Opinion
No. 07-17-00077-CR No. 07-17-00078-CR
01-05-2018
JEREMY WILLIAM AMERO, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court Randall County, Texas
Trial Court No. 26,245-A, Honorable Dan L. Schaap, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant Jeremy William Amero was convicted, on his open pleas of guilty, of two felony offenses of aggravated assault with a deadly weapon, and received concurrent sentences of ten years of imprisonment. Through one issue, appellant contends the trial court erred by allowing the State to present evidence of extraneous offenses at the punishment hearing. We will affirm.
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2018).
Aggravated assault with a deadly weapon is a second-degree felony punishable by imprisonment for any term of not more than 20 years or less than 2 years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2018).
Background
Appellant's charges arose from an altercation appellant had with his girlfriend. Evidence showed appellant was driving his vehicle, closely following his girlfriend, who was riding in a car with another woman. During these events, he exhibited a shotgun and pointed the gun at another driver who attempted to intervene. When police stopped appellant, officers found a loaded pump shotgun in the front passenger seat of his car. Appellant was indicted for assaults by threat of the woman with whom his girlfriend was riding, and of the other driver.
Appellant plead guilty to each charge and elected for the trial court to assess punishment. The court held a punishment hearing during which several witnesses testified. Some of the testimony concerned other offenses that occurred in June 2016, several months after the indicted offenses. The evidence showed that on the June 2016 occasion appellant pointed a gun at a woman and then pointed it at his own head. Officers were called and appellant surrendered after he engaged in a standoff with law enforcement.
Analysis
Appellant's issue contends the trial court erred by allowing the State to elicit evidence of the events that occurred in June 2016. The State contends appellant's issue is not preserved for our review. We agree.
We first note our disagreement with appellant's view of one aspect of the record. Appellant's brief argues the State, before the presentation of its punishment evidence, told the court it would not question its witnesses about the June 2016 events. The State argues the record shows only that the prosecutor agreed she would not question appellant's girlfriend about those events. The State is correct. During discussion in open court about the potential testimony of appellant's girlfriend, who had counsel present because of possible charges against her arising from the June 2016 events, the prosecutor said, "I am not going to ask her any questions about that day," and later reiterated, "And I'm not going to talk about that day, period." After further discussions, it developed that the girlfriend was not called to testify at all. We think the record is clear that the prosecutor's representations had only to do with the potential questioning of the girlfriend.
Another witness, Amanda Arias, took the stand and the prosecutor promptly told her, "Now, I want to talk to you about [the June 2016] incident." Appellant raised an objection having to do with the sufficiency of the State's notice provided under section 3(g) of article 37.07 of the Code of Criminal Procedure. After the State responded, appellant withdrew the notice objection. Later during Arias's testimony, appellant objected to a question asking if the witness had seen drugs at appellant's house. The objection here also dealt with the State's notice under section 3(g) of article 37.07. The court sustained the objection, and the witness did not respond to the question.
Arias was followed on the stand by four law enforcement officers, each of whom testified to the June 2016 occurrence. Other than routine objections such as to relevance, leading questions, hearsay inquiries and nonresponsive answers, none of which are discussed on appeal, the officers' testimony was free from objection.
Appellant contends the punishment evidence of his conduct during the June 2016 events should have been excluded for two reasons: the State's notice of its intent to introduce the evidence was insufficient, and the trial court failed "to make a finding whether [appellant] committed the extraneous offenses beyond a reasonable doubt before considering such offenses."
Article 37.07, § (3)(a)(1) provides:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail.TEX. CODE CRIM. PROC. ANN. art. 37.07, § (3)(a)(1) (emphasis added).
Appellant devotes much of his brief to a discussion of the harm he believes resulted from admission of the testimony describing his conduct in June 2016, but devotes little attention to the well-established requirement that such complaints brought on appeal must first be raised in the trial court. See TEX. R. APP. P. 33.1(a) (complaint made to trial court, and ruling, are prerequisite to complaints for appellate review); TEX. R. EVID. 103(a) (also requiring timely objection); Martinez v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002) (party complaining on appeal about trial court's admission, exclusion or suppression of evidence "must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question"); Chambers v. State, No. 01-10-00317-CR, 2011 Tex. App. LEXIS 5116, at * 2-3 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (applying rule to extraneous offense punishment evidence). It is equally well established that "the ground of error presented on appeal must comport with the objection raised at trial; otherwise nothing is presented for review." Chambers, 2011 Tex. App. LEXIS 5116, at * 2-3 (citations omitted).
Quoting 1 Stephen Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal, § 103.2, at 14 (2d ed. 1993).
As noted, we do not agree with appellant's reading of the record that the State's questioning of Arias and the law enforcement officers violated an earlier court ruling or any agreement that testimony of the June 2016 events would not be elicited. Even if the State had been doing so by its questioning of the witnesses, however, appellant may not complain of the admission of the testimony for the first time on appeal. Martinez, 91 S.W.3d at 336. And the only article 37.07(g) notice objection raised at trial during a witness's testimony occurred during Arias's time on the stand, and that objection was sustained.
With respect to his argument the court erred by admitting the extraneous-offense evidence without a finding he committed the offenses beyond a reasonable doubt, appellant acknowledges no objection was raised with the trial court. For that reason, this contention also presents nothing for our review. See Sanders v. State, 422 S.W.3d 809, 816 (Tex. App.—Fort Worth 2014, pet. ref'd) (appellant failed to object under the beyond-a-reasonable-doubt standard of article 37.07) (citing Chambers, 2011 Tex. App. LEXIS 5116, at *3-4 (evidentiary objection did not preserve error on appellate complaint the State did not prove extraneous offense beyond a reasonable doubt)).
Appellant cites Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2000), and other jury-charge error cases. They are inapposite.
Finding his appellate issue presents nothing for our review, we overrule appellant's issue and affirm the trial court's judgment.
James T. Campbell
Justice Do not publish.