Raymond Obregon v. State

CourtCourt of Appeals of Texas
DecidedJanuary 17, 1996
Docket03-94-00604-CR
StatusPublished

This text of Raymond Obregon v. State (Raymond Obregon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raymond Obregon v. State, (Tex. Ct. App. 1996).

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00604-CR



Raymond Obregon, Appellant



v.



The State of Texas, Appellee



FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY

NO. 407-185, HONORABLE DAVID CRAIN, JUDGE PRESIDING



Appellant Raymond Obregon appeals from his conviction for resisting arrest. Tex. Penal Code Ann. § 38.03 (West 1994). The trial court assessed punishment of imprisonment for 180 days, probated for one year, and a fine of $1,500.00. Appellant complains that the trial court erred both in admitting evidence and in refusing to admit other evidence, and in refusing to give requested jury instructions. Appellant also claims the trial court erred by violating its own motion in limine order and in admitting evidence that placed appellant twice in jeopardy. We will affirm the judgment.

In his first point of error, appellant urges that the trial court erred in refusing to grant his motion for mistrial after having admitted evidence of an extraneous offense. (1) The jury's verdict was received on August 31, 1994 and the jury was discharged. On September 7, 1994 at the punishment and sentencing hearing, appellant moved for the mistrial on which he relies in this point of error. The motion for mistrial, complaining of the evidence admitted before the jury was made long after the jury's verdict was received and the jury discharged; it was untimely and failed to preserve for appellate review the claimed error. Tex. R. App. P. 52 and Tex. R. Crim. Evid. 103(a)(1)(2). Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Shelvin v. State, 884 S.W.2d 874, 876 (Tex. App.--Austin 1995, pet. ref'd); Lawson v. State, 854 S.W.2d 234, 238-39 (Tex. App.--Austin 1993, pet. ref'd). Moreover, appellant testified concerning the same matter about which he now complains, rendering any error harmless. Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993); McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991). Appellant's first point of error is overruled.

In his second point of error, appellant urges that the trial court erred in disallowing evidence to rebut erroneously admitted evidence of an extraneous offense. He argues that he was not allowed to offer evidence to "meet, explain, contradict, and refute" evidence of an extraneous offense that he says was erroneously admitted. We quote the portion of the record which appellant designates as reflecting the error.



Defense Counsel: Did you assume that Mr. Obregon was guilty of the charge that he was being arrested for?



Prosecutor: Objection to relevance. He was there to issue, or execute, a warrant, not to try this person. And I object to the relevance of asking the officer if he thought he was guilty. It's a legal conclusion.



Defense Counsel: Well, Your Honor, I believe that the county attorney has asked about whether he engages in dialogue with people who are charged with what Mr. Obregon is charged with. I think that it's a perfectly rational question.



The Court: I'll sustain the objection.



Appellant's trial objection, complaining of the Court's sustention of the State's objection, is not the same as that argued on appeal. At trial, appellant did not urge that he wanted the officers' answer to his question to "meet, explain, contradict, or refute" evidence of an extraneous offense. As we have pointed out in our disposition of the first point of error, appellant did not object to the asserted extraneous offense evidence until seven days after the jury had returned its verdict and had been discharged. Because appellant's complaint is different from his trial objection, no error was preserved for review. A point of error must correspond to the trial objection. Fuller v. State, 827 S.W.2d 919, 928 (Tex. Crim. App. 1992); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Furthermore, appellant failed to preserve for review the asserted error because he failed to obtain for his bill of exception and the record the officer's answer to his question. Tex. R. App. P. 52; Tex. R. Crim. Evid. 103(a)(1)(2); Barnard v. State, 730 S.W.2d 703, 717-18 (Tex. Crim. App. 1987); Adams v. State, 577 S.W.2d 717, 720 (Tex. Crim. App. 1979).

In his third point of error, appellant asserts that the trial court erred by violating its own ruling on appellant's motion in limine by allowing additional evidence of the not guilty disposition of the extraneous offense. Appellant did not make a timely objection to the admission of the evidence he complains was erroneously admitted. He made an untimely motion for mistrial after the jury's verdict was received. The granting of a motion in limine will not preserve error. Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972). For error to be preserved even though a motion in limine has been granted, it is absolutely necessary that an objection be made when the evidence is offered. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994); Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985). Nor will an untimely motion for a mistrial preserve the error. Wilkerson, 881 S.W.2d at 326; Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990). A violation of an order granting a motion in limine may entitle a party to relief, but any remedy available for such violation is for the trial court to impose. Brazzell, 481 S.W.2d at 131. A trial court's order granting or denying a motion in limine will not preserve error; the trial court does not commit error by "violating" its own order on a motion in limine. Appellant's third point of error is overruled.

In his fourth point of error, appellant contends that the trial court erred "in admitting evidence which put appellant twice in jeopardy for the extraneous offense." The offense for which appellant was convicted is resisting arrest committed when officers were executing an arrest warrant issued pursuant to a charge that appellant assaulted his wife.

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Related

Thomas v. State
723 S.W.2d 696 (Court of Criminal Appeals of Texas, 1986)
Patel v. State
856 S.W.2d 486 (Court of Appeals of Texas, 1993)
Gonzales v. State
685 S.W.2d 47 (Court of Criminal Appeals of Texas, 1985)
Wilkerson v. State
881 S.W.2d 321 (Court of Criminal Appeals of Texas, 1994)
Ethington v. State
819 S.W.2d 854 (Court of Criminal Appeals of Texas, 1991)
Mayes v. State
816 S.W.2d 79 (Court of Criminal Appeals of Texas, 1991)
Barnard v. State
730 S.W.2d 703 (Court of Criminal Appeals of Texas, 1987)
Hughes v. State
850 S.W.2d 260 (Court of Appeals of Texas, 1993)
Johnson v. State
803 S.W.2d 272 (Court of Criminal Appeals of Texas, 1991)
Parr v. State of Texas
557 S.W.2d 99 (Court of Criminal Appeals of Texas, 1977)
Brazzell v. State
481 S.W.2d 130 (Court of Criminal Appeals of Texas, 1972)
Hermosillo v. State
903 S.W.2d 60 (Court of Appeals of Texas, 1995)
Alford v. State
866 S.W.2d 619 (Court of Criminal Appeals of Texas, 1993)
Shelvin v. State
884 S.W.2d 874 (Court of Appeals of Texas, 1994)
Harrell v. State
884 S.W.2d 154 (Court of Criminal Appeals of Texas, 1994)
George v. State
890 S.W.2d 73 (Court of Criminal Appeals of Texas, 1994)
Fuller v. State
827 S.W.2d 919 (Court of Criminal Appeals of Texas, 1992)
Gerber v. State
845 S.W.2d 460 (Court of Appeals of Texas, 1993)
McFarland v. State
845 S.W.2d 824 (Court of Criminal Appeals of Texas, 1992)
Adams v. State
577 S.W.2d 717 (Court of Criminal Appeals of Texas, 1979)

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