Opinion
No. 14-10-00082-CR
Opinion filed April 12, 2011. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 1134755.
Panel consists of Chief Justice HEDGES and Justices FROST and CHRISTOPHER.
MEMORANDUM OPINION
Appellant Ariel Escalante pleaded guilty to one count of aggravated robbery. He requested that the trial court sentence him to community supervision, but upon hearing evidence of an extraneous offense, the trial court assessed punishment at five years' imprisonment instead. In his sole issue on appeal, appellant contends the evidence is insufficient to show beyond a reasonable doubt that he committed the extraneous offense. We affirm. Appellant was charged with aggravated robbery on September 25, 2007. He pleaded guilty to the offense without an agreed recommendation as to punishment. The trial court ordered the preparation of a presentence investigation report ("PSI"), which was completed on May 20, 2008. On November 28, 2009, while on bond, appellant was arrested for the burglary of a motor vehicle. His sentencing hearing for the robbery offense was conducted two weeks later, but the PSI was never updated to reflect appellant's recent arrest. During the hearing, defense counsel questioned appellant on the new charge. Appellant described his participation in the incident as follows:
Appellant: Well, me and my — me and one of my friends went to go drop off one of his cousins at the club.
Counsel: Uh-huh (affirmative.)
Appellant: And we seen a truck that was like — door was all open. So we just — we thought it was just easy and checking it out. So, I got off; and I looked at it. And by the time I had already turned back around, the cop had arrested — he told me what was I doing.
Counsel: Uh-huh (affirmative.)
Appellant: And since I was already in trouble, I had took off, took off from him. And he got me, and they arrested me.
Counsel: Why did you do that?
Appellant: Just — I don't know what I was thinking, being stupid.The State never called any witnesses regarding the extraneous offense. In his sole question on the burglary, the prosecutor merely asked how long appellant had been on bond before his recent arrest. During the rendition, the trial court commented on the seriousness of "picking up a new offense," then rejected appellant's request for community supervision and sentenced him to five years' imprisonment. On appeal, appellant contends the trial court erred in considering evidence of the extraneous offense. Appellant argues that his testimony established only that he was arrested for burglary, not that he committed the act beyond a reasonable doubt. Appellant has failed to preserve error. Before a party may present a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. Evidence of the extraneous offense was introduced by appellant, not the State. Without a specific request or objection to the contrary, the trial court could not have known that appellant did not want this evidence to be considered during sentencing. We hold that appellant has waived this issue by raising it for the first time on appeal. Even if we were to assume that this issue was properly preserved, we would still hold that the trial court did not commit reversible error. Under Article 37.07 of the Texas Code of Criminal Procedure, the sentencing judge may consider "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." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West 2010). Evidence may be considered under Article 37.07 regardless of whether the conduct is, or can be characterized as, an offense under the Texas Penal Code. Haley v. State, 173 S.W.3d 510, 514-15 (Tex. Crim. App. 2005). The statutory burden of proof requires only that the extraneous offense or bad act be attributable to the defendant, not that evidence of the elements of a crime be sufficient to establish a finding of guilt. Id. at 515. Appellant insists the evidence did not show his actions to be either criminal or "bad," as envisioned by the statute. We disagree. Appellant admitted to "checking out" the vehicle of another and "taking off" after being questioned by a police officer. Even if his testimony were insufficient to prove beyond a reasonable doubt that he was involved in the burglary of a vehicle, the evidence clearly established that he attempted to flee from the police. Because flight is "an extraneous crime or bad act" within the meaning of Article 37.07, we conclude that the trial court did not err in considering conduct extraneous to appellant's charge for robbery. See Tex. Penal Code Ann. § 38.04(a) ("A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him."); Fentis v. State, 582 S.W.2d 779, 780-81 (Tex. Crim. App. 1976) (holding that evidence of flight is admissible to show a relevant circumstance bearing on the defendant's guilt). We overrule appellant's sole issue and affirm the judgment of the trial court.