Harris v. State

Full title: GARY HARRIS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 16, 2003

Nos. 05-02-01021-CR, 05-02-01022-CR (Tex. App. Apr. 16, 2003)

Opinion

Nos. 05-02-01021-CR, 05-02-01022-CR.

Opinion Issued April 16, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-76132-LS, Trial Court Cause No. F01-76160-LS. Affirmed.

Before Justices JAMES, BRIDGES, and RICHTER.

MEMORANDUM OPINION

TOM JAMES, Justice

Gary Harris appeals his convictions for indecency with a child and aggravated sexual assault of a child younger than fourteen years of age. In cause number F01-76132-LS, appellant entered a plea of guilty before the jury; in cause number F01-76160-LS, appellant pleaded not guilty, and the jury found him guilty. In both cases, the jury sentenced appellant to confinement for life. Appellant brings one point of error in each case. In the indecency with a child case, appellant argues the court failed to comply with the code of criminal procedure by not securing a written jury trial waiver and failed to expressly consent to appellant's waiver of his right to trial by jury. In the aggravated sexual assault case, appellant argues the court erred in allowing evidence of an extraneous act to be presented. We affirm the trial court's judgment.

Cause F01-76132-LS: Jury Trial Waiver

In his sole point of error regarding cause F01-76132-LS, appellant argues the court failed to comply with article 1.13(a) of the code of criminal procedure, Jury Trial Waiver. See Tex. Code. Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2003). However, when a defendant enters a plea of guilty before a jury, the trial is considered to be a jury trial. See Williams v. State, 674 S.W.2d 315, 318 (Tex.Crim.App. 1984); Garcia v. State, 877 S.W.2d 809, 812 (Tex.App.-Corpus Christi 1994, pet. ref'd). After the jury was sworn, the State read both indictments. In the presence of the jury, appellant entered a plea of guilty to cause number F01-76132-LS and not guilty to cause number F01-76160-LS. The jury assessed punishment for both cases. Accordingly, appellant had a jury trial; he entered his plea of guilty during his trial by jury. See Williams, 674 S.W.2d at 318. He enjoyed his right to trial by jury; he did not waive that right. We conclude that without waiver, article 1.13(a) is inapplicable. We overrule appellant's sole point of error in cause number F01-76132-LS.

F01-76160-LS: Extraneous Offense Evidence

In his sole point of error in cause number F01-76160-LS, appellant contends the court erred by allowing evidence of an extraneous act to be presented to the jury. Under rule 404(b), the State must, after timely request by the accused, provide notice of its intent to use evidence of extraneous offenses. Tex. R. Evid. 404(b). However, appellant has failed to preserve his complained-of error for review. To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court. Tex. R. App. P. 33.1(a)(1). Furthermore, the record must show the trial court ruled on, or refused to rule on, the objection. Id. 33.1(a)(2). The following exchange occurred while the State was conducting its direct examination of the complainant: PROSECUTOR: Okay. The time when you're wanting to go to the store to meet Scooter and Gary says, "Only if you give me a kiss first," what room did that happen in the house? WITNESS: His room. PROSECUTOR: Okay. Did he have anything in that room lying out? WITNESS: Yes. PROSECUTOR: What did he have lying out? WITNESS: He had a — a — a silver — a silver-and-grey gun in his room on — PROSECUTOR: Where — WITNESS: — on his bed. PROSECUTOR: Where was the gun? WITNESS: On the bed. PROSECUTOR: Had you ever seen that gun before? WITNESS: No, that was my first time seeing it in there. PROSECUTOR: Okay. So, you called your mom — The testimony continued (pages 65 through 71 of the record) during which time the State introduced and admitted two exhibits without objection, and the prosecutor passed the witness. The court took a break, excusing the jury. Out of the jury's presence, the following occurred: APPELLANT: I've got one matter I want to take up, Judge. COURT: Okay. APPELLANT:

I can barely understand her, and this thing about a pistol, there's nothing in the extraneouses [sic] about a pistol, and he's a — obviously, a convicted felon. They don't know that now, but that's the first I've ever heard about this, and I think it's in violation of my Motion — my Motions, basically, my Motion in Limine. We were supposed to have a hearing before anything like that came out.

At the end of testimony that day, outside the presence of the jury, appellant requested the mention of a pistol be stricken from the record. The court denied the request. Appellant failed to object to the complained-of testimony in a timely manner. The prosecutor and the witness discussed the gun through four different questions without any objection by appellant, who did not object until after the witness was passed. Accordingly, appellant has failed to preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a)(1). We overrule appellant's sole point of error in cause number F01-76160-LS. We affirm the trial court's judgment.