Lori Elsie Cooper v. The State of Texas--Appeal from 179th District Court of Harris County

Opinion issued October 19, 2006

 

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01 05 00764 CR

 

LORI ELISE COOPER, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

 

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1016264

 

MEMORANDUM OPINION

 

Appellant, Lori Elise Cooper, was charged by indictment with capital murder, to which she pleaded not guilty. See Tex. Pen. Code Ann. 19.03 (Vernon Supp. 2005). A jury found appellant guilty of the lesser-included offense of murder and assessed punishment at 60 years confinement. See id. 19.02 (Vernon 2003).

In six issues, appellant contends that (1) the non-accomplice witness evidence was legally insufficient to connect her with the commission of the offense; (2) the trial court erred in admitting evidence of an extraneous offense; (3) the trial court erred in allowing the State to obtain testimony through leading questions; (4) the trial court erred in allowing the State to confer with a witness during a break in the witness s testimony; (5) the trial court erred in allowing the testimony of a witness after he remained in the courtroom in violation of Rule of Evidence 614; and (6) the trial court erred in admitting a prejudicial photograph into evidence.

We affirm.BackgroundDuring the 2001 2002 school year, appellant, then 16 years of age, told several friends that the complainant, Gary Cooper, her biological father, was abusive toward her and that she wanted him dead. Appellant asked her friend, Trusten Anderson, three times to kill the complainant, as outlined in a specific plan. When Anderson refused, appellant ended their relationship.

Throughout the school year, appellant visited the home of her friend, Kelton Yates, after school. Appellant told Yates and his family that the complainant was abusive toward her and that she wanted to kill him or would get someone to kill him. Appellant told Yates s mother, Tabitha Burrell, that the complainant was worth a lot of money dead.

Toward the end of the school year and the early part of the summer of 2002, appellant dated Yates periodically and also dated Andre Reece. Appellant reported to Reece that she had been pregnant with Reece s baby, but that she had miscarried due to being hit in the stomach by the complainant. Appellant asked Reece to kill the complainant. Reece refused and the relationship ended.

In mid-July, appellant asked another friend, Arturo Cheerio Villarreal, to kill the complainant. Appellant told Villarreal that she would leave a key or the garage door opener in the mailbox when she and her mother left for summer school classes in the morning. Appellant told Villarreal to go into the complainant s bedroom and to kill him. Appellant told Villarreal to make it look like a robbery and to take whatever he wanted as payment. Villarreal refused.

On or about July 26, 2002, appellant offered Yates and his friend, Kiondrix Smith, $5,000 of the money appellant anticipated from the complainant s life insurance proceeds to kill the complainant. Appellant told them that she would leave the garage door opener in the mailbox when she and her mother left for school in the morning. Yates and Smith were to go into the house and kill her father. Yates and Smith accepted the offer.

On Saturday, August 3, 2002, before the plan had been carried out, Yates s mother, Burrell, called appellant s mother, Wanda Cooper, to report that appellant might be pregnant with Yates s baby. Burrell and Yates met with appellant, Cooper, and the complainant at appellant s house to discuss the matter. Appellant s parents insisted that any pregnancy must be aborted. Appellant and Yates wanted to keep the baby. A heated exchange occurred between Yates and the complainant. While the group waited, appellant took a pregnancy test and the results indicated that appellant was not pregnant. The parents agreed that appellant and Yates would no longer be permitted to see each other unless supervised.

The next day, on Sunday, August 4, appellant reported to her parents that she could not find her house keys. On Monday, September 5, appellant called Yates and told him that he should act to kill her father that night rather than wait until a morning before school, as originally planned. Appellant told Yates that she had left her house keys in his closet.

That night, Yates called Smith and, shortly after 1:00 a.m., Smith drove Yates to appellant s house and parked three houses away so the car would not be recognized. Yates and Smith walked to appellant s house, where Yates unlocked the burglar bars outside the front door and Smith rang the doorbell. When the complainant opened the door, Yates stabbed him three times in the chest with a serrated hunting knife. Yates and Smith then fled.

Wanda Cooper had been awakened by the doorbell that night and had initially gone downstairs with the complainant. Cooper saw Yates standing outside the burglar bars and went back upstairs to put on clothes. When she returned, the complainant was sitting on a bench on the front porch and she could see two men running away. Cooper saw the wounds and asked the complainant who had caused them. The complainant replied, Kelton.

The emergency services report indicates that the 911 dispatcher received a call from Cooper at 1:57 a.m. Cellular phone records indicate that appellant called Smith immediately after the murder, at 1:56 a.m., and again at 2:09 a.m. In addition, the records show that appellant called Yates five times prior to the murder, between the hours of 9:13 p.m. and 12:34 a.m. that night, and four more times following the murder, between 2:32 a.m. and 4:42 a.m.

The responding emergency personnel and investigating officers testified that

appellant was unemotional at the scene. Appellant and Cooper did not accompany the complainant to the hospital; rather, they went directly to the police station. The next morning, before appellant and Cooper returned home, a family friend discovered that a key, later identified as appellant s, had been broken off in the lock of the burglar bars at appellant s house.

The medical examiner determined that the complainant died from a stab wound that penetrated his heart. In 2003, Yates was found guilty of murder and assessed 60 years confinement. Smith was not charged. In early 2005, after a tip was phoned in to police, appellant was charged with capital murder for having employed Yates to commit the murder of the complainant for remuneration or the promise of remuneration. The jury was charged on the law of parties. The jury found appellant guilty of the lesser-included offense of murder and this appeal ensued.

Corroboration of Accomplice Witness Testimony

In her first issue, appellant contends that the non-accomplice evidence was legally insufficient to connect her to the commission of the murder.

A. Standard of Review

Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction cannot stand upon accomplice testimony unless it is corroborated by other evidence that tends to connect the accused with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cao v. State, 183 S.W.3d 707, 710 (Tex. App. Houston [1st Dist.] 2005, pet. ref d). Corroborating evidence is insufficient if it merely shows the commission of an offense. Tex. Code Crim. Proc. Ann. art. 38.14; Solomon, 49 S.W.3d at 361; Cao, 183 S.W.3d at 710. In assessing the sufficiency of corroborative evidence, we eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the offense. Solomon, 49 S.W.3d at 361; Cao, 183 S.W.3d at 710. The non-accomplice evidence need not directly link the accused to the commission of the offense nor need be sufficient on its own to establish the accused s guilt beyond a reasonable doubt. Solomon, 49 S.W.3d at 361; Cao, 183 S.W.3d at 710. Article 38.14 merely requires some non-accomplice evidence tending to connect the accused with the crime, not non-accomplice evidence for every element of the crime. Cao, 183 S.W.3d at 711 (citing Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001)).

Although appellant complains that the evidence is legally insufficient to sustain her conviction, the Court of Criminal Appeals has declined to impose legal and factual sufficiency standards on a review of accomplice witness testimony under Article 38.14. Cathey v. State, 992 S.W.2d 460, 462 63 (Tex. Crim. App. 1999); Cao, 183 S.W.3d at 710.

B. The Law

A person commits murder if that person (1) intentionally or knowingly causes the death of an individual or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. 19.02. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. 7.02(a)(2) (Vernon 2003).

C. Analysis

The trial court instructed the jury that the witness Yates was an accomplice as a matter of law and instructed the jury to consider whether the witness Smith was an accomplice as a matter of fact. In addition, the trial court instructed the jury as to the corroboration required. Eliminating the testimony of Yates and Smith from consideration, we conclude that the record contains independent evidence that tends to connect appellant with the commission of the offense.

The State offered the testimony of witnesses Anderson, Reece, and Villarreal, who each testified that appellant asked him to kill the complainant. Anderson testified that, on three occasions, appellant asked him to kill the complainant. On the third occasion, appellant urged Anderson to come over to her house and pretend to start an argument. Then, when the complainant came outside to break it up, Anderson was to kill him. Anderson declined.

Reece testified that appellant asked him to kill the complainant and that he declined. In addition, Reece testified that appellant had reported to him that she was pregnant with Reece s baby but that she had miscarried due to being hit by the complainant.

Villarreal testified that appellant asked him kill the complainant. Villarraeal testified that appellant was to leave a garage door opener or a key in the mailbox and that he and Yates were to go into the house and kill the complainant. Villarreal testified that appellant stated that she wanted it to look like a robbery and that he and Yates could take whatever they wanted from the house as payment. Villarreal also testified that appellant told him that there would be a lot of insurance money. Evidence of prior solicitation of another person to commit murder constitutes sufficient corroboration. See Claxton v. State, 124 S.W.3d 761, 766 (Tex. App. Houston [1st Dist.] 2003, pet. ref d) (examining solicitation of capital murder). Further, Villarreal testified that appellant had admitted to him that she had previously attempted to poison the complainant. Villarreal stated that [the appellant] poisoned his insulin or in a drink or something. [The complainant] was in the hospital doing real bad; but he pulled through.

The State also offered the testimony of Yates s mother, Burrell, who testified that appellant told her that she wanted the complainant dead and that he was worth a lot of money dead. Yates s sister, Itaya Shelley, testified that appellant told her she was going to get someone to kill her father. Suspicious statements by the accused are appropriate to consider in determining whether accomplice testimony is sufficiently corroborated. See Killough v. State, 718 S.W.2d 708, 711 (Tex. Crim. App. 1986).

In addition, the State introduced cellular telephone records that tend to connect appellant to the commission of the offense. Cooper testified that, upon finding the complainant wounded on the front porch, she screamed for appellant to call 911. Cooper testified that appellant called 911 from the house telephone. The emergency services record indicates that Cooper, herself, called 911 at 1:57 a.m., and the cellular phone records indicate that appellant was on her cellular telephone with Smith at the time, having called him at 1:56 a.m. The record shows that appellant called Smith s cellular telephone immediately after the murder, at 1:56 a.m. and at 2:09 a.m. In addition, the records show that appellant called Yates five times before the murder that night, between the hours of 9:13 p.m. and 12:34 a.m., and that appellant called Yates again four more times after the murder, between 2:32 a.m. and 4:42 a.m. The call records are strong circumstantial evidence that tends to connect appellant to the offense because it shows that appellant was in direct communication with the actors immediately before and after the commission of the crime. See Longoria v. State, 154 S.W.3d 747, 756 (Tex. App. Houston [14th Dist.] 2004, pet. ref d).

The State also introduced evidence that appellant s own key was found broken off in the lock to the burglar bars the morning after the murder. Two days prior to the murder, appellant had summoned her parents away from golfing with friends to let her back into the house, stating that she could not find her keys. The next day, Yates murdered the complainant. The morning after the murder, appellant s key was found broken off in the lock of the burglar bars.

A rational jury could have reasonably concluded that the non-accomplice evidence tends to connect appellant with the commission of the offense. The corroborating testimony provides evidence that appellant was seeking to have the complainant killed. See Claxton, 124 S.W.3d at 766. The corroborating evidence shows that appellant was in contact with the actors in the hours leading up to and after the murder was committed and suggests that appellant furnished the key that permitted the actors to access the complainant. We conclude that the non-accomplice evidence is sufficient to tend to connect appellant with the commission of the offense and to support the conviction.

Accordingly, we overrule appellant s first issue.

Extraneous Offense

In her second issue, appellant contends that the trial court erred in admitting an extraneous offense of appellant (namely, an attempt by appellant to poison the complainant) because the State did not provide Appellant adequate notice of the State s intention to offer any poisoning attempt. Appellant also contends that the extraneous offense evidence was inadmissible under Texas Rule of Evidence 403 and 404(b), and that she was irreparably harmed by the admission of the evidence.

A. The Applicable Law and Standard of Review

Evidence of extraneous offenses is not admissible to prove the character of the person in order to show action in conformity therewith. Tex. R. Evid. 404(b). However, evidence of other crimes, wrongs, or acts may be admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State s case-in-chief such evidence other than that arising in the same transaction. Id. Even if admissible under 404(b), evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.

In all murder prosecutions, the State (or the defendant) shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. Tex. Code Crim. Proc. Ann. art. 38.36 (Vernon 2005). Article 38.36 of the Texas Code of Criminal Procedure allows the showing of the relationship between the accused and the deceased. Bisby v. State, 907 S.W.2d 949, 957 (Tex. App. Fort Worth 1995, pet. ref d).

It is within the trial court s discretion to determine whether extraneous evidence has relevance apart from character conformity and whether the danger of unfair prejudice outweighs the probative value of the evidence. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court s determination as to the admissibility of the evidence is reviewed for an abuse of discretion. Id. If the trial court s ruling lies within the zone of reasonable disagreement, we will affirm. Id.

B. Adequate Notice

Trial in the instant case began on June 16, 2005. Appellant contends that, in March of 2005, she requested notice of the State s intent to use extraneous offenses and that the State failed to provide such notice until Friday, June 3, 2005, which her counsel did not personally receive until Monday, June 6, 2005. Appellant complains that she was harmed because her counsel did not have sufficient time to investigate the State s allegation that she tried to kill the complainant by poisoning him. // The State contends that it gave notice in advance of trial, pursuant to rule 404(b).

The record shows that, on March 23, 2005, the trial court ordered the State to furnish for inspection [a]ll extraneous offenses with date, time, [and] place, which may be admissible against the defendant . . . on or before 10 days prior to trial. (Emphasis added.) The record shows that, on May 26, 2005, appellant filed a Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct. The record shows that, also on May 26, 2005, the trial court again ordered that the State produce extraneous offense evidence for inspection on or before 10 days prior to trial. Trial began June 16, 2005. Hence, pursuant to the trial court s order, the State s notice was due on or before June 6, 2005.

The record shows that, on June 2, 2005, the State filed a Notice of Intent to Use Evidence of Other Crimes, Wrongs, or Acts, which included a paragraph concerning appellant s attempt to kill the complainant by poisoning him. Appellant concedes that she received notice on June 3, 2005. Appellant does not challenge the substance of the notice; rather, she solely challenges its timeliness. We conclude that the State s notice was timely filed.

C. Admissibility

At trial, the State put on the testimony of Villarreal, as follows:

[State]: What did she say she had tried to do herself?

[Defense]: Your Honor, I object to that as leading.

[Court]: Overruled. The question is on the table. Let s get it out there.

[Villarreal]: She tried to poison him in some sort of way. He was in the hospital, and I think she poisoned his insulin or in a drink or something. He was in the hospital doing real bad; but he pulled through and made it well, to my knowledge. I don t know how true it was, but that s what I was told. //

Prior instances of violence toward the victim relate to the relationship between the defendant and the victim. Jaggers v. State, 125 S.W.3d 669, 670 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). Because the attempted poisoning was an act of violence that related to the relationship appellant had with her father, it was admissible under 404(b).

Although the evidence is admissible under 404(b), we must determine if its probative value is substantially outweighed by the danger of unfair prejudice by considering (1) how compellingly the evidence serves to make more or less probable a fact of consequence, (2) the potential for the evidence to impress the jury in some irrational but indelible way, (3) how much trial time the proponent needs to develop

the evidence, and (4) how great is the proponent s need for the evidence. See Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 389 90 (Tex. Crim. App. 1990); Jaggers, 125 S.W.3d at 670.

Here, the evidence makes more probable the fact that appellant sought to kill the complainant. The potential for the evidence to impress the jury in an irrational but indelible way is not significant because the court gave a limiting instruction in the jury charge informing the jurors that the extraneous offense evidence could only be considered for the issue of motive, intent, preparation, or plan. Although appellant complains that the limiting instruction was not sufficient, appellant states in her brief that [t]he so-called poisoning attempt testimony was not compelling. Finally, the State s need for the evidence was significant because this was the sole evidence that appellant had made any direct attempts to kill the complainant herself. We conclude that the trial court reasonably concluded that the evidence was admissible. We hold that the trial court did not abuse its discretion in admitting the evidence.

Accordingly, we overrule appellant s second issue.

Leading Questions

In her third issue, appellant contends that the trial court erred in permitting the State to elicit testimony through the use of a minimum of seventy-seven leading questions over the course of trial.

A. Standard of Review and Applicable Law

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. Tex. R. Evid. 611(c). However, [t]he asking of leading questions is seldom a ground for reversal. Uhl v. State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972). Permitting leading questions on direct examination is within the sound discretion of the trial court. Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000). To demonstrate that the trial court abused its discretion, an appellant must identify the specific leading questions he challenges and must show that he was unduly prejudiced by the use of those leading questions. Id.

B. Analysis

Here, appellant has specifically identified 77 questions asked by the State during trial that she contends the trial court improperly permitted. First, we note that in the majority of the questions that appellant has identified (some 59 of the 77), the trial court did not permit the question; rather, the trial court sustained appellant s objections and, in some cases, admonished the State not to lead the witness or instructed the State to rephrase the question. Notwithstanding, appellant has failed to show how she has been unduly prejudiced by the use of the questions she has identified. See id. Appellant merely asserts that harm is obvious and that the ultimate harm was the 60-year sentence Appellant received. Appellant states that the prosecutor took advantage of the leniency allowed with leading questions and urges this Court to make an example of him and the harm that results from such behavior. We cannot presuppose undue prejudice.

We cannot conclude that the trial court has abused its discretion. Accordingly, we overrule appellant s third issue.

Conferring with Witnesses

In her fourth issue, appellant contends that the trial court erred in allowing the State to confer with the State s material witness, Kelton Yates, in the holdover cell, over a lunchbreak, and while the State still had Yates on direct examination, and before appellant had the opportunity to cross-examine Yates. In the body of her brief, appellant also contends that the trial court improperly permitted the State to confer with witness Shelley during a break.

Article 36.06 of the Texas Code of Criminal Procedure requires that, when, as here, the Rule // has been invoked, the trial court shall instruct the witnesses not to discuss the case with anyone, except by permission of the trial court. See Tex. Code Crim. Proc. Ann. art. 36.06 (Vernon 1981).

In the first instance, appellant complains of the following, that occurred while the State had Yates under direct examination:

[State]: Well, at some point, did you eventually agree to kill Gary Cooper?

[Yates]: Yes.

[State]: And who asked you to do that?

[Yates]: Lori.

[State]: And did she give you any incentive or promise of anything to make you do that?

[Yates]: No, Sir.

[State]: She didn t promise you any money to do that?

[Yates]: No, Sir.

[State]: She never did?

[Yates]: No, Sir.

[State]: Do you recall giving me a statement in connection with this case?

[Yates]: Yes, Sir.

[State]: Do you recall telling me that she offered you $5,000?

[Defense]: Your Honor, I m going to object to the improper impeachment.

[Court]: Sustained.

[Defense]: And I d like to approach the bench.

[Court]: We re going to have the jury disregard the last question. And, ladies and gentlemen, would you please go back to the jury room.

(Jury out)

(Lunch recess)

[Defense]: The witness is under the Rule. Counsel, over the break, based upon the witness s statement, he s being placed in a position where he can confer with this witness relative to testimony that he has given that is different from what he anticipated, we d ask that counsel not have access to this witness while we re on a break.

[Court]: Denied

(Lunch recess)

. . . .

(Continuing in the jury s hearing:)

[State]: Mr. Yates, did we have a chance to talk over the break?

[Yates]: Yes, Sir.

. . . .

[State]: All right. Now did Lori Cooper ever offer you money to kill her father?

[Yates]: No.

[State]: Did she ever offer you and anyone else money to kill her father?

. . . .

[Yates]: Yes.

[State]: Who did she offer money to to kill her father?

[Yates]: Me and Kiondrix Smith.

 

Appellant contends that the trial court improperly denied his request that the State not be permitted to confer with its witness over the break, solely relying upon Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594 (1989). We find Perry inapposite to the case at hand. In Perry, the issue was whether a defendant s right to counsel had been violated when the trial court ordered the defendant not to confer with his attorney over a recess. Id. at 281 82, 109 S. Ct. at 600 01. It is within the trial court s discretion to permit counsel to confer with its own witness during a recess. See Tex. Code Crim. Proc. Ann. art. 36.06 (Vernon 1981). Here, the State conferred with Yates during the break as permitted by the trial court.

Appellant contends that Yates s testimony changed over the break. After examining the testimony, it appears that Yates maintained his answer in the negative, as to whether appellant offered to pay him, until the question itself was changed. Appellant has not shown that the trial court s decision to allow the State to confer with Yates constituted an abuse of discretion.

In the second instance, appellant complains of the following:

[State]: Let me put something else on the record. I talked to Ms. Shelley more yesterday after Court recessed; and we determined that the timeframe for this statement would have been sometime in the early part of 2002, which would have been within six to eight months of this offense.

Appellant contends that it was improper for the State to have spoken with Shelley. However, the record does not reflect that appellant objected to this statement or to Shelley s continued testimony. Accordingly, any error has not been preserved. Tex. R. App. P. 33.1(a); Valle v. State, 109 S.W.3d 500, 509 10 (Tex. Crim. App. 2003).

We hold that the trial court did not abuse its discretion. Accordingly, we overrule appellant s fourth issue.

Violation of the Rule

In her fifth issue, appellant contends that the trial court erred in allowing the testimony of a witness who remained in the courtroom in violation of Rule of Evidence 614 ( the Rule ).

A. Standard of Review

The Rule provides that upon the request of a party the trial court must, or may on its own motion, order witnesses excluded from the courtroom during trial to prevent witnesses from hearing the testimony of other witnesses. Tex. R. Evid. 614. The purpose is to prevent the testimony of one witness from influencing the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005); Phillips v. State, 64 S.W.3d 458, 459 (Tex. App. Houston [1st Dist.] 2001, no pet.). If a witness violates the Rule by remaining in the courtroom after the Rule is invoked, the testimony of that witness may be admitted or excluded at the trial court s discretion. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). On appeal, the trial court s decision to admit testimony will not be disturbed absent an abuse of that discretion. Id. We determine whether the appellant was harmed by the witness s violation. Id. Harm is established by showing that (1) the witness actually conferred with or heard testimony of other witnesses and (2) the witness s testimony contradicted the testimony of a witness from the opposing side or corroborated testimony of a witness he had conferred with or heard. Id.

B. Analysis

Here, the Rule was invoked at the start of trial. The record reflects that, on June 23, 2005, counsel for the defense advised the trial court that the State s witness, Arturo Villarreal, had been present in the courtroom during testimony in the case. Villarreal testified that he had been present for the testimony of Rose Smith, the custodian of records for the Houston Police Department. Hence, Villarreal actually heard the testimony of another witness. See Bell, 938 S.W.2d at 50.

However, Villarreal s testimony did not corroborate Rose s testimony because the testimonies were unrelated. Rose s testimony consisted of providing the admissibility foundation for the 911 call made by appellant on the night her father was killed. Villarreal s testimony concerned his relationship with appellant, appellant s proffered plan to kill the complainant, and the fact that Yates was present during that conversation.

Appellant contends that Villarreal heard more than he admitted because Villarreal was present in the courtroom for several hours and Rose s testimony lasted approximately 15 minutes. Appellant contends that Villarreal also heard testimony that day from Dwayne Wolf, Deputy Chief Medical Examiner for Harris County, and from Detective Curtis Scales of the Houston Police Department. There is no evidence in the record to indicate how long Villarreal was present or what, if any, other testimony Villarreal actually heard.

We cannot conclude on the record before us that the trial court abused its discretion by allowing Villarreal to testify. Accordingly, we overrule appellant s fifth issue.Admissibility of Evidence

In her sixth issue, appellant contends that the trial court erred in admitting State s Exhibit Number 40, which appellant characterizes as an inflammatory and prejudicial photograph of the deceased complainant.

This complaint has not been preserved. When the State offered a series of photographs for admission, including the photograph in question, appellant did not object to admissibility of the photograph in question. After the trial court admitted the photograph into evidence, appellant said, Of course, those that we did not object to, we would object based on the fact that the probative value outweighs the prejudicial effect.

In order to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. To be timely, an objection must be raised at the earliest opportunity or as soon as the ground of objection becomes apparent. Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995). Because appellant did not object to the photograph before it was entered into evidence, we hold that appellant has not preserved an error for review.

We overrule appellant s sixth issue.

Conclusion

We affirm the judgment of the trial court.

 

Laura Carter Higley

Justice

 

Panel consists of Justices Nuchia, Jennings, and Higley.

 

Do not publish. See Tex. R. App. P. 47.2(b).