Opinion
NO. 09-11-00426-CR
07-11-2012
DAVID DARRYL BROWN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 09-06-05992-CR
MEMORANDUM OPINION
Appellant, David Darryl Brown, appeals a conviction for unauthorized use of a motor vehicle. The indictment included allegations of six prior felony convictions for the purpose of enhancement of punishment. After a jury found Brown guilty of the charged offense, the trial court sentenced him to fifteen years of confinement. In two issues on appeal, Brown argues that the trial court erred in admitting evidence of extraneous offenses. See Tex. R. Evid. 404(b). We affirm the judgment of the trial court.
In his first issue, Brown argues that "[t]he trial court allowed testimony over objection from counsel as to the appellant possessing and then tampering with evidence by destroying or hiding crack[.]" We disagree with Brown's characterization of the trial testimony. Though the arresting officer testified that Brown was observed in a dump truck leaving a known crack house, she testified unequivocally that no drugs were found in the vehicle. The officer acknowledged that it is pretty easy to get rid of crack and that crack rocks are generally small enough that it may be possible to successfully conceal crack so that it is not located during a vehicle search. However, the officer did not testify that she believed or had reason to believe that Brown had purchased crack or concealed crack in the vehicle. Even were we to view the complained of testimony as evidence of an extraneous offense or prior bad act, trial counsel failed to preserve this issue for review.
Trial counsel objected to the challenged testimony on the bases that it called for speculation and was not relevant. The record does not reflect that counsel made any objection based on Rule 404(b). See Tex. R. Evid. 404(b). Therefore, the trial court was not put on notice of the complaint that the evidence was improper extraneous-offense evidence. See Tex. R. App. P. 33.1. A relevancy objection does not preserve error under Rule 404 with respect to extraneous-offense evidence. See Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999). Likewise, an objection that evidence is speculative does not preserve a complaint that evidence was admitted in violation of Rule 404(b). See Phelps v. State, 999 S.W.2d 512, 519 (Tex. App.—Eastland 1999, pet. ref'd). The complaint raised on appeal must comport with the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). We conclude Brown failed to preserve issue one for review. See Tex. R. App. P. 33.1. We overrule issue one.
In issue two, Brown argues that the trial court erred in admitting extraneous-offense evidence "when the State implied that [Brown] was soliciting a known prostitute at the time that the officer[]s first noticed the dump truck." Defense counsel did not object to the complained of testimony at trial. On cross-examination defense counsel further questioned the testifying officer about Brown's interaction with the prostitute. We conclude Brown failed to preserve issue two for review. See id. We overrule issue two. Having overruled both Brown's issues, we affirm the judgment of the trial court.
AFFIRMED.
__________________
CHARLES KREGER
Justice
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.