX . R. APP . P. 33.1(a). Accordingly, we overrule Nobles’s sole issue on appeal, and affirm

the trial court’s judgment.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

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