No. 04-04-00592-CR
Delivered and Filed: May 4, 2005. DO NOT PUBLISH.
Appeal from the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-2410, Honorable Sid L. Harle, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
Jose Armando Morales appeals his conviction for aggravated robbery with a deadly weapon, and the resulting sentence of life imprisonment as a repeat offender. We affirm the trial court's judgment.
Background
On January 9, 2003, at approximately 2:15 a.m., a Yellow taxi cab driver, Jose Cervantes, picked up Morales at North Zarzamora and Poplar. Morales asked Cervantes to drive him to the Maverick Apartments in downtown San Antonio. On the way, Morales asked Cervantes how long he had been working that night. Becoming concerned, Cervantes lied and said that Morales was his first fare. After the cab arrived at the apartments, Cervantes was writing the fare information on his clipboard when Morales began stabbing Cervantes in the neck with a knife. Cervantes was able to escape from the cab, and fled on foot to the nearby Nix Hospital leaving a trail of blood. Cervantes testified that as he was fleeing, he heard the cab being driven away. Using the cab's GPS tracking device, the police recovered the taxi cab in a field east of downtown. Morales was discovered hiding in a nearby shed. Morales had a receipt for one of Cervantes' previous fares on his person when he was arrested. Cervantes positively identified Morales as his attacker at the hospital that morning. Morales was indicted for aggravated robbery with a deadly weapon, which was enhanced due to his repeat offender status. The case was tried to a jury in June 2004, resulting in Morales's conviction for aggravated robbery with a deadly weapon. The court assessed punishment at life in prison. This appeal followed. Analysis
Evidence of Invocation of Miranda Rights In his first issue, Morales contends that the trial court erred in admitting a detective's testimony that Morales chose not to give a statement and invoked his right to counsel after the Miranda warning was given. Morales argues the testimony infringed on his presumption of innocence and violated his right against self-incrimination and his right to counsel under the Fifth and Sixth Amendments to the United States Constitution. See U.S. Const. amend. V, VI. During trial, Detective Spiess testified without objection that after Cervantes identified Morales at the hospital, the officers took Morales to the police station where "[h]e was read his rights . . . and asked if he wished to give a statement as to his involvement in this case and he requested an attorney." It is well established that a defendant's post- Miranda silence and invocation of his right to counsel may not be used against him as evidence of guilt. Doyle v. Ohio, 426 U.S. 610, 617-19 (1976); Griffith v. State, 55 S.W.3d 598, 605-06 (Tex.Crim.App. 2001); Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991); see also Tex. Code Crim. Proc. Ann. art. 38.38 (Vernon Supp. 2004-05) (providing that "[e]vidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense"). We must determine, however, whether Morales preserved any such error for review. The State contends that Morales waived any error by failing to object at the time the evidence was admitted. See Tex.R.App.P. 33.1(a) (requiring a specific objection and a ruling from the trial judge to preserve error for appellate purposes). We agree. Errors in the admission or exclusion of evidence must generally be preserved by a timely objection and ruling in the trial court, or they are forfeited on appeal. Tex. R. Evid. 103; Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). Here, the detective's testimony implicated Morales's constitutional rights to remain silent and to speak to an attorney. Even constitutional guarantees, however, may be forfeited by the failure to raise a timely, specific objection. See Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App. 2002). Morales concedes that no trial objection was made to the detective's testimony, but argues the error is fundamental error which may be raised for the first time on appeal. See Tex. R. Evid. 103(d) (providing that an appellate court may take notice of fundamental errors affecting substantial rights although the errors were not preserved at trial). Fundamental errors are violations of rights which must be affirmatively waived, or denials of absolute systemic requirements — both of which need not be preserved by objection. Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App. 2004); Saldano, 70 S.W.3d at 888. A defendant's right to have the State refrain from introducing certain evidence is neither an absolute systemic requirement, nor a right that must be affirmatively waived. Saldano, 70 S.W.3d at 889; see also Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997). The court of criminal appeals has consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence, even when the error concerns a constitutional right of the defendant. See Saldano, 70 S.W.3d at 890. Specifically, the improper admission of evidence of a defendant's post- Miranda silence and invocation of the right to counsel does not constitute "fundamental error" under Rule 103(d), and is forfeited by the failure to object. See Rezac v. State, 782 S.W.2d 869, 870-71 (Tex.Crim.App. 1990) (holding any error in admission of videotape showing defendant's invocation of right to counsel was not preserved by specific objection, and declining to consider it as fundamental error); see also Martinez v. State, No. 05-03-01107-CR, 2004 WL 901895, at *3 (Tex.App.-Dallas Apr. 28, 2004, no pet.) (not designated for publication); Cacy v. State, 901 S.W.2d 691, 699 (Tex.App.-El Paso 1995, pet. ref'd); Quesada v. State, 751 S.W.2d 309, 311 (Tex.App.-San Antonio 1988, no pet.). Because Morales did not object to the detective's testimony regarding his post- Miranda silence and request for an attorney, we hold he has failed to preserve his complaint for review. See Saldano, 70 S.W.3d at 890; Mendez, 138 S.W.3d at 342 ("[e]xcept for complaints involving systemic (or absolute) requirements, or rights that are waivable only, . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)"). We overrule Morales's first issue. Admission of Extraneous Offense Evidence In his second issue, Morales complains that the trial court erred in admitting the testimony of his girlfriend, Jessica Canales, that after she bailed him out he threatened to kill her by slicing her throat, stating that "he had done it once and that he would do it again." Morales contends on appeal that the testimony was inadmissible extraneous offense evidence because the threat was not sufficiently similar to the charged offense to constitute a "signature" of the defendant for purposes of proving identity. The State replies that the testimony was admissible as an admission by Morales, and that any error was not preserved and was harmless. We review a trial court's ruling admitting or excluding evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). A trial court does not abuse its discretion as long as its ruling is within the zone of reasonable disagreement. Id. at 102; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991). The erroneous admission or exclusion of evidence is not reversible error unless it affects a substantial right of the defendant. Tex.R.App.P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Johnson, 43 S.W.3d at 4; King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). If the error had no influence, or only slight influence, on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). At trial, Morales cited Rules 402 and 403 in objecting that the threatening statement was "not relevant" and was "unfairly prejudicial." See Tex. R. Evid. 402, 403. Morales did not object that the threat was inadmissible under Rule 404(b) as dissimilar or "non-signature" extraneous offense evidence. See Tex. R. Evid. 404(b). The State asserted the evidence was relevant on the issue of identity to show that Morales was "the one who committed this offense, the slitting of the cab driver's throat." The trial court overruled the objection, stating that he had conducted the Rule 403 balancing test and found the evidence more probative than prejudicial. The court included a limiting instruction in the jury charge stating that the extraneous offense evidence was only to be considered as to the issues of identity and knowledge of the defendant. We first address the State's contention that Morales's argument on appeal does not match his trial objection, and thus presents nothing for review. For an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for the objection. Tex.R.App.P. 33.1(a), Tex. R. Evid. 103(a); Rezac, 782 S.W.2d at 870. An objection stating one legal basis may not be used to support a different legal theory on appeal. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977). Where a complaint on appeal does not comport with an objection made at trial, the error is not preserved on the appellate complaint. See Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996). Morales presents a different theory for exclusion of the evidence on appeal than was raised in the trial court. On appeal, Morales argues that his threat to slice his girlfriend's throat was not sufficiently similar to the aggravated robbery to constitute his "signature" for purposes of proving identity; Morales also argues that identity was not a disputed issue because the cab driver had positively identified him as the attacker. At trial, Morales lodged an imprecise objection that the evidence was "not relevant" and was "unfairly prejudicial," arguing only that the threatening statement "doesn't necessarily pertain to this case." Morales never articulated the purported dissimilarity between the threat and the charged offense as the basis for his objection on relevance. In Booker v. State, the case relied on by Morales, the defendant properly preserved his complaint by specifically objecting at trial that "[u]nder Rule 404(b) . . . the similarities are not great enough to make those [extraneous offenses] relevant under 404(b), and they should stay excluded." See Booker v. State, 103 S.W.3d 521, 529 (Tex.App.-Fort Worth 2003, pet. ref'd). Further, a review of the record shows that it was not obvious to the trial court and the State that Morales's objection was based on a lack of similarity between the threat and the aggravated robbery as a "signature" attributable to the defendant. See Miller v. State, 741 S.W.2d 382, 387 (Tex.Crim.App. 1987); Zillender, 557 S.W.2d at 517. Because Morales's complaint on appeal does not comport with his objection at trial, we hold that Morales has failed to preserve this issue for review. Tex.R.App.P. 33.1; Coffey v. State, 796 S.W.2d 175, 179 (Tex.Crim.App. 1990) (an objection raised on appeal will not be considered if it varies from the objection raised at trial). Moreover, even if Morales's complaint was preserved, we would hold that admission of the evidence was harmless in light of the overwhelming independent evidence of Morales's guilt: the girlfriend's testimony that Morales admitted stabbing the cab driver the cab driver's positive identification of Morales as his attacker within a few hours of the robbery; the apprehension of Morales near the abandoned taxi cab within a short time after the robbery; and recovery of a receipt matching the driver's cab number on Morales's person when he was apprehended. In addition, the jury charge instructed the jury that it could not consider the extraneous offense evidence for any purpose other than as proof of knowledge or identity, and, absent record evidence to the contrary, we presume the jurors followed the instructions. Smith v. State, 898 S.W.2d 838, 880 (Tex.Crim.App. 1995). Based on our review of the entire record, we can not say that any error in the admission of the evidence had a substantial and injurious effect or influence on the jury's verdict. Therefore, any error was harmless. Tex.R.App.P. 44.2(b); see King, 953 S.W.2d at 271; Johnson, 43 S.W.3d at 4. Accordingly, we affirm the trial court's judgment.