Opinion
No. 05-02-00680-CR
Opinion Filed June 3, 2003 Do Not Publish
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-49554-QU. AFFIRM
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
Johnny Ray Adkins, Jr. appeals his conviction for aggravated robbery. After the jury found appellant guilty, it assessed punishment at 35 years' confinement and a $2000 fine. In three points of error, appellant complains the trial court erred by admitting certain evidence during punishment and by denying his motion for mistrial. The facts are well-known to the parties; thus, we do not recite them in detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the trial court erred by allowing the State to improperly question appellant's mother about certain extraneous offenses because she did not have personal knowledge of the offenses. The record shows that after appellant's mother testified her son was a "good kid," the prosecutor questioned her about certain extraneous offenses. Although appellant's mother denied aspects of the offenses as alleged by the prosecutor, she admitted that her son was arrested for the aggravated sexual assault of her daughter and that he was placed on probation for that offense. Appellant's mother also took her daughter to the doctor and called the police, thus she had knowledge of the offense. Moreover, appellant's mother's testimony implies she was the outcry witness. Under these circumstances, we cannot conclude the trial court abused its discretion by allowing the complained-of testimony. To the extent appellant complains about his mother's lack of personal knowledge about the sexual assault of a girl in appellant's high school bathroom, appellant's hearsay objection was not timely. Appellant did not object to hearsay until after the prosecutor had elicited testimony showing appellant was accused of sexual assault after he went into the bathroom with a girl and penetrated her vagina with his penis. To be considered timely, an objection must be made at the first opportunity or as soon as the basis of the objection becomes apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). Unless the defendant can show a legitimate reason to justify the delay, error is waived if an objection is made after the prosecutor has elicited the improper testimony. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). Further, his objection was specifically to the question about whether the girl told appellant "no and to get out." On appeal, appellant's complaint is that all of the testimony regarding the offense is inadmissible because appellant's mother lacked personal knowledge of the offense. Thus, appellant's objection at trial does not comport with his objection on appeal. See Rezac v. State, 782 S.W.2d 869, 871 (Tex Crim. App. 1990). We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred by denying his motion for mistrial. After appellant objected to hearsay with regard to what the girl in the bathroom said to appellant, the trial court sustained appellant's objection, instructed the jury to disregard, and then overruled appellant's motion for mistrial. Ordinarily, a prompt instruction to disregard will cure the prejudicial effect associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). This is so "except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds." Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). To determine whether this narrow exception applies, we must examine "the peculiar facts and circumstances of each case." See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999); Hernandez v. State, 805 S.W.2d 409, 414 (Tex.Crim.App. 1990). We have reviewed the record, and after doing so, we conclude this is not such a case. Rather, we conclude the trial court's prompt instruction to disregard was sufficient to cure any error from the question about what the girl said to appellant. We overrule appellant's second point of error. In his third point of error, appellant contends the trial court erred by admitting hearsay evidence over his "proper objections." However, at trial, appellant objected because (1) the proper predicate had not been met to admit photographs, (2) the questioning was improper because the photographs had not been published to the jury, and (3) that the prosecutor was "testifying from those documents that are not in evidence." Because these objections do not comport with appellant's complaint on appeal, appellant has failed to preserve error for our review. See Rezac, 782 S.W.2d at 871. Moreover, even assuming appellant's third objection, that the prosecutor was testifying from documents not in evidence, could be considered a hearsay objection, it was not timely. Appellant did not lodge this objection until after the prosecutor had asked four questions about the photographs. See Dinkins, 894 S.W.2d at 355. We overrule appellant's third point of error. Accordingly, we affirm the trial court's judgment.
Appellant's objection was "to hearsay in regards to what anyone else may have said."