Martinez, John Michael v. The State of Texas--Appeal from 338th District Court of Harris County

Affirmed and Opinion filed December 31, 2002

Affirmed and Opinion filed December 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01092-CR

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JOHN MICHAEL MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 878,291

O P I N I O N

John Michael Martinez appeals his conviction for deadly conduct. He asserts the trial court erred in admitting certain out-of-court statements. Because we conclude the alleged error, if any, was harmless, we affirm the trial court=s judgment.

I. Factual Background

Officers Towns and Rowan of the Houston Police Department responded to a family disturbance call from a residence in northeast Houston. The officers traveled in separate patrol cars with Officer Towns in the lead. When the officers arrived at the scene, they saw appellant back out of the driveway in a pick-up truck. Officer Towns stopped the truck so that he could determine whether appellant was involved in the disturbance. Meanwhile, Officer Rowan parked his patrol car behind Officer Towns=s car and stood behind Officer Towns as a precautionary measure.

Officer Towns noticed that appellant=s eyes were bloodshot and that appellant smelled of alcohol. After determining that appellant lived at the house, the officers decided to detain him. At that point, appellant=s wife, driving a minivan, pulled up behind them. Appellant=s wife appeared to be frightened. Her voice was shaky. She identified appellant as her husband and said, Awe called the police.@ Appellant=s seventeen-year-old son was sitting in the minivan=s passenger seat, and appellant=s fifteen-year-old daughter and seven-year-old son were in the back seat. When Officer Towns asked what had happened, appellant=s older son pointed to appellant and said, AThat=s my dad. He shot at us.@ Officer Towns then asked appellant=s older son a few questions about the gun and learned that it was still in the house.

Officer Towns noticed that the front door of the house was ajar. He saw the rifle leaning against the wall just inside the doorway. Officer Towns returned to his patrol car with the gun so that he could watch appellant, who was in the backseat of the patrol car, while Officer Towns looked for a serial number on the gun. As Officer Towns was looking for a serial number, appellant blurted out, AThat=s not my gun, it=s my brother-in-law=s. I just shot at them because I was pissed.@

Meanwhile, Officer Rowan was collecting evidence. After finding a spent bullet in the house, a spent bullet in the minivan, and a bullet hole on the driver=s side of the minivan, Officer Rowan decided to get a detailed account of the events leading up to the shooting. He conducted separate interviews of appellant=s wife, appellant=s older son, and appellant=s daughter. Following the interviews, the officers arrested appellant.

Charged by indictment with the offense of deadly conduct, appellant pleaded not guilty. The jury found appellant guilty, and, after appellant pleaded true to enhancement paragraphs regarding two prior convictions, the jury assessed punishment at 25 years= confinement in the Texas Department of Corrections, Institutional Division.

II. Analysis and Discussion

Appellant=s sole issue on appeal is whether the trial court abused its discretion in admitting the out-of-court statements of appellant=s wife and older son. Improper admission of evidence does not constitute reversible error when the same facts are proved by evidence that did not draw an objection. See Tex. R. App. P. 44.2; Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998). In this case, even if the trial court erred in admitting the out-of-court statements of appellant=s wife and older son, it was not reversible error because the trial court admitted other evidence without objection that proved appellant shot at his family.[1]

First, Officer Towns testified, without objection, that appellant blurted out, AI just shot at them because I was pissed.@ Second, although both officers testified as to the older son=s statement from the minivan that appellant had shot at the family, appellant failed to timely object when Officer Towns testified to the son=s statement. At trial, Officer Towns testified immediately before Officer Rowan testified. The following exchange occurred:

State: Now, after the driver had said something, did he [appellant=s son] just interject or was he spoken to?

Officer Towns: No. After the driver had asked B after the driver had told us that B that they had called the police and that was her husband, I asked what happened. And the front passenger stated that C

Defense Counsel: Objection B

Officer Towns: AThat=s my dad. He shot at us.@

Court: Overruled.

State: Repeat that. What did he say?

Officer Towns: He said, AThat=s my dad, he shot at us.@

State: Did he point at B

Officer Towns: He pointed at his dad.

State: He said what now?

Officer Towns: AHe shot at us.@ And I said, AHow did he shoot at you?@ He said, AWith a gun.@ I said, AWhat kind of gun?@ He said, AA rifle.@ I said, AWhere is the rifle at?@ He said, AIt=s in the house.@ And at that point we moved the scene over to the house.

State: I=ll stop you there.

Defense Counsel: Judge, the defense requests a running objection on the basis of hearsay for all the statements allegedly made by the wife and the son at this time.

Court: You may have your objection.

After the trial court overruled appellant=s first hearsay objection, appellant did not timely object when the State twice asked Officer Towns to repeat what appellant=s son had said. To timely object, a party must object to the evidence, if possible, before it is actually admitted. Ethingtonv. State, 819 S.W.2d 854, 858B59 (Tex. Crim. App. 1991). If this is not possible, then the party must object as soon as the objectionable nature of the evidence becomes apparent and must move to strike the objectionable evidence that already has been admitted. Id. Although counsel may utilize a running objection to satisfy the requirement that counsel object to inadmissible evidence every time it is offered, the running objection still must be timely. Id.

Here, after the trial court overruled appellant=s first hearsay objection, the State repeated the same question twice, and Officer Towns testified in detail as to the older son=s statements, without any objection from appellant. Although appellant eventually asserted a running objection, he did not do so until after Officer Towns had testified as to the older son=s statements and after the State had told its witness, AI=ll stop you there.@ The objectionable nature of the evidence was apparent from the State=s question, ARepeat that. What did he say?@and thus appellant=s running objection came too late. Moreover, even after the objectionable nature of the evidence became apparent, appellant did not move to strike it. See id. The standard set by our high court for the timely assertion of objections is quite demanding and most unforgiving. See Lagrone v. State, 942 S.W.2d 602, 617B18 (Tex. Crim. App. 1997) (holding that after-the-fact objection was untimely where appellant=s counsel objected after prosecutor had spoken only four words following the testimony in question). Applying this standard to the testimony and objection now before us, we must conclude that appellant failed to preserve error because he did not make a timely objection and because he did not move to strike this testimony by Officer Towns. See Tex. R. App. P. 33.1; Lagrone, 942 S.W.2d at 617B18; Ethington,819 S.W.2d at 858B59.

 III.  Conclusion

Appellant=s older son=s statement and appellant=s own statement were admitted without objection. This testimony showed that appellant shot at his family. Therefore, even if the trial court erred by elsewhere admitting statements to this effect, this error was harmless because the same facts were admitted in evidence
without objection. See Leday, 983 S.W.2d at 717. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Opinion filed December 31, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Appellant complains that the trial court permitted the officers to testify that appellant=s wife and appellant=s son told the officers that appellant fired a gun at the minivan they occupied. However, appellant does not complain of the admission of a specific statement by his wife, and there is no out-of-court statement in the record in which appellant=s wife stated appellant shot at the minivan. Appellant does not refer to Officer Rowan=s testimony, and the record shows that neither officer testified that appellant=s wife said appellant had shot at the minivan. Rather, the only testimony in the record approximating such a statement is Officer Rowan=s testimony that appellant=s wife stated that, while she was driving the minivan, appellant=s daughter yelled, AHe is going to shoot at us.@ Nonetheless, these issues are not material to our holding because, assuming arguendo that the trial court erroneously admitted statements by appellant=s wife and son that appellant fired a gun at them, the same facts were proved by other evidence admitted without objection.