Ryan Rashad Merritt v. State

• Court: Court of Appeals of Texas
• Decided: October 18, 2012
• Docket: 01-08-00939-CR
• Status: Published

Opinion

Opinion issued October 18, 2012.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-08-00939-CR ——————————— RYAN RASHAD MERRITT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 400th Judicial District Court Fort Bend County, Texas Trial Court Case No. 46598

MEMORANDUM OPINION

A jury found appellant, Ryan Rashad Merritt, guilty of the offense of arson

of an insured and mortgaged vehicle,1 and the trial court assessed his punishment at

1 See TEX. PENAL CODE ANN. § 28.02 (Vernon Supp. 2012). confinement for ten years and one day. In four issues, appellant contends that the

evidence is legally and factually insufficient to support his conviction, the trial

court erred in admitting evidence of extraneous offenses during the guilt phase of

trial, and the cumulative effect of the trial court’s errors deprived him of a fair trial.

We previously held that the evidence is legally insufficient to support

appellant’s conviction for the offense of arson of an insured and mortgaged

vehicle, and we sustained Merritt’s first issue. Merritt v. State, No. 01–08–00939–

CR, 2011 WL 846229, at *10 (Tex. App.—Houston [1st Dist.] March 10, 2011),

rev’d, Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012). Having so held,

we did not address appellant’s second, third, and fourth issues. See id. The Texas

Court of Criminal Appeals, concluding that legally-sufficient evidence supports

appellant’s conviction, reversed our judgment and remanded the case to us to

address appellant’s remaining points. Merritt v. State, 368 S.W.3d 516, 528 (Tex.

Crim. App. 2012). Additionally, we now review, in criminal cases, the factual

sufficiency of the evidence under the same appellate standard of review as that for

legal sufficiency. See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.

Crim. App. 2010)). Accordingly, the only remaining issues are appellant’s

complaints that the trial court erred in admitting evidence of extraneous offenses

2 during the guilt phase of trial and that the cumulative effect of the trial court’s

errors deprived him of a fair trial.2

We affirm.

Extraneous Offenses

In his third issue, appellant argues that the trial court erred in admitting

evidence that he engaged in the extraneous offense of identity theft because “the

unfair prejudicial effect” of the extraneous evidence influenced the jury to find that

he “must have [also] committed the arson.”

To preserve error for appellate review, the complaining party must make a

“timely request, objection, or motion.” TEX. R. APP. P. 33.1(a)(1). Furthermore,

“[w]hen the defendant affirmatively asserts at trial that he has ‘no objection’ to the

admission of the complained of evidence, he waives any error in the admission,”

despite having obtained a previous ruling. Marbles v. State, 874 S.W.2d 225, 228

(Tex. App.—Houston [1st Dist.] 1994, no pet.) (citing Mayberry v. State, 532

S.W.2d 80, 83–84 (Tex. Crim. App. 1975)). To preserve error regarding the

admission of evidence, a party must object each time that the inadmissible

evidence is offered or obtain a running objection. Lane v. State, 151 S.W.3d 188,

2 Both this Court, in our prior opinion, and the court of criminal appeals have provided an in-depth discussion of the background facts in this case. See Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012); Merritt v. State, No. 01–08– 00939–CR, 2011 WL 846229, at *9 (Tex. App.—Houston [1st Dist.] March 10, 2011), rev’d, Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012). 3 193 (Tex. Crim. App. 2004). Additionally, “[a]n error . . . in the admission of

evidence is cured where the same evidence comes in elsewhere without objection.”

Id. (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)).

During trial, the State entered into evidence multiple exhibits pertaining to the

allegation that appellant had engaged in identity theft or fraud, to which appellant

affirmatively responded, “No objection.” For example, appellant had “[n]o

objection” when the State offered State’s Exhibit 4, a copy of David Ross’s

driver’s license that it used to compare Ross’s signature with signatures on loan

applications for the sports utility vehicle that appellant was ultimately convicted of

destroying. Additionally, when the State offered into evidence State’s Exhibit 7, a

title application under David Ross’s name and evidence of the extraneous offense

of identity theft, appellant responded with, “No objections.”

Furthermore, appellant did not object to other testimony concerning the

extraneous matters of identity theft or fraud. During Ross’s testimony, he was

asked if the signature on a credit application for the purchase of the tires for the

destroyed sports utility vehicle was his, and he responded, “No it’s not.”

Additionally, appellant did not object to testimony concerning identity theft that

was provided by Carlos Mesa, the owner of the store where appellant bought tires

for the destroyed sports utility vehicle, and Mike Nyugen, the finance manager at

the dealership where the destroyed sports utility vehicle was purchased. In sum,

4 evidence that appellant had committed the offense of identity theft was repeatedly

introduced, in both documentary and testimonial form, without objection during

trial. Accordingly, we hold that appellant has waived his issue regarding the

admission of extraneous offense evidence.

We overrule appellant’s third issue.

Cumulative Error

In his fourth issue, appellant argues that he was denied a fair trial because

the “cumulative effect” of unidentified errors “completely destroyed any notion of

a fair trial.”

A number of errors may be found harmful in their cumulative effect. See

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); Stahl v. State,

749 S.W.2d 826, 832 (Tex. Crim. App. 1988). Appellant asserts that “improper

admission of the extraneous offense of identity theft,” “evidentiary errors” during

trial, and “an improper jury charge” resulted in an unfair trial. Although appellant

asserts that these errors are “fully explained” in his brief, he has not cited us to any

“evidentiary errors” other than the extraneous offense evidence. He merely states:

“When the full force of these numerous errors and their associated harm is

assessed, there is no doubt that their cumulative effect completely destroyed any

notion of a fair trial.”

5 Again, the only specific error that appellant identifies concerns the

admission of extraneous offense evidence, and we have already rejected this

complaint. With nothing else to review, appellant has failed to adequately brief

this issue and, thus, he has waived this issue for our review. See TEX. R. APP. P.

38.1(i).

We overrule appellant’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).