Marshal v. State

Full title: ANTOIN DENEIL MARSHAL, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Feb 28, 2008

No. 14-06-01133-CR (Tex. App. Feb. 28, 2008)

Opinion

No. 14-06-01133-CR

Opinion filed February 28, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 337th District Court Harris County, Texas, Trial Court Cause No. 1087328.

Panel consists of Justices YATES, GUZMAN, and SEARS.^_

_ Senior Justice Ross A. Sears sitting by assignment.

MEMORANDUM OPINION

EVA M. GUZMAN, Justice.

A jury convicted Antoin Deneil Marshal of capital murder, and he was automatically sentenced to life imprisonment in the Institutional Division, Texas Department of Criminal Justice. In three issues, he challenges the admission of certain testimonial evidence. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 25, 2005, off-duty Houston police officers Reuben DeLeon and Starlyn Martinez met by prior agreement at an apartment maintained for police officers at the Woodscape Apartment Complex in Houston. Before going out for the evening, DeLeon stored a shotgun in a bedroom closet, and Martinez placed both officers' duty weapons in the trunk of her car. Martinez and DeLeon then met several other police officers at a local venue and returned to the apartment at approximately 2:30 a.m. Within five minutes, someone knocked at the door, and DeLeon looked through the door's peephole. Martinez followed DeLeon, looked through the peephole, and observed a black male. She told DeLeon that she did not recognize the man, and DeLeon stated, "Well, let me see who it is. Let me see what they want." As Martinez walked to the back of the apartment, she heard DeLeon and the unknown person having a calm conversation. According to Martinez, she then heard the door shake, and before she could turn, she heard a gunshot. Martinez ran to the bedroom closet to retrieve the shotgun, and while she was removing the gun from its zippered case, she heard several more shots. According to Martinez, she heard approaching footsteps, and as she emerged from the closet she heard DeLeon say, "Starlyn, get the shotgun," before he fell to the floor. Officer DeLeon had been shot in the chest, and the bullet had passed through his heart and left lung. A second bullet lodged in his right arm. Despite Martinez's resuscitation efforts and the response of emergency personnel, DeLeon died at the scene. Outside the apartment, investigators recovered a black skull cap or "do-rag" and a watchguard from a man's wristwatch. This evidence was not disclosed to the media, nor were reporters informed of the location of DeLeon's injuries, the caliber of weapon used, or his final words to Martinez. At a live line-up, Martinez identified Brandon Zachary as the person she saw through the peephole on the night of the murder. Another resident of the apartment complex testified that he saw Zachary and appellant enter the apartment building immediately before the shots were fired and run away from the building immediately afterward. The resident had never seen appellant or Zachary before. Over appellant's objections, appellant's fellow inmate Michael Buchanan testified that appellant told him in detail of the roles that he and Zachary played in DeLeon's murder. According to Buchanan, appellant stated that he and Zachary witnessed a third person, alleged gang member Nickolaus Victoria, shoot a man. Victoria told appellant and Zachary that they also had to shoot someone to prove that Victoria could trust them. Buchanan testified that appellant told him Victoria chose DeLeon as the victim and waited in a car while appellant and Zachary committed the murder. Buchanan also attributed statements to appellant that indicated he had knowledge of the evidence recovered from the scene that had not been publicly disclosed. Appellant testified that he had known Zachary for years, and the pair had previously been arrested together. He stated that he had seen Zachary in Beaumont on the evening before the murder and left his jacket in Zachary's car; however, appellant denied that he was in Houston on the night of the murder. Finally, Sergeant Michael Scott of the Houston Police Department described appellant's prior statement that he and Zachary were fellow gang members and that he was with Zachary the entire night of the murder. According to Scott, appellant further stated that "Brandon did something stupid." The jury convicted appellant of capital murder, and he was sentenced to imprisonment for life. This appeal timely ensued.

II. ISSUES PRESENTED

Appellant presents three issues for review. In his first two issues, appellant challenges the trial court's admission of evidence of appellant's alleged gang affiliation and prior narcotics offenses. In his third issue, appellant contends that the prosecutor improperly introduced hearsay evidence that his alibi witnesses denied seeing him on the night of the murder. The State responds that appellant presents nothing for review because he failed to preserve error on any of these issues.

III. ANALYSIS

A. Standard of Review

We review the trial court's evidentiary rulings for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990) (en banc). We will not disturb the trial court's ruling if it is "within the zone of reasonable disagreement." Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App. 2007). Instead, we will uphold the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). To preserve error for appellate review, the complainant must make a timely, specific objection that the trial court refuses. TEX. R. EVID. 103; TEX. R. APP. P. 33.1(a); Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004) (en banc). Ordinarily, an objection is required every time inadmissible evidence is presented. Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). Error in allowing inadmissible evidence is cured when the same evidence is admitted without objection. Id.

B. Buchanan's Testimony

In his first two issues, appellant contends that the trial court erred in admitting testimony from witness Michael Buchanan. In several instances, defense counsel renewed prior objections; consequently, the grounds for these objections cannot be discerned unless the content of the prior objections is also related. We therefore present the relevant testimony, objections, and rulings together. Before Buchanan was called to testify, the following exchange occurred outside the jury's presence:

Defense: I'd like the record to reflect that we would object at this time to any testimony that he has based on what someone told him because at this point there's no connection to my defendant with the scene. This is jailhouse snitches who are coming after any custodial investigations, after any statements alleging that they know what my client did or how he did it, for example, the watchband and all that. None of this has been brought up yet, and we'd object that it's totally hearsay at this time. And also to relevance.

Court: Well, as to when you say somebody told him —

Defense: Well, he's going to argue that it's my client. All right? But at this time, there's nothing that's been connected to my client — not a watch, not a fingerprint, not an identification, not a statement or anything. So, now we have a snitch who's coming in, saying: Oh, your client told me. So, we're going to argue that this is a statement against penal interest. But it's still at this point irrelevant because nothing has connected my client to this crime.

(emphasis added). In sum, defense counsel asserted hearsay and relevancy objections to Buchanan's testimony on the ground that previously-admitted evidence did not connect appellant to the murder. The trial court overruled these objections.

Buchanan was then called to testify, and defense counsel objected as follows:

State: Do you know a person by the name of Antoin Marshal?

A: Yes, sir.

Defense: Your Honor, at this time we'd like to renew our objection as to being irrelevant at this time and the objection that we made earlier outside the presence of the jury and ask for a running objection.

Court: It will be overruled. Make your objection as —

Defense: May I have a running objection?

Court: No, sir. You won't get a running. You'll need to make it at the time.

. . .

A: I asked him [appellant] what was he doing down here in Houston.

State: And he said what?

A: Hustling.

State: What does "hustling" mean on the streets?

A: Making money, selling drugs, whatever.

State: Doing whatever?

A: Right.

State: And what else did y'all talk about?

A: He just told me that as far as the drugs, it was cheaper down here in Houston.

Defense: Your Honor, I renew my objection. I'd ask for a running objection so that every time he talks about some kind of an extraneous offense or not even related to this offense, that I won't have to stand up.

Court: Go ahead and make your objection for the record.

Defense: We object that this is irrelevant, that he has not been even connected to this crime, that this is a back door attempt to get a statement against penal interest without even first connecting my client to this crime. We would argue that it's — basically, now all of this is hearsay, let alone a statement against penal interest.

Court: It's overruled. Tailor your questions, though, to the focus of this inquiry.

State: Yes, sir.

. . .

State: Did he tell you about the crime itself that he was inside for?

A: Yes, sir.

State: What I'd like you to do is I'd like you to start at the beginning as to what he told you, the sequence of events.

Defense: We'd like to renew our objection at this time, Your Honor.

Court: Overruled.

. . .

State: And then what does he say happened?

A: He said that Nickolaus told them this is the one they had to do.

State: This is the one they had to do?

A: Right.

State: Meaning what?

A: They had to do — to shoot him like he shot the other ones.

Defense: Objection. This is not exculpatory as to this case.

Court: It's overruled.

(emphasis added). The rulings challenged in appellant's first and second issues are those quoted above. We turn now to the specific issues and arguments raised in connection with these quoted exchanges. 1. Evidence of Gang Affiliation Although appellant contends in his first issue that the State improperly elicited testimony from Buchanan concerning appellant's alleged gang membership, appellant has failed to identify the objectionable testimony in the record. Moreover, appellant does not even assert that defense counsel raised such an objection to Buchanan's testimony, nor have we found this to be the case.¹ Thus, appellant's first issue presents nothing for review. See TEX. R. APP. P. 33.1; Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App. 2007) (objection essential for preservation of error). We therefore overrule his first issue. 2. Evidence of Prior Narcotics Offenses Appellant next contends the trial court erred by allowing the State to introduce evidence of appellant's prior dealings in narcotics. In support of this position, appellant argues that the evidence (i) is improper character-conformity evidence, (ii) is not same transaction contextual evidence, and (iii) is unfairly prejudicial.

a. Character-Conformity Evidence

Appellant first argues the trial court erred in overruling his objections because such evidence has great potential to be misused as evidence of bad character and should be excluded unless admission is justified under Texas Rule of Evidence 404(b). See TEX. R. EVID. 404(b) (providing that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith"). The State responds that appellant failed to raise a timely and specific objection on this basis. A review of the record shows that, when Buchanan initially testified that appellant was in Houston selling drugs, defense counsel renewed his earlier objections that the testimony was irrelevant hearsay because appellant had not yet been connected to the crime. Defense counsel continued, "I'd ask for a running objection so that every time he talks about some kind of an extraneous offense or not even related to this offense, that I won't have to stand up." Although appellant now suggests that this objection was based on Texas Rule of Evidence 404(b), this basis was not apparent at trial. Instead, defense counsel renewed his original objections and indicated his intent to renew his prior hearsay and relevancy objections whenever evidence of extraneous offenses was introduced. Thus, the objection was ambiguous at best. The trial court then allowed defense counsel to clarify, and again, defense counsel restated the earlier hearsay and relevancy objections on the grounds that appellant had not yet been connected to the charged offense. Based on our review of the record, we conclude that the objections made at trial failed to preserve the distinct arguments made on appeal regarding improper admission of extraneous-offense evidence. See TEX. R. APP. P. 33.1; Vasquez v. State, 225 S.W.3d 541, 543 (Tex.Crim.App. 2007) (noting that a court of appeals may not overturn a trial court's decision on a legal theory not presented to the trial court); Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005) ("Whichever party complains on appeal about the trial judge's action must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule in question and its precise and proper application to the evidence in question.") (quoting 1 STEPHEN GOODE, ET AL., TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 103.2 (2d ed. 1993)).

b. Same Transaction Contextual Evidence

Appellant next contends that evidence of drug dealing does not qualify as "same transaction contextual evidence." But in our review of the record, we find no indication that the State offered the evidence on that basis, or that appellant objected on that ground. Thus, this argument presents nothing for review.

c. Unfair Prejudice

Finally, appellant asserts that evidence of drug dealing is unfairly prejudicial. As with appellant's first argument, the State responds that there was no timely and specific objection under Texas Rule of Evidence 403. See TEX. R. EVID. 403 (allowing the exclusion of relevant evidence if its probative value is substantially outweighed by, inter alia, the danger of unfair prejudice). We agree with the State that appellant did not raise this objection at trial; thus, appellant's third argument is waived. In sum, each of appellant's arguments asserted on appeal fails to comport with the objection raised at trial. An objection stating one legal basis may not be used to support a different legal theory on appeal because the trial judge did not have an opportunity to rule on that legal theory and the State did not have an opportunity to remove the objections or supply other testimony. Cook v. State, 858 S.W.2d 467, 474 (Tex.Crim.App. 1993) (en banc). For the foregoing reasons, we overrule appellant's second issue.

C. Improper Introduction of Hearsay Evidence

Appellant's third issue is based on an exchange that occurred during his cross-examination.² Appellant frames his third issue as follows: "The prosecutor improperly introduced hearsay evidence that the Appellant's acquaintances in Beaumont contradicted the Appellant's claim that he was with them in Beaumont at the time of the offense." This issue is without merit for several reasons. First, appellant does not identify an improper ruling by the trial court, but instead contends that the prosecutor's questions improperly introduced evidence. Questions, however, are not evidence. Kercho v. State, 948 S.W.2d 34, 37 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).³ Second, appellant failed to pursue his objection to an adverse ruling. See Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007) (holding that, to preserve error in prosecutorial argument, a defendant must pursue his objections to an adverse ruling). Appellant also failed to ask the trial court for a jury instruction directing the jury to disregard the prosecutor's statements. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000) (en banc) (stating that a prompt instruction to disregard ordinarily will cure error associated with an improper question and answer). Thus, appellant already has received all the relief he requested. And although appellant implies in his brief that this line of questioning constituted prosecutorial misconduct, no such complaint was raised in the trial court. Therefore, this argument is waived. See Shelling v. State, 52 S.W.3d 213, 222-23 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (holding that counsel waived appellate review of his contention of prosecutorial misconduct because he objected only on the grounds that prosecutor's questions were indefinite, open-ended, leading, multifarious, and assumed facts not in evidence, and further objected to "form of the question" and to counsel's testimony). In sum, appellant has failed to preserve his third issue for review. We therefore overrule appellant's last issue.

IV. CONCLUSION

Because the issues presented on appeal do not comport with timely, specific objections made in the trial court, appellant has failed to preserve the errors alleged. We therefore overrule each of appellant's three issues and affirm the judgment of the trial court.