Makala D. Bradley v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00185-CR
______________________________
MAKALA DIANNE BRADLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 32867-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Makala Dianne Bradley was caught shoplifting about $158.00 of goods from Wal-Mart. Bradley pled "true" to the two prior theft convictions used as enhancements and guilty, without a negotiated plea agreement, to theft--habitual. See Tex. Penal Code Ann. 31.03 (Vernon Supp. 2006). She elected to have the jury assess her punishment, which it assessed at twenty months' confinement in a state jail facility. The court sentenced Bradley accordingly.

Bradley raises one issue on appeal: that the trial court erred in allowing the State, at the punishment phase, to cross-examine Bradley's mother about an unadjudicated theft (hereafter, "the Elks Lodge theft"). (1)

Extraneous Crimes and Bad Acts

At the punishment phase, the State or defendant may introduce evidence of any matter the court deems relevant to sentencing,

including but not limited to . . . his general reputation, his character, an opinion regarding his character, . . . and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he 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. Ann. art. 37.07, 3(a)(1) (Vernon 2006). If such evidence is admitted, the jury must be instructed that it may only consider, in assessing punishment, extraneous crimes and bad acts that the State has proven beyond a reasonable doubt. (2) See Huizar v. State, 12 S.W.3d 479, 482 (Tex. Crim. App. 2000).

The Trial Objection

In what was essentially a verbal motion to suppress on the day of trial, Bradley noted that the State had failed to subpoena any witnesses who could prove up the Elks Lodge theft and objected to the State's introduction of documentary evidence, in violation of Crawford, (3) concerning the matter. The State agreed that it could not introduce statements from nontestifying witnesses, but asserted that it would be entitled to question the defendant about the matter should the defendant take the stand, since her character was at issue in sentencing. Indeed, the State stated that the cross-examination of the defendant would be the "only time that I would bring this up." Bradley then extended her objection to include the questioning of the defendant as more prejudicial than probative. The court overruled Bradley's objection, but noted that Bradley could renew the objection, and the court would reconsider the matter, "at the time the State does try to go into that." Bradley never objected during the State's questioning of Bradley's mother about the Elks Lodge theft. Thereafter, Bradley's attorney himself questioned Bradley about the Elks Lodge theft on direct examination, the State questioned Bradley on the Elks Lodge theft on cross-examination without objection, and Bradley's attorney revisited the issue on re-direct.

Preservation of Error

To preserve error for appeal in the admission of evidence, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex. R. App. P. 33.1; Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Texas law generally requires a party to continue objecting each time inadmissible evidence is offered. See Ethington, 819 S.W.2d at 858. The two exceptions to this rule are (1) where the party asks for and receives a running objection and (2) where the party requests a hearing outside the presence of the jury. See Tex. R. Evid. 103(a)(1); Martinez, 98 S.W.3d at 193; Ethington, 819 S.W.2d at 858; Rawlings v. State, 874 S.W.2d 740, 742 (Tex. App.--Fort Worth 1994, no pet.).

We find that Bradley failed to preserve error as to the questioning of her mother regarding the Elks Lodge theft. Bradley's pretrial objection was to only (1) the introduction of documentary evidence on the Elks Lodge theft without live witnesses; and (2) the questioning of the defendant herself on the matter. Bradley never objected--either pretrial or during trial--to the questioning of Bradley's mother, and we are not inclined to view her limited objection that generally. See Martinez, 98 S.W.3d at 193. For failure to object to the questioning of Bradley's mother, Bradley has not preserved error; she leaves us with nothing to review.

We overrule the point of error and affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: May 8, 2007

Date Decided: May 16, 2007

 

Do Not Publish

1. We note that, in one statement of the issue in her brief, Bradley states that she is complaining about the questioning of "Appellant" rather than Appellant's mother. The State questioned both women. Nonetheless, Bradley did not present any argument in support of a point of error regarding the questioning of herself; she presented only argument concerning the questioning of her mother. If a point of error is inadequately briefed, we will not address it. Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992); see Tex. R. App. P. 38.1; Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). Thus, we address only that issue developed in the brief: the questioning of Bradley's mother.

2. Bradley's punishment-phase jury was given a reasonable doubt instruction. Bradley does not dispute the propriety of the instruction.

3. Crawford v. Washington, 541 U.S. 36 (2004).