Terence Danta Lavine v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00452-CR

TERENCE DANTA LAVINE APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

MEMORANDUM OPINION1 ------------

A jury convicted Appellant Terence Danta Lavine of misdemeanor assault-

family violence involving his girlfriend and assessed his punishment at 365 days’

confinement. In his two issues, Lavine complains that the trial court abused its

discretion by allowing the State to introduce State’s Exhibits 12, 13, and 14 and

by allowing a probation officer to testify that Lavine was not a suitable candidate

for probation when no evidence was introduced regarding the officer’s training,

1 See Tex. R. App. P. 47.4. qualifications, or experience to give an expert opinion. The State responds that

Lavine has failed to preserve both of these complaints.

During the guilt-innocence phase of trial, Lewisville Police Officer Michael

Owen testified that he spoke with Lavine at the couple’s apartment and that the

police took photographs of the complainant, the apartment, and Lavine. The

State offered these photographs—State’s Exhibits 2 through 23—into evidence

after Officer Owen gave brief descriptions of them. Lavine then objected to the

admission of State’s Exhibits 12 through 14, which Officer Owen had described

as photographs of a broken clock that the police had found in the kitchen, and

the trial court overruled the objection and admitted all of the photographs. Lavine

did not renew his objection when Officer Owen subsequently restated to the jury

that State’s Exhibits 12 through 14 were photographs of ―the broken clock in the

kitchen.‖

During the punishment phase, Randolph Flennoy, a senior probation

officer, testified that in August 2011, Lavine was placed on deferred adjudication

community supervision for an assault-bodily-injury-of-a-family-member offense

involving a different complainant. Flennoy explained that Lavine had violated

some of the conditions of his community supervision for that offense, and the

following dialogue occurred:

Q. As someone who supervised the defendant previously while on probation, would you recommend him to this jury as a suitable candidate for probation?

2 [Lavine’s counsel]: Excuse me. Your Honor, at this time, I’m going to object to him giving an opinion as a probation officer as to the outcome of this case. That—that violates the purview of the jury. They get to make that decision, not recommendations from the probation department.

THE COURT: I’ll overrule the objection.

Flennoy then stated that he would not recommend Lavine as a candidate for

probation.

To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d

252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.

App.—Fort Worth 2013, pet. ref’d). Further, a party must continue to object each

time the objectionable evidence is offered to preserve the error. Geuder v. State,

115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189,

193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.

Crim. App. 1991)); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth

2012, no pet.). And the complaint made on appeal must comport with the

complaint made in the trial court or the error is forfeited. Clark v. State, 365

S.W.3d 333, 339 (Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92

(Tex. Crim. App. 2009) (―A complaint will not be preserved if the legal basis of the

complaint raised on appeal varies from the complaint made at trial.‖); Pena v.

State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (―Whether a party’s particular

3 complaint is preserved depends on whether the complaint on appeal comports

with the complaint made at trial.‖).

Lavine did not object to Officer Owen’s testimony about the broken clock

either before or after the photographs were admitted. See Tex. R. App. P.

33.1(a); Geuder, 115 S.W.3d at 13; see also Ford v. State, 919 S.W.2d 107, 117

(Tex. Crim. App. 1996) (―An objection to photographic evidence is waived if the

same information contained in the photographs is conveyed to the jury in some

other form.‖). And Lavine did not object to Flennoy’s testimony on the basis of

his qualifications to give an opinion with regard to training or experience; instead,

he objected that Flennoy’s testimony violated the jury’s purview. Cf. Ellison v.

State, 201 S.W.3d 714, 722–23 (Tex. Crim. App. 2006) (stating that a probation

officer may give an opinion on a defendant’s suitability for probation). Lavine has

therefore failed to preserve either of these complaints for our review, and we

affirm the trial court’s judgment.

PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: January 30, 2014