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Kennedy v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 10, 2005
No. 05-04-00202-CR (Tex. App. Mar. 10, 2005)

Opinion

No. 05-04-00202-CR

Opinion Filed March 10, 2005. DO NOT PUBLISH. Tex.R.App.P.47.

On Appeal from the County Criminal Court, No. 9, Dallas County, Texas, Trial Court Cause No. MA02-61454-K. Affirm.

Before Justices MORRIS, WHITTINGTON, and O'NEILL.


MEMORANDUM OPINION


Appellant appeals his conviction for assault. After a jury found appellant guilty, the trial court assessed punishment at 365 days' confinement, probated for two years, and a $2,000 fine. In a single point of error, appellant contends the trial court erred in admitting evidence showing he was intoxicated at the time of the offense. For the following reasons, we affirm the trial court's judgment. At trial, the State presented evidence that on the evening of December 4, 2002, appellant drove his car through Shannon and Kerri Reid's backyard fence. Appellant, who appeared intoxicated, was initially apologetic, but became belligerent when the Reid's refused his offer to pay for the damage and insisted upon calling police. Appellant told the Reids he was leaving and hit Shannon Reid. The jury found appellant guilty of assault. In his sole point of error, appellant contends the trial court erred in admitting evidence of his intoxication. Prior to trial, appellant requested a "motion in limine regarding the pending DWI that's against [appellant], as well as, any reference to the DWI videotape that goes along with that." The trial court ruled the State would only be permitted to present evidence that appellant was arrested for investigation of DWI. The State sought clarification of the trial court's ruling, questioning whether it could present evidence that appellant appeared intoxicated at the time of the offense. The trial court responded the witnesses could testify about what they "saw, smelled, or heard" but the State could not present evidence of formal DWI charges. Appellant responded, "if you lead on that point, we will not object to that." The State subsequently presented evidence, without objection, that appellant appeared intoxicated at the time of the offense. On appeal, appellant asserts this evidence was inadmissible extraneous offense evidence. We will assume appellant's "motion in limine" was actually an objection to admissibility of evidence outside the presence of the jury. See, e.g., Geuder v. State, 115 S.W.3d 11, 15 (Tex.Crim.App. 2003). We nevertheless conclude appellant failed to preserve error regarding evidence of his intoxication. To preserve a complaint for appellate review, a defendant must make a timely request, objection, or motion that states the grounds for the ruling sought. See Tex.R.App.P. 33.1(a). Here, appellant did not complain of admission of evidence of his intoxication, but only to evidence of the formal charges against him. Thus, appellant waived any alleged error. See Tex.R.App.P. 331.(a); Mitchell v. State, 102 S.W.3d 772, 775 (Tex.App.-Austin 2003, pet. ref'd); see also Norris v. State, 902 S.W.2d 428, 439 (Tex.Crim.App. 1995). We resolve the sole issue against appellant. We affirm the trial court's judgment.


Summaries of

Kennedy v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 10, 2005
No. 05-04-00202-CR (Tex. App. Mar. 10, 2005)
Case details for

Kennedy v. State

Case Details

Full title:STEVEN MARTIN KENNEDY, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Mar 10, 2005

Citations

No. 05-04-00202-CR (Tex. App. Mar. 10, 2005)