Opinion
No. 01-07-01017-CR
Opinion issued April 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.4.
On Appeal from the 248th District Court Harris County, Texas, Trial Court Cause No. 1105805.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
A jury convicted appellant, Enrique Santi Lopez, of murder.The jury also sentenced appellant to 70 years in prison. In one point of error, appellant argues that the trial court erred in admitting testimony of an extraneous bad act We affirm.
See Tex. Penal Code Ann. § 19.02 (b) (1) (Vernon 2003) ("A person commits anoffense if he intentionally and knowingly causes the death of an individual.").
Background
On February 24, 2007 at approximately 1:00 a.m., the complainant, Tammy Reed, entered appellant's residence. The complainant propositioned appellant for money in exchange for sexual acts. After the sexual act was completed, appellant gave the complainant 10 dollars. The complainant left the residence for approximately 30 minutes and returned. When the complainant returned, she and appellant had an argument. Appellant repeatedly struck the unarmed complainant in the neck and head with a machete and dragged her body to another part of the residence. At approximately 6:00 a.m., appellant went to the home of his employer, Florencio Lopez, and told Lopez that he had killed the complainant. Lopez contacted the Houston Police Department ("HPD"). HPD officers inspected appellant's residence and discovered the complainant's body on the floor and a blood-stained machete. After the police took him into custody, appellant gave an extensive statement to HPD homicide investigator D. Padilla and admitted that he killed the complainant with the machete. Appellant alleged that the complainant arrived with an unidentified man and entered his residence through a window without his consent. Appellant told Padilla that he had consensual sex with the complainant, after which she became aggressive and attacked him. Appellant stated that he killed the unarmed complainant with the machete in self-defense. At trial, HPD Officer E. Garza testified that after appellant had given his statement to Detective Padilla, he observed appellant repeatedly reach down into his pants to fondle his genitals and smell the same hand while smiling in gratification. Appellant objected to Garza's testimony as "characterization." The trial court sustained appellant's objection, and the State instructed Garza to testify only about what he directly observed. Garza continued his testimony and again explained how appellant fondled his genitals inside his pants, and smelled his hand after doing so. After Garza completed this portion of his testimony, appellant's counsel requested that the trial court convene a bench conference. When the parties approached the bench, appellant objected to the line of questioning as being an "extraneous bad act, which has no relevance, more prejudicial than probative." The trial court overruled this objection. Appellant presented no evidence to the jury. The jury convicted appellant of the complainant's murder on November 15, 2007.Admission of Extraneous Bad Act
In his sole point of error, appellant argues that the trial court erred in admitting testimony of an inadmissible extraneous bad act. The State argues that appellant failed to preserve his error by failing to make a timely objection. Waiver In order to preserve error, an objection must be timely and sufficiently specific to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See TEX. R. APP. P. 33.1; see also Luna v. State, 268 S.W.3d 594, 604 (Tex.Crim.App. 2008) ("If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely, and any claim of error is forfeited."); see also Berry v. State, 233 S.W.3d 847, 856-57 (Tex.Crim.App. 2007) (holding rule 404(b) objection not timely and error not preserved when defendant objected to extraneous bad act testimony after prosecution witness had already fully testified regarding extraneous bad act). The following exchange took place between the State and HPD Officer Garza:[State]: What, if anything, do you observe the defendant doing while he's sitting in the room after his interview?
[Garza]:I was sitting there watching him. He's sitting down in the chair. All of a sudden, he started grabbing himself — grabbing himself and after he grabbed himself, he would put his hand to his face and as far as a gratifying pleasure and smiling, like he knew what he had done. He was, I guess —
[Appellant]: Objection to characterization.
[Court]: Sustained.
[State]: Remember, you can only testify regarding what you observed.
[Garza]:It was more of a gratification, what he was doing.
[State]: Now, when you said "grabbed himself," the record needs to be clear.
[Garza]:His crotch area.
[State]: Was it on the outside or the inside of his pants?
[Garza]:It was on the inside of his pants.
[State]: Once he grabbed himself on the inside of his pants, where did his hand go to?
[State]:His hand went straight to his nose, facial area.
[Appellant]: Your honor, may we approach?
[Court]: Yes, sir.[At the bench, on the record]
[Appellant]: I'm going to object to this line of testifying as extraneous bad act, which has no relevance, more prejudicial than probative.
[Court]: Objection overruled.Appellant cites this portion of the record as the basis of his claim. Here, appellant did not object until after Garza fully testified regarding the extraneous bad act. Appellant failed to timely object to Garza's testimony. See TEX. R. APP. P. 33.1; see also Luna, 268 S.W.3d at 604; see also Berry, 233 S.W.3d at 856-57. Therefore, appellant has failed to preserve error. Because error was not preserved, we need not address whether testimony of the extraneous bad act was inadmissible under Texas Rules of Evidence 402, 403 and 404. See Tex. R. App. P. 47.1; see also Keehn v. State, 233 S.W.3d 348, 349 (Tex.Crim.App. 2007). We overrule appellant's sole point of error.