Opinion
No. 05-10-00786-CR
05-16-2012
JIMMY DARRELL BASINGER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed May 16, 2012
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F10-33479-K
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Myers
Opinion By Justice Moseley
A jury convicted Jimmy Darrell Basinger of burglary of a habitation. Basinger pleaded true to two enhancement paragraphs; the trial court found those paragraphs true and assessed punishment at twenty-five years' confinement. In a single issue on appeal, Basinger argues the trial court erred by overruling his objection and refusing to instruct the jury to disregard evidence of prior extraneous offenses during the guilt/innocence phase of trial. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Basinger contends that during a pretrial hearing on his motion in limine, the State agreed to mute portions of the recording of his police interview that referred to extraneous offenses. Basinger asserts that at trial, the State was late in muting some portions of the recording and the jury heard prejudicial evidence.
The State contends that Basinger failed to preserve error on his complaint. See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a). The State also argues that any error was not harmful.
Basinger's pretrial objections to the recording were on two bases: (1) his confession to the offense was not voluntary because the detective made false promises to him; and (2) the detective's statements about what a co-defendant said were hearsay and violated Basinger's right to confrontation. Basinger does not raise either complaint on appeal. When the State offered the recording at trial, Basinger stated that other than the objections previously made, he had no objections. The trial court noted the previous objections, overruled them, and admitted the recording.
The recording was then played for the jury. After the recording was played and the jury was on a break, Basinger objected to the recording because the State had agreed not to play anything about defendant's prior history or drug cases, but "there was an issue as to the detective asking my client when are you going to stop." After some discussion, defense counsel stated his objection was on the basis of prejudice. The trial court overruled the objection, counsel's request for an instruction to disregard "those portions of the statement that came out," and his motion for a mistrial.
On appeal, Basinger complains of six portions of the recording that were played before the jury. Only two of those relate to the "when are you going to stop" portion specifically pointed out by trial counsel. We conclude Basinger failed to preserve error on the other portions because he did not specifically point out the objectionable portions to the trial court. See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (objections failed to preserve error where they did not specifically point out which portions of the audiotapes were objected to as inadmissible).
At one point in the recording, the detective is discussing whether Basinger is being honest about what happened and states "there is a time to quit." Later, after a long section of muted conversation, the detective tells Basinger he needs to stop whatever types of issues he is having and that the police are watching him.
We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. See State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Based on the record, we conclude the trial court did not abuse its discretion by overruling Basinger's objection. The statements were so vague, general, and ambiguous that the trial court could reasonably conclude they did not constitute evidence of other crimes. See Tex. R. Evid. 404(b). We will not reverse a trial court if the decision is within the zone of reasonable disagreement. See Mechler, 153 S.W.3d at 440.
Further, the prejudicial effect of the statements is so slight that the trial court did not abuse its discretion by overruling the objection of "prejudice." See Tex. R. Evid. 403; Mechler, 153 S.W.3d at 440. While the statements were not particularly probative of any issue in the case, nothing in the record suggests the statements had any tendency to confuse or mislead the jury from the main issues or to suggest a decision on an improper basis. The danger of unfair prejudice exists only when the evidence has the "potential to impress the jury in an irrational way." Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010) (quoting Mechler, 153 S.W.3d at 440-41), cert. denied, 131 S. Ct. 2966 (U.S. 2011). Considering all the relevant factors, we conclude the trial court did not abuse is discretion. See Mechler, 153 S.W.3d at 440 (listing factors for rule 403 analysis).
We overrule Basinger's sole issue on appeal. We affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
Do Not Publish
Tex. R. App. P. 47(b)
100786F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JIMMY DARRELL BASINGER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00786-CR
Appeal from the Crimina
District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F10- 33479-K).
Opinion delivered by Justice Moseley, Justices Lang and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 16, 2012.
JIM MOSELEY
JUSTICE