No. 14-02-01115-CR.
Memorandum Opinion filed February 17, 2004. Memorandum Opinion filed April 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 878,065. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
SUBSTITUTED MEMORANDUM OPINION
RICHARD H. EDELMAN, Justice.
The opinion issued in this case on February 17, 2004 is withdrawn, and the following opinion is issued in its place. Alex Adams appeals a conviction for capital murder on the ground that the trial court erred in permitting the State to present victim-impact testimony. We affirm.
The jury found appellant guilty of murdering Police Officer Vasquez but was unable to reach a verdict on the second special punishment issue, and the trial court sentenced him to life imprisonment.
Relevance
Appellant's first issue contends that the trial court erred during the guilt stage of trial by allowing Officer Duharte's testimony about what happened to him during his hospital stay because it was victim impact evidence that was not relevant. A trial court's decision to admit evidence is reviewed for abuse of discretion. Allen v. State, 108 S.W.3d 281, 284 (Tex.Crim. App. 2003), cert. denied, ___ S.Ct. ___ (2004). In this case, Duharte was present and wounded during the offense. Appellant acknowledges that the evidence concerning the wounds Duharte received and the medical treatment he received for those wounds could be same transaction contextual evidence and that the evidence about the medication he was taking was relevant to resolving the discrepancies between his trial testimony and a pre-trial statement he gave while he was recuperating from his wounds. However, when the State asked Duharte whether anything else happened to him during his hospital stay that was life threatening, defense counsel objected based on relevance, the prosecutor responded that it was res gestae of the offense, and the trial court overruled the objection. On appeal, appellant contends that the testimony Duharte then provided, regarding the trauma of being in the hospital without electricity during a flood and an embolism he developed in the hospital, was inadmissible victim impact evidence. Appellant did not refer to victim impact evidence in stating his relevance objection to this testimony at trial. To the extent his complaint on appeal based on victim impact evidence differs from a mere relevance objection, it does not comport with his objection at trial and presents nothing for our review. Conversely, to the extent his challenge based on victim impact evidence is the same as his relevance objection, appellant does not address at all, let alone provide authority or analysis to explain, why the evidence was not relevant as res gestae of the offense, as the prosecutor claimed. Under these circumstances, appellant's first issue affords no basis for relief and is overruled. Unfair Prejudice
Appellant's second issue challenges the admission of the same evidence as being unfairly prejudicial. However, an objection based on relevance is not sufficient to preserve a complaint based on unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997). Because appellant raised no objection at trial based on unfair prejudice, his second issue presents nothing for our review. Accordingly, it is overruled, and the judgment of the trial court is affirmed.