Whiteside v. State

756 S.W.2d 765, 1988 Tex. App. LEXIS 1674, 1988 WL 67450
CourtCourt of Appeals of Texas
DecidedJune 30, 1988
DocketNo. 13-87-101-CR
StatusPublished
Cited by4 cases

This text of 756 S.W.2d 765 (Whiteside 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
Whiteside v. State, 756 S.W.2d 765, 1988 Tex. App. LEXIS 1674, 1988 WL 67450 (Tex. Ct. App. 1988).

Opinion

OPINION

DORSEY, Justice.

A jury convicted appellant, Heath White-side, of attempted capital murder and assessed punishment at 45 years' imprisonment. Overruling appellant’s two points of error, we affirm the judgment of the trial court.

On October 12, 1986, police officer Robert Cooper was on routine patrol at the Port Aransas beach. He was dressed in full uniform and was driving in a clearly marked police car equipped with overhead lights. At approximately 4:30 a.m., Cooper spotted a white Ford Mustang traveling at a high rate of speed along a portion of the beach where the speed limit was 15 miles per hour. The Mustang stopped, spun around in a “donut” formation several times, and continued traveling in a northern direction.

Cooper began his pursuit after turning on his warning lights and siren, but the driver of the Mustang did not pull over. A high-speed chase ensued until the Mustang finally came to a stop after getting stuck in sand dunes. Cooper pulled his vehicle up alongside the Mustang, got out of his car, and drew his revolver. He told the driver to “freeze” and to place both his hands on the steering wheel. Cooper then stepped back towards the rear of the Mustang and waited for “back-ups” to arrive.

After a few seconds, appellant pulled up behind the two cars in a white Toyota. Cooper glanced at appellant, then turned his attention back to the driver of the Mustang. At that point, appellant drew a gun and shot Cooper three times in the back, causing the officer to fall to the ground. Appellant fired two more shots which struck the sand. Cooper began returning fire as appellant drove his car away from the scene in a southern direction along the beach. Cooper then made his way to his car where he radioed for an ambulance. As he did so, the driver of the Mustang leaned out of the window of that car and fired a shot which struck Cooper in the lower back and knocked him down. Cooper got up and told the driver to “freeze.” When he failed to do so, Cooper shot him three times in the leg.

Back-up units then arrived, and the driver of the Mustang, later identified as appellant’s brother, Terry Whiteside, was apprehended at the scene. Appellant was arrested several hours later after an extensive search.

[767]*767By his first point of error, appellant asserts the trial court erred in admitting evidence of prior convictions during the State’s case-in-chief. The complained-of testimony established that appellant was currently on probation for felony theft and burglary of a vehicle.

Before calling probation officer Kathy Meyers to the stand, the State requested a hearing outside the presence of the jury. The prosecutor told the court that he wanted to elicit Meyers’ testimony in order to show that 1) appellant violated his probationary terms by coming to Nueces County, and 2) appellant’s motive for shooting the officer was to prevent apprehension and the possible revocation of his probation. Appellant’s counsel opposed the introduction of the evidence. The court allowed the testimony after noting appellant’s objection.

During re-direct examination of Meyers, the State offered certified copies of the indictments and judgments against appellant for the theft and burglary offenses. Appellant’s counsel recited “no objection” to the documents when they were offered.

Before we can reach the merits of appellant’s first point of error, that the admission into evidence of extraneous offenses caused reversible error, we must first determine if the right to complain of the evidence on appeal has been preserved. Generally, it is not necessary to renew an objection to evidence before a jury when the objection to the proffered evidence has been made outside the jury’s presence and overruled. Livingston v. State, 739 S.W.2d 311, 334 (Tex.Crim.App.1987). Thus it was not necessary for appellant to renew his objection to Myer’s testimony before the jury. However, when the certified copies of the indictments and judgments of conviction were offered, Exhibits 25, 26A and 26B, appellant affirmatively stated, “no objection.”

When the appellant affirmatively states “no objection” to evidence to which he is not required to object under Livingston, he waives his previous objection and cannot complain of it on appeal. Dean v. State, 749 S.W.2d 80 (Tex.Crim.App.1988); Harris v. State, 656 S.W.2d 481, 484-85 (Tex.Crim.App.1983), cited in Maynard v. State, 685 S.W.2d 60, 65 n. 3 (Tex.Crim.App.1985); cf. Graves v. State, 513 S.W.2d 57 (Tex.Crim.App.1974). As State’s Exhibits 25, 26A, and 26B were certified copies of appellant’s prior indictments and convictions, and thus constituted the same evidence that Meyers testified about, we hold that the rule of Dean and Harris compels the conclusion that the affirmative assertion of “no objection” waives the preservation of the objection to appellant’s prior convictions.

Appellant’s first point of error is overruled.

By his second point, appellant argues the trial court erred in failing to include in the charge his requested issue on defense of a third person.

A defendant is entitled upon timely request to an instruction on every defense which is raised by the evidence, regardless of whether the evidence supporting the defensive theory is contradicted. Smith v. State, 676 S.W.2d 584, 586-87 (Tex.Crim.App.1984); Lugo v. State, 667 S.W.2d 144, 146 (Tex.Crim.App.1984).

Tex.Penal Code § 9.33 (Vernon 1974) provides:

A person is justified in using force or deadly force against another to protect a third person if:
(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 of this code in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person, (emphasis ours).

Section 9.31 reads in pertinent part:

Self-Defense
(a) Except as provided in Subsection (b) of this section, a person is justified in [768]*768using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.
(b) The use of force against another is not justified:
* * * * * *

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Bluebook (online)
756 S.W.2d 765, 1988 Tex. App. LEXIS 1674, 1988 WL 67450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiteside-v-state-texapp-1988.