Opinion
No. 09-06-226 CR.
Submitted on October 19, 2006.
Opinion Delivered January 10, 2007. Do Not Publish.
On Appeal from the 9th District Court, Montgomery County, Texas, Trial Cause No. 04-12-10385 CR.
Before McKEITHEN, GAULTNEY and HORTON, J.J.
MEMORANDUM OPINION
Appellant James Michael Peluso pled guilty to the felony offense of burglary of a habitation and received seven years' deferred community supervision as well as a fine. The State filed an amended motion to adjudicate guilt alleging he committed criminal trespass, burglary of a habitation, burglary of a motor vehicle, failed to pay fees and fines, and failed to report to the probation office on four occasions. The trial court held a hearing on the motion, found all eight allegations in the motion to be true, adjudicated Peluso guilty, and sentenced him to fifteen years in the Texas Department of Criminal Justice Institutional Division. We affirm the trial court's judgment. Peluso argues the trial court erroneously admitted extraneous evidence that harmed his substantial rights and influenced his sentence. He specifically complains of extraneous offense evidence elicited during the testimony of Corporal George Beck, Bruce Keville, and Detective Thomas Gannucci. Corporal Beck testified regarding burglary of a motor vehicle and criminal trespass offenses in Harris County as alleged in the amended motion to adjudicate. He testified as to other offenses of burglary and theft, and a warrant for failure to appear, which were not alleged in the amended motion to adjudicate. Bruce Keville testified regarding the burglary of his vehicle, which Peluso contends was not an allegation in the motion to adjudicate. Detective Gannucci testified regarding Peluso's burglary of a habitation in Montgomery County as alleged in the motion to adjudicate. He also stated he was aware that Peluso was suspected of numerous burglaries in Harris County. The State maintains that we have no jurisdiction over this appeal under section 5(b) of article 42.12 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2006). Section 5(b) provides, in part, the following: On violation of a condition of a community supervision . . . the defendant may be arrested and detained. . . . The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. Id. Only claims that directly and distinctly concern the punishment phase of the adjudication proceedings are subject to review on direct appeal. Hogans v. State, 176 S.W.3d 829, 834 (Tex.Crim.App. 2005). The State argues the extraneous offense evidence only related to the adjudication phase of the proceeding and not to the punishment phase, or in the alternative, that any effect of the evidence on the punishment phase was merely a "spill over" effect which does not establish jurisdiction. The trial court combined the motion to adjudicate and sentencing hearings. The State in its closing argument asked for a twenty-year sentence based on "the multiple witnesses, multiple invasions of privacy, invasions of vehicles, invasions of homes. . . ." In assessing punishment, the trial court acknowledged Peluso's "pattern of theft [and] history of felonies, crime, thievery, burglary." The allegations in the amended motion to adjudicate did not include theft, and only included one allegation each of burglary of a habitation, burglary of a vehicle, and criminal trespass. We conclude we have jurisdiction over the punishment issue. We next consider whether Peluso preserved error. See Tex. R. App. P. 33.1. Peluso states the alleged error as to all admitted extraneous offense evidence was properly preserved because the court granted a "running objection" when defense counsel objected to its introduction. Peluso obtained the running objection ruling during the following exchange: [State's counsel]: Okay. I believe you also indicated that there was a cell phone in Mr. Peluso's possession? [Beck]: Correct. [State's counsel]: How did you go about determining the owner of that cell phone? [Beck]: We checked the information on the cell phone itself, the phone book, et cetera, and were able to locate information on the complainant. . . . [Defense counsel]: I'm going to object to the portions we just went through about the cell phone as being outside the scope of the Motion to Adjudicate and ask it be stricken from the Record. These are not offenses which have been listed. [Court]: Overruled. . . . [State's counsel]: What did you learn from Ms. Hall regarding the cell phone? [Defense counsel]: I'm going to renew my objection about anything regarding the cell phone. It's not one of the allegations in the Motion to Adjudicate. [Court]: I'll give you a running objection on it, ma'am. Peluso obtained a "running objection" only to evidence "about the cell phone" and "anything regarding the cell phone." An objection preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g). The objection and the trial court's ruling did not preserve error for all extraneous offense evidence admitted. The evidence regarding the cell phone is the only extraneous evidence admitted to which Peluso preserved error. Section 3(g) of Article 37.07 of the Texas Code of Criminal Procedure requires the State to notify a defendant of its intent to introduce evidence of extraneous offenses at the guilt/innocence or punishment phase of a trial after a timely request by the defense. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon 2006). Peluso requested notice of the State's intent to introduce extraneous evidence at trial prior to his entering into a plea agreement for the original offense for which he received community supervision. Peluso provides no authority to support his contention that this earlier request triggers the notice requirement for a subsequent motion to adjudicate. Peluso contends in any event the admission of the evidence had a substantial and injurious effect or influence in determining the trial court's sentencing decision. The State argues any error arising from the admission of extraneous evidence is harmless. A trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). The motion to adjudicate included an allegation of burglary of a motor vehicle in Harris County on September 21, 2005. The evidence showed Beck investigated three burglaries that night. All three burglaries were part of the same investigation. The motion to adjudicate did not specify which burglary formed the basis of the allegation. Beck testified to the burglary of one vehicle on September 21, 2005, and that a cell phone was recovered. It is unclear whether this burglary was the September 21, 2005 burglary of a vehicle alleged in the motion to adjudicate. Even if it was not, the record does not indicate this burglary alone had a substantial and injurious effect or influence in determining the trial court's sentencing decision. Appellant's sole issue is overruled. The trial court's judgment is affirmed. AFFIRMED.