Opinion
No. 14-05-00133-CR
Memorandum Opinion filed April 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from 208th District Court, Harris County, Texas, Trial Court Cause No. 957,543. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.
MEMORANDUM OPINION
A jury convicted appellant Jonathan David Chartian of the offense of robbery and sentenced him to twenty-five years incarceration in the Texas Department of Criminal Justice — Institutional Division. In two issues, appellant contends the trial court erred when it (1) admitted statements made by a police officer in a videotaped interview with appellant; and (2) overruled appellant's objection to statements made by the prosecutor in the State's closing argument. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
In May 2003, seventy-one-year-old Graciella Campos lived in northeast Houston with her daughter and three young grandchildren. Campos ran a business out of her home in which she sold soda, hamburgers, hot dogs, and candy to residents of the neighborhood. Appellant, who was known in the neighborhood as "John Boy," was a frequent customer. On May 30, 2003, appellant and two young males entered Campos's home and ordered some food. Campos asked them to return later. Appellant then asked to use Campos's bathroom and Campos gave him permission to do so. At that time, one of the males began ransacking Campos's home in search of money. The other male grabbed Campos, forced a towel into her mouth, and wrestled her to the ground. Before appellant and the two males left her home, Campos gave them a bag containing $2,500.00. Campos immediately told a neighbor about the events and the neighbor called police. Officer Jaime Escalante of the Houston Police Department ("HPD") responded to the call and met with Campos. She told Escalante that she had recognized one of her assailants but did not remember his name. Campos also stated that both a gun and a knife had been used in the attack. Because Campos was upset to the point that Escalante "couldn't really interview her," Escalante prepared a report without presenting charges to the district attorney. Approximately two weeks later, Officer Steve Guerra was assigned to investigate the robbery. Guerra met with Campos at her home on June 19, 2003 and at that time, Campos named "John Boy" as one of her attackers. Two days later, Guerra met with Campos again and she provided him with pictures of appellant and other males that had been given to her by a neighbor. Guerra prepared a photospread that included appellant's picture, and Campos identified appellant in the photospread as "John Boy." On August 16, 2003, appellant went to HPD headquarters to meet with Guerra. In a videotaped interview, appellant waived his rights and agreed to answer Guerra's questions about the robbery. Following the interview, appellant was arrested and charged with aggravated robbery. At trial, the State offered an excerpt of the videotaped interview into evidence over appellant's objection that some of Guerra's statements were evidence of the extraneous offense of retaliation. The excerpt showed Guerra reading appellant his rights and also showed appellant describing events that took place before, during, and after the robbery. During closing arguments, the State suggested that Campos was courageous to testify against appellant despite her knowledge of the potential for retaliation. Appellant objected to the prosecutor's statements on the grounds that there was no evidence of retaliation. The trial court overruled the objection. The jury found appellant guilty of the lesser-included offense of robbery. After appellant pleaded "true" to a prior conviction for burglary of a habitation, the jury sentenced him to twenty-five years incarceration.II. ISSUES PRESENTED
In his first issue, appellant contends the trial court erred by admitting, over appellant's objection, a portion of Guerra's videotaped statements because there is no evidence of an intent to commit an extraneous offense. In his second issue, appellant argues the trial court erred by overruling his objection to the State's comments about Campos's fear of retaliation during its closing argument.III. DISCUSSION
A. Do Guerra's Statements Constitute Evidence of an Extraneous Offense? In his videotaped interview with Guerra, appellant claimed the robbery was influenced — but not committed — by three individuals, two of whom he identified as "Rock" and "Toby." At the beginning of the interview, appellant identified "Rock" in a picture that Campos had previously provided Guerra. Appellant claimed the picture was provided to the police by a woman named "Debra Jean." According to appellant, Rock, Toby, and a third individual approached him after the robbery and demanded a share of the money obtained. Appellant also stated that the three men attempted to prevent the neighborhood's residents from informing the police of their role in the robbery. Near the end of the interview, when asked by Guerra why he had not identified the other involved parties, Appellant responded:Rock tells me to f____k this lady off, man. Straight up, serious. Debra Jean, the one that took the pictures. You know what I'm saying? And you don't think that scared me, man? Because if they do anything to this woman — or think about doing something to this woman — they won't do it to me?Guerra responded by informing appellant that the pictures were obtained by a search warrant, against "Debra Jean's" wishes:
GUERRA: These pictures? I had to get a subpoena from her and a search warrant, because . . .
APPELLANT: Because they were trying to take the pictures.
GUERRA: Yeah, she took pictures.
APPELLANT: Toby was trying to take the pictures from her.
GUERRA: Yeah, she took those pictures. She didn't want to give them to me.
APPELLANT: Yeah, they were threatening her, man.
GUERRA: No no no no. I'm telling you. She didn't want to give me the pictures.
APPELLANT: When y'all was [sic] called out there that time, after she took the pictures, that Friday, she took pictures of us —
GUERRA: She didn't call the police.
APPELLANT: The police came out there —
GUERRA: You know why? Because the complainant — the victims — they saw you. That's why the police went out there. I've already been looking for you. I've been looking for you. The police weren't called there because a lady took any pictures. I don't know when she took these pictures. And the reason I found out about these pictures is because, somebody there overheard that lady, the neighbor talking about some pictures or something, and you know, something about your name came up. So I had enough information to get a search warrant, and I demanded these pictures from her. If she wouldn't have gave me — she didn't want to give them to me. If she hadn't given them to me, I'd have had to put her in jail. You know what I'm saying? So, do you understand what I'm saying?
APPELLANT: Yes, sir.
GUERRA: She didn't call the police. And she didn't give me these pictures. I had to get a warrant, and I had to get them from her. You understand what I'm saying? So if anybody should be mad at anybody, they [sic] should be mad at me. Because I'm doing my job.
APPELLANT: Yeah, that's what I told them. I said, y'all don't trust this woman, man, you know what I'm saying?
GUERRA: That woman had nothing to do with nothing.
APPELLANT: I couldn't find out what was going on, because —
GUERRA: She wouldn't tell me nothing. She wouldn't tell me — I asked her, `Who are these people?" and she wouldn't even tell me. She wouldn't tell me nothing. She's probably friends with y'all or something, I don't know.
APPELLANT: She — I never had no problem with her, you know what I'm saying?
GUERRA: She wouldn't tell me nothing.(emphasis added). The video concluded shortly thereafter. As noted, before the videotape was published to jury, appellant objected to several portions of the videotape. Regarding the excerpt above, appellant objected on the grounds that Guerra's statements constitute evidence of the extraneous offense of retaliation. He also asked the trial court to issue a limiting instruction informing the jury that Guerra's statements were not the statements of appellant. Before the videotape was published, the trial court gave the following limiting instruction to the jury: "The statements made by the officer are not evidence of what [appellant] says." Appellant's trial counsel renewed his objection, which was once again overruled by the trial court.
a. Standard of Review
We review a trial court's ruling regarding the admission of extraneous offenses for an abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App. 2005). It is the role of the trial court to determine whether the evidence tends to serve some purpose other than character conformity to make the existence of a fact or consequence more or less probable than it would be without the evidence. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (en banc). As long as the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion and the ruling will be upheld. Prible, 175 S.W.3d at 731.b. Analysis
In his appellate brief, appellant argues, "the trial court erred by overruling appellant's objection to that portion of a videotaped interview with appellant in which an officer warned appellant against committing an extraneous offense, such as retaliation, though there was no evidence of such an intent." An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996). Evidence of such acts is not restricted to acts by the defendant. Castaldo v. State, 78 S.W.3d 345, 349 (Tex.Crim.App. 2002) (citing EDWARD J. IMWINKELREID, UNCHARGED MISCONDUCT EVIDENCE § 2:05 (2001)). In the above-cited excerpt, appellant describes several acts of misconduct on the part of Rock and Toby. However, appellant did not object to any of these statements; his objection was directed only at Guerra's statements. We conclude, as did the trial court, that Guerra's statements on the videotape do not constitute evidence of an extraneous offense because his comments do not describe any acts of misconduct either by appellant or by third parties. Therefore, we hold the trial court did not abuse its discretion by admitting Guerra's statements. In support of his first appellate issue, appellant also argues that Guerra's statements should not have been admitted because they were prejudicial. However, at trial, appellant objected to Guerra's statements only on the basis that the statements were evidence of an extraneous offense. After the trial court overruled the objection, appellant did not contest the admission of the evidence under any additional rule of evidence or legal theory. An argument raised on appeal must correspond with an objection made at trial. Nelson v. State, 864 S.W.2d 496, 499 (Tex.Crim.App. 1993) (en banc) (holding appellant waived his appellate argument complaining of admission of unduly prejudicial evidence when only an objection to admission of an extraneous offense was raised at trial). Because the argument appellant raises on appeal was not presented to the trial court, it has been waived for our review. For these reasons, appellant's first issue is overruled.B. Was the State's Closing Argument Improper?
In light of the trial court's admission of the videotape excerpt discussed above, appellant argues the trial court erred in overruling appellant's objection to the following portion of the State's closing argument:THE STATE: Do you think that you would ever forget feeling . . . a gun in your cheek? . . . Will you ever forget that? Why would you make that up if it didn't happen? Why? What would be the motive for that? [Campos] has told that same story over and over and over again, and she knew [appellant]. There is not any kind of confusion. She knew who he was. He knew who she was, but you know what? He made a mistake because the 72-years-old that she is, she is a tough grandma because she had the guts to call the police and tell them knowing potentially there could be some kind of retaliation for what they did.
APPELLANT'S TRIAL COUNSEL: Objection, Your Honor. There was no evidence that there was ever any retaliation, and that is improper, and I will ask for that to be stricken.
THE COURT: That is overruled.Appellant argues the State's jury argument constitutes reversible error because it is "without foundation in the record." He also claims the prejudice was "enhanced" by the trial court's ruling on his objection to Guerra's statements of an extraneous offense. The State argues that its closing argument was a proper summation of the evidence.