Opinion
No. 05-04-01230-CR
Opinion Filed November 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F04-00493-WH. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
Appellant appeals his conviction for aggravated assault. After appellant entered an open plea of guilty, the jury assessed punishment at twenty years' confinement. In two points of error, appellant contends (1) the trial court erred in failing to instruct the jury that it could only consider extraneous offense evidence if it concluded appellant committed the extraneous offenses beyond a reasonable doubt, and (2) the trial court erred in allowing complainant to give his opinion regarding appropriate punishment. For the following reasons, we affirm the trial court's judgment. Appellant pleaded guilty to aggravated assault after shooting his girlfriend's boss, Kenneth Chapital. At the plea hearing, the State presented evidence that appellant shot Chapital because of a dispute over his girlfriend's paycheck. Appellant claimed he shot Chapital after a scuffle when he confronted Chapital about harassing his girlfriend. The jury assessed punishment at twenty years' confinement. In his first point of error, appellant complains of charge error. At the open plea hearing, evidence of various extraneous offenses were presented before the jury. However, the trial court did not instruct the jury that it could only consider any extraneous offense evidence if it first concluded appellant committed the offense beyond a reasonable doubt. Amongst the evidence appellant asserts the jury may have improperly considered was evidence that (1) appellant told officers he had a gun the day he shot the victim because he carries a gun for protection, (2) appellant told a nurse at the hospital after the shooting that he was going "to get" Chapital, (3) in an unrelated case, the State had filed a motion to revoke probation alleging appellant had twice tested positive for marijuana, and (4) appellant illegally sold CDs. Appellant also complains the jury may have improperly considered evidence contained in medical records that he himself presented — specifically, that appellant used marijuana and told doctors that he has assaulted many people. In Huizar, the court of criminal appeals held that, at the punishment phase of a jury trial, a trial court is required to instruct the jury that it may only consider extraneous offenses if proven beyond a reasonable doubt. Huizar v. State, 12 S.W.3d 479, 483-84 (Tex.Crim.App. 2000). The instruction is required even if the defendant does not request the instruction. Id. Huizar applies to open pleas of guilty to a jury. See Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.). Thus, the trial court erred in failing to give a reasonable doubt instruction regarding extraneous offenses. However, because appellant did not object to the omission of the instruction, we reverse only if he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Specifically, we reverse only if the error was so harmful that appellant was denied a fair and impartial trial. Tear v. State, 74 S.W.3d 555, 562 (Tex.App.-Dallas 2002, pet. ref'd). In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information from the record. Id. The error in this case consists of the trial court's failure to give the reasonable doubt instruction regarding the extraneous offenses. However, appellant did not dispute that he committed most of the offenses. Indeed, as noted above, some of the offenses appellant complains of were contained in appellant's own exhibits. Moreover, appellant testified before the jury and admitted that he sold CDs door-to-door and carried a gun for his protection. The evidence appellant did dispute was whether he told a nurse at the hospital following the shooting that he was going to "get" Chapital. This evidence was not particularly inflammatory in light of the record as a whole. Moreover, in addition to the extraneous offenses appellant admitted, appellant's prior criminal record was also presented to the jury. Appellant's prior record shows appellant had been convicted of assaulting his girlfriend, unauthorized carrying of a handgun and possessing marijuana. Considering the record as a whole, we cannot conclude appellant suffered egregious harm from the trial court's failure to give the reasonable doubt instruction. Therefore, we overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred in allowing Chapital to give his opinion regarding the appropriate punishment. During Chapital's direct examination, the prosecutor asked Chapital some preliminary questions regarding his familiarity with the range of punishment and the law of probation. Appellant objected to Chapital "stating what he wants to occur as a punishment" and to "improper punishment evidence." The trial court overruled the objections. The prosecutor then asked, without objection, whether Chapital had an opinion about proper punishment. Chapital responded that he did. The prosecutor then asked, again without objection, what that opinion was. Chapital responded that appellant should be given the maximum sentence. Appellant did not object to Chapital's answers. On appeal, appellant contends the trial court erred in allowing Chapital to give his opinion. We conclude appellant waived any error in admission of Chapital's opinion. While appellant did object to the prosecutor's preliminary questions leading up to the complained-of testimony, appellant did not object to the prosecutor's question regarding whether Chapiital had an opinion regarding appellant's punishment or the subsequent question regarding the substance of that opinion. Nor did appellant object to Chapital's answers. To preserve error, a party must make a proper objection and get a ruling on that objection. Vale v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. Id. Because appellant failed to object when Chapital was ultimately asked about his opinion regarding a proper punishment, he cannot complain that the opinion was improperly admitted. We overrule appellant's second point of error. We affirm the trial court's judgment.
Appellant acknowledges no reasonable doubt instruction is required regarding his criminal record.