Danny Leon Garner v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-96-267-CR

DANNY LEON GARNER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 31300

O P I N I O N

Danny Leon Garner was convicted of two counts of Aggravated Sexual Assault with a Deadly Weapon and one count of Burglary of a Habitation with a Deadly Weapon. Tex. Penal Code Ann. 22.021 (Vernon 1994 & Supp. 1997). He pled guilty, and the jury assessed punishment at life in prison plus a $10,000 fine. On appeal, Garner argues that the trial court erred in allowing evidence of a prior felony conviction and that the State committed error by questioning about inadmissable evidence. We will affirm.

In his first point, Garner complains that the trial court erred in allowing evidence of a prior felony conviction because it was remote and because it unfairly prejudiced him. We find that this complaint was waived. Rule 33.1(a) of the Rules of Appellate Procedure states that to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. Tex. R. App. P. 33.1(a). It is also necessary for the complaining party to obtain a ruling on his request, objection, or motion. Id; Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). In addition, the point of error must correspond to the objection made at trial. Id.; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991), cert. denied, 502 U.S. 870, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991). An objection stating one legal theory may not be used to support a different legal theory on appeal. Broxton, 909 S.W.2d at 918; Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986).

Here, when evidence of the prior felony conviction was offered, Garner objected only on hearsay grounds, and then affirmatively stated no objection when the document proving up the conviction was offered. The objection was as follows:

STATE: Was the Defendant convicted in the state of Virginia for this offense?

DEFENSE: Objection, Your Honor, that s completely hearsay unless he has the original judgments with him.

COURT: I ll sustain unless you have something else to tie it to, Mr. Hanna.

STATE: And you arrested him (Garner) for the offense of breaking and entering?

MARTINDELL: That s correct.

STATE: And that s a felony in the state of Virginia?

MARTINDELL: Yes, it is.

STATE: Judge, we re going to offer State s Exhibit No. 69. I ve shown that to counsel.

DEFENSE: No objection.

COURT: It s admitted.

Exhibit No. 69 was the sentencing order from Virginia which Hanna summarized for the jury without objection. Basically, the report [states] he was convicted of the offense in question of breaking and entering under Section 18.2-91 of the Virginia Code and was convicted of that felony offense and placed on probation for a period of one year. Because the objection made (hearsay) does not comport with the point on appeal (remoteness and prejudice), and because Garner did not object when the exhibit was tendered, we hold that the complaint was waived and nothing is presented for our review. See Massey v. State, 933 S.W.2d 141, 157 (Tex. Crim. App. 1996); Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996). Point one is overruled.

In his second point of error, Garner complains that the State of Texas committed reversible error by questioning on an objectionable and inadmissible written statement by the Appellant. The exact nature of his complaint is unclear. From the arguments made in Garner s brief, we assume this is a claim of prosecutorial misconduct. Regardless of his exact complaint, any error by either the prosecution or the court with regard to the written statement was waived.

As noted, the State called Officer Martindell to testify to a prior felony conviction in Virginia. Martindell testified that he arrested Garner at the scene, Mirandized him, and asked some questions. He further testified that Garner waived his rights and gave a written statement. The evidence was offered and objected to as follows:

COURT: Have you had a chance to look at that now, [counsel]?

DEFENSE: Yes, sir.

COURT: Do you have an objection?

DEFENSE: Judge, I have an objection based upon this. We understand that any type of documents outside the State of Texas can be introduced in their duplicate form. But this particular duplicate copy does not have a certified or certification or verification stamped on it and I m going to object to it based on the fact it s not properly authenticated.

STATE: This is not a court document. This is not a document filed, Judge, in the State of Virginia as a public record.... Judge, I can do [it] another way. If it s a problem, I can do it another way.

COURT: I just wanted to discuss it.

DEFENSE: You can say what that is.

COURT: Objection sustained.

DEFENSE: It s already entered non-responsively. The jurors already heard it.

COURT: Any other objection?

STATE: No.

STATE: What did he tell you happened in that written statement?

MARTINDELL: He said he [was] walking down the street---

STATE: Read it exactly.

DEFENSE: Judge, I m going to object to the reading of the instrument that s been objected to and sustained. I think he has a right to testify about the contents of it but not read it verbatim.

COURT: Sustained.

The witness then stated his version of the contents of the document without further objection.

On appeal, Garner argues that by asking Martindell to read it exactly, the prosecutor attempted to circumvent the trial court s earlier ruling. Garner did not object to the prosecutor s conduct, nor to the court s allowing the evidence to be paraphrased. Rather, the objection was to the witness reading of a document that had been objected to and sustained.

To avoid the forfeiture of a complaint on appeal, the complainant must let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the court is in a position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). We do not find that Garner s complaint was sufficiently conveyed to the court. When a party fails to effectively communicate his desire, a reviewing court should not hesitate to hold that the complaint arising from the event has been lost. Id. It does not appear that Garner attempted to object to any conduct by the prosecution. His objection referred merely to the lack of authentication of the document.

Nevertheless, even if Garner did attempt to object to the State s conduct, once his objection was sustained, he failed to take it to an adverse ruling. To perfect an issue for appeal, an objection is required to inform the trial judge of the basis of the objection and to afford him an opportunity to rule on it. Purtell v. State, 761 S.W.2d 360, 365-66 (Tex. Crim. App. 1988) (quoting Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977)). The proper method of pursuing an objection until an adverse ruling is to (1) object and, if the objection is sustained, (2) request an instruction to disregard, and (3) if an instruction is given, move for a mistrial. Harris v. State, 784 S.W.2d 5, 12 n.4 (Tex. Crim. App. 1989).

The issue is whether Appellant waived his complaint when he deviated from the normal procedure. Tennison v. State 814 S.W.2d 484, 485 (Tex. App. Waco 1991, no pet.). We believe that he did. The objection should afford opposing counsel an opportunity to remove the objection or supply other testimony. Id. This is exactly what was done. Garner objected to a verbatim reading of the confession, the court sustained the objection, and the prosecutor supplied the information in another manner. We find Garner s second point without merit. We overrule point two and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 8, 1997

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