Opinion
No. 06-03-00200-CR
Submitted: May 11, 2004.
Decided: June 14, 2004. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 30553-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Sherman Lynn Dixon pled guilty to burglary of a building — the Metropolitan Community Church in Longview, Texas — and true to felony enhancements, making the range of his possible sentence two to twenty years. The jury assessed Dixon's sentence at the maximum of twenty years and a fine of $5,000.00. On appeal, Dixon argues (1) his twenty-year sentence, when cumulated with a prior sentence, was disproportionate, and (2) the trial court erred in overruling an objection to the introduction of evidence of previous uncharged burglaries. We affirm. Stacked Sentence Not Preserved and Not Disproportionate Dixon asserts that his maximum twenty-year sentence, when cumulated, or stacked, with an existing sentence for a prior burglary conviction — which also served as one of the prior convictions used for enhancement purposes — made his sentence disproportionate to the crime. We disagree. Dixon made no objection, request, or motion to the trial court regarding his sentence or the cumulation of sentences. Therefore, he preserved no issue for our review. To preserve his complaint for appellate review, Dixon must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, if not apparent from the context. TEX. R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g). Even an objection, if it is nonspecific or fails to comport with the ground of error on appeal, raises nothing to review on appeal. Stevens v. State, 667 S.W.2d 534, 538 (Tex.Crim.App. 1984). Even had the issue been preserved for our review, it would fail. The cumulation of sentences does not constitute cruel and unusual punishment. Baird v. State, 455 S.W.2d 259 (Tex.Crim. App. 1970). No evidence in the record compares Dixon's sentence with the sentences imposed on defendants in Texas or other jurisdictions who committed similar offenses. See Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.-Texarkana 2002, pet. ref'd). We overrule Dixon's first point of error. No Reversible Error in Questioning About Prior Uncharged Offenses In his other point of error, Dixon asserts the trial court erred in allowing the State to ask Dixon whether he had been involved in a few other specific burglaries with which he had not been charged. Although some of the testimony is less than clear, we find no admission by Dixon to, and thus no evidence of, any such uncharged burglaries. We find only one objection of Dixon's counsel, relevant to this point of error. During the punishment phase of trial, the State posed questions to Dixon regarding various prior burglaries and asked whether he had any involvement in them. During that questioning, this exchange occurred:
[State]: Okay. How about, how about an antique house located on Sixth Street here in Longview, you know, lamps, chairs, dishes; have anything to do with that one?
[Dixon]: No, ma'am.
[State]: No? Okay. How about Square Deal Transmission located on Tyler Street in Longview?
[Defense counsel]: I'm going to object to this line of questioning.
[State]: Your Honor, he indicated that he wanted to cooperate. I'm just —
[Court]: I'm going to allow you to question him.Ultimately, Dixon denied having anything to do with any wrongdoing at Square Deal Transmission or with any other wrongdoing posed by the State. Prior bad acts or uncharged offenses can be admissible during the punishment phase of a trial. After a finding of guilt, or as in this case, a plea of guilty,
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2004). Therefore, if any prior bad acts or uncharged offenses by Dixon had been proven beyond a reasonable doubt by the State, the jury could have properly considered them in assessing punishment. When such evidence is tendered during the punishment phase, (1) the trial court is to act as gatekeeper to determine whether the evidence may be submitted to the jury for consideration, (2) the jury "is to determine whether or not the State has proved the extraneous offenses beyond a reasonable doubt," and (3) a request that the jury be so instructed should be honored. Mitchell v. State, 931 S.W.2d 950, 953-54 (Tex.Crim.App. 1996). No such instruction was requested, so none was required. To be sure, no actual evidence harmful to Dixon came from this question or from the line of questioning. Dixon denied involvement in any of the added offenses posed by the State during the punishment phase. But, of course, an impression must have been made in the minds of the jurors due to the time and energy spent by the State asking Dixon whether he committed or knew about various offenses. The clear import of the State's line of questioning and comments made in the jury's presence was that Dixon would be considered cooperative only if he admitted committing at least some of the offenses posed by the State's questions and that his repeated denials constituted a failure to cooperate, time after time, in the presence of the jury.
In Booth v. State, 90 Tex.Crim. 240, 234 S.W. 888, this court . . . said: "It is in exceedingly rare instances where this court would feel called upon to reverse a case solely because counsel may have propounded an improper question." We quote from Ard v. State, 101 Tex.Crim. 545, 276 S.W. 263, as follows: "The asking of a question whose affirmative answer might be hurtful to the accused would ordinarily present no error . . . unless the answer is given, and, if given and answered in the negative, . . . no error would be made to appear."Fritts v. State, 119 Tex.Crim. 412, 42 S.W.2d 609, 612 (1931).
Finally, appellant urges us to reverse because the state's attorney asked appellant two questions: one, if he had asked the officers on the way to the jail to get him a hamburger; the other, if he had shown any remorse for having blasted Frank Olsson six times.
The court sustained general objections to these questions and the witness gave no answer to either of them. Appellant's counsel did not ask the court for instructions to disregard. He obtained all the relief he sought, and cannot now complain. Washington v. State, Tex.Crim.App., 484 S.W.2d 721; Burks v. State, Tex.Crim.App., 432 S.W.2d 925.Foster v. State, 493 S.W.2d 812, 814 (Tex.Crim.App. 1973); see also Burks v. State, 876 S.W.2d 877, 902 (Tex.Crim.App. 1994). Here, Dixon made one general objection, only to the line of questioning, without specifying any basis, and made no request for an instruction or for a mistrial. Error was not preserved. In addition, sua sponte, the trial court orally gave a limiting instruction, and included it in the jury charge, directing the jury to consider testimony about extraneous offenses only if it found from the evidence beyond a reasonable doubt that extraneous offenses had been proven. Such an instruction is consistent with TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). A limiting instruction cures an error unless the error is such that it suggests the impossibility of withdrawing the erroneous impression from the minds of the jurors. Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App. 1996); Moore v. State, 882 S.W.2d 844 (Tex.Crim.App. 1994). We presume a jury follows the instructions given by the trial court. Ross v. State, No. 09-01-517-CR, 2002 Tex. App. LEXIS 8974 (Tex. App.-Beaumont Dec. 19, 2002) (per curiam) (not designated for publication), cert. denied, No. 03-49, 2003 U.S. LEXIS 7003 (Oct. 6, 2003). Because no reversible error has been shown, we overrule Dixon's second point of error. We affirm the judgment of the trial court.
Also, Texas Rule of Evidence 104(c) provides for preliminary hearings out of the jury's hearing when the "interests of justice so require." Tex. R. Evid. 104(c). This type of questioning certainly seems to require such a hearing.
We do not wish to be understood as approving the type of questioning by the State, the failures of defense counsel to preserve error, or the trial court's allowing the questioning to continue under the circumstances. Ultimately, during the punishment phase, the jury was allowed to hear that officers suspected Dixon in "close to a dozen" other burglaries and then to witness the State ask Dixon whether — and Dixon deny that — he had committed (a other burglaries of the same church, (b)burglary of a Greyhound bus terminal, (c)burglary of Uptown Thrifty Motors, (d) burglary of an antique house on sixth street, and (e) burglary of Square Deal Transmission. No other evidence was presented linking Dixon with any of these offenses or to any other investigation. Certainly, these offenses were not proven beyond a reasonable doubt. These must have been prejudicial and should not have been put before the jury.
A mistrial would not have been required, even if sought. Denying a mistrial is reviewed under an abuse-of-discretion standard; mistrial is appropriate for only "highly prejudicial and incurable errors," that is, only where an error is so prejudicial the "expenditure of further time and expense would be wasteful and futile"; and usually a prompt instruction to disregard will cure such an error. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003).