“If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived.”
How later courts described this case
- “If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived.”
Written by the judges who cited it.
The opinion
Opinion issued February 6, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00038-CR
———————————
JOHN HOUSTON WELLS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1503786
MEMORANDUM OPINION
A jury convicted appellant, John Houston Wells, of aggravated robbery, and
the trial court, after finding an enhancement paragraph “true,” assessed appellant’s
punishment at 40 years’ confinement. In his sole issue on appeal, appellant
contends that the trial court erred in admitting evidence of an extraneous bad act at
punishment. We affirm.
BACKGROUND
A jury convicted appellant of aggravated robbery based on a home invasion,
during which three men armed with pistols demanded entry to the complainants’
home. While inside, the assailants took the complainants’ cell phones and wallets,
as well as $20,000 they found hidden in a closet. The assailants also pistol-
whipped one complainant and threatened to sexually assault another. During the
subsequent police investigation, appellant’s fingerprints were discovered on a
Playstation game console inside the residence. Based on this information, the
police prepared a photospread and one of the complainants positively identified
appellant, both from the photospread and at trial.
After the jury found appellant guilty, punishment was tried to the court.
Appellant pleaded true to an enhancement alleging that he had previously been
convicted of burglary of a habitation in 2011 and had served three years in prison.
The parties stipulated that, in 2010, appellant was sentenced to 75 days in county
jail for unlawfully carrying a weapon, and, in 2013, he was sentenced to one year
in state jail for attempted possession of a firearm.
At the punishment hearing, appellant called his mother to testify on his
behalf. During cross-examination, the prosecutor asked his mother about the
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details of her son’s prior convictions. She explained that her son started carrying a
weapon, even though he was prohibited by law from doing so, when he was
involved in a shooting in 2009. The following exchange then took place between
appellant’s mother and the prosecutor:
[Prosecutor]: And prior to being convicted of his aggravated robbery,
you’re aware that he was—before he was arrested for this aggravated
robbery, he was actually on bond for another aggravated robbery?
[Mother]: Yes, yes.
[Prosecutor]: Is that correct?
[Mother]: That’s true.
[Prosecutor]: Okay. So sometime in 2014, there is an aggravated
robbery and he makes bond for that; is that correct?
[Mother]: That’s correct. He made bond.
[Prosecutor]: Did you help him make that bond?
[Mother]: Of course I did. I’m his mother.
[Prosecutor]: And then he was charged with the aggravated robbery
that he was just convicted of and he again made bond; is that correct?
[Mother]: Yes, he did.
[Defense Counsel]: Judge, I’m going to object at this time. What the
State is trying to do at this time, Judge, is backdoor some pending
cases where Mr. Wells has been charged but has not been convicted of
at all. He’s trying to backdoor it through this witness. I think that’s
highly improper.
The Court cannot consider those things unless they prove it beyond a
reasonable doubt, and they have no witnesses to come testify about
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any of that stuff, Judge. So I object to the State bringing up those
pending cases.
[Trial Court]: The Court’s well aware of what it can and cannot
consider, Mr. Brown. Your objection is overruled.
ADMISSION OF EXTRANEOUS OFFENSE AT PUNISHMENT
In his sole issue on appeal, appellant contends that “[t]he trial court erred in
admitting evidence of an extraneous bad act over object at the punishment stage of
the trial.” Specifically, appellant argues that “[c]learly the extraneous aggravated
robbery charge was inadmissible” because “[t]he State put on no evidence to
support the charge.”
Standard of Review
We review a trial court’s decision to admit extraneous offense evidence
during the punishment phase of trial under an abuse of discretion standard.
Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). A trial court
abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990). When considering a trial court’s decision to admit evidence, we will
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996)
(internal quotations omitted). We will uphold a trial court’s evidentiary ruling if it
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is correct on any theory of law applicable to that ruling. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
Article 37.07 of the Code of Criminal Procedure provides that during the
punishment phase of trial, evidence as to any matter deemed relevant to sentencing
may be admitted, including evidence of an extraneous offense shown beyond a
reasonable doubt to have been committed by the defendant. TEX. CODE CRIM.
PROC. art. 37.07, § 3(a)(1). Evidence is relevant to sentencing if it is “helpful to the
jury in determining the appropriate sentence for a particular defendant in a
particular case.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006).
This includes but is not limited to evidence regarding an extraneous crime or bad
act for which the defendant could be held criminally responsible, regardless of
whether he has previously been charged with or finally convicted of the crime or
act. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). Prior crimes or bad acts are
introduced to provide additional information that the jury may consider in
determining what sentence the defendant should receive. Fields v. State, 1 S.W.3d
687, 688 (Tex. Crim. App. 1999).
Preservation of Error
The State responds that appellant waived error by failing to make a timely
objection. We agree. To preserve error for appellate review, an appellant is
ordinarily required to make a timely request, objection, or motion to the trial court
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stating the grounds for the ruling sought with sufficient specificity to make the trial
court aware of his complaint. See TEX. R. APP. P. 33.1(a)(1). An objection is
timely if raised as soon as the ground for the objection becomes apparent;
otherwise the matter is forfeited. Johnson v. State, 878 S.W.2d 164, 167 (Tex.
Crim. App. 1994). In other words, the objection must be made at the earliest
possible opportunity. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002).
Here, the Prosecutor asked five questions about the pending charge, which
the Mother answered, before defense counsel ever lodged an objection. Because
the objection was not made at the “earliest possible opportunity,” the issue
complained of on appeal was forfeited. See Johnson, 878 S.W.3d at 167; see also
Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (“If a defendant
fails to object until after an objectionable question has been asked and answered,
and he can show no legitimate reason to justify the delay, his objection is untimely
and error is waived.”).
Accordingly, we overrule appellant’s sole issue on appeal.
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CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
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