Opinion
No. 05-10-00435-CR
02-14-2012
MARSHALL JERDELL KIRVEN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed February 14, 2012
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-01085-P
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Justice Richter
Marshall Jerdell Kirven, appellant, was charged by indictment with murder and entered a plea of not guilty. A jury convicted appellant of the lesser-included offense of manslaughter. Appellant pleaded true to an enhancement paragraph, and the jury assessed his punishment as life imprisonment. In one issue, appellant complains that the trial court erred in admitting evidence under Texas Code of Criminal Procedure article 38.36. We affirm the judgment of the trial court. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
On July 4, 2008, Ca'Andra Chrishay Donnelle (Shay) was fatally shot at the apartment complex where her stepfather, Shannon Jackson, lived. Jackson was shot in the arm during the altercation. At trial, the State pursued a murder prosecution against appellant under the theory of transferred intent, arguing that appellant may have been trying to shoot Jackson but in the process, shot and killed Shay, an innocent bystander.
Appellant contends the trial court erred by admitting evidence under article 38.36 of the Texas Code of Criminal Procedure because article 38.36 does not apply to the facts of this case. According to the record, the State presented an oral motion in limine as to a prior altercation between Jackson and appellant. Appellant's counsel argued that he should be allowed to question Jackson about any prior altercations and told the trial judge, “it goes to the relationship between the parties.” The trial judge conducted a hearing out of the presence of the jury and at the close of the hearing, the record reflects that the trial judge stated, “the State and the Defense have agreed that the parties can go into the prior relationship of the witness and the defendant in regards to prior altercations, either physical or verbal, because it establishes the relationship of the parties and the state of mind of the witness on the stand.” The State asked for a limiting instruction that such evidence was only being offered under article 38.36 to show the relationship between the intended victim and appellant, and was not being offered for all purposes. Appellant's counsel told the trial judge he did not object to the evidence and argued there was no reason to give a limiting instruction for a witness. The trial judge stated:
I'm going to allow the testimony under article 38.36, and I'm - because I believe that it goes to the previous relationship existing between the accused, and here it says the deceased, but in this situation, we have transferred intent.
The trial judge declined to give the limiting instruction requested by the State. She further informed the parties that she would rule on any hearsay objections at the time they were made. The trial proceeded and Jackson was questioned by the State and appellant's counsel about his relationship with appellant.
On appeal, appellant now complains that the trial court erred by admitting evidence under article 38.36 because article 38.36 does not apply to the facts of this case. In all prosecutions for murder, article 38.36 allows either party to:
offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2005). Appellant argues that because the deceased and appellant did not have a personal relationship, the trial court should not have admitted Jackson's testimony under article 38.36. The State responds that admission of prior relationship evidence was proper under article 38.36 under the theory of transferred intent, and no error was committed.
To preserve error, a defendant must present it to the trial court by timely request, motion, or objection, stating the specific grounds, and obtain a ruling. See Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009); see also Tex. R. App. P. 33.1(a). Because appellant failed to raise this objection at the hearing when the admissibility of Jackson's testimony under article 38.36 was discussed, and did not raise this objection at any other time during the trial, this issue has not been preserved for appellate review. See Davis, 313 S.W.3d at 347. We overrule appellant's issue.
For the foregoing reasons, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100435F.U05