KY RODA v. THE STATE OF TEXAS--Appeal from 23rd District Court of Brazoria County

NUMBER 13-05-039-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

KY RODA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 23rd District Court

of Brazoria County, Texas.

  MEMORANDUM OPINION [1]

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Justice Castillo

A jury convicted appellant, Ky Clarence Roda of possession of a controlled substance and possession of chemicals with intent to manufacture a controlled substance.[2] The trial court assessed punishment at eighteen years' confinement in the Texas Department of Criminal Justice Institutional Division. By three issues, Roda asserts that the trial court reversibly erred in admitting extraneous offense evidence and limiting cross-examination. We affirm.

I. Relevant Facts

Executing a search warrant, law enforcement arrested Roda in Angleton and charged him with possession of (1) a controlled substance, namely methamphetamine, and (2) chemicals allegedly used to manufacture methamphetamine. Frank Acosta, Tory Meeks, Dorren Vannote, and two children were present at the time Roda was arrested. Meeks was charged with possession of methamphetamine, as was William Clark.[3] Both Meeks and Clark testified for the prosecution at the trial.

Clark testified that Roda told him on a prior occasion how to manufacture methamphetamine and that he had seen Roda make drugs or methamphetamine. Roda did not object to the testimony of Clark. Meeks testified that she was aware of Roda's connection to methamphetamine use and manufacture. Roda did not object to her testimony. Roda attempted to adduce testimony from Meeks regarding the identity and procurement of her attorney, proffering that her motive to testify was compromised by the manner in which she obtained counsel. The prosecutor objected, and Roda argued bias as grounds for the line of questioning. The trial court sustained the State's objection.

The last witness for the prosecution, Wayne Flippen, also testified regarding Roda's manufacture of methamphetamine. Roda objected to Flippen's testimony.[4] The trial court overruled the objection and granted a running objection for all of Flippen's testimony.

II. Issues Presented

By his first and second issues, Roda maintains that the trial court abused its discretion and committed reversible error by allowing Flippen to testify as to extraneous evidence to show character conformity. Roda asserts that the ruling violates rules 403 and 404(b) of the Texas Rules of Evidence. Tex. R. Evid. 403, 404(b). In his third issue, Roda maintains that the trial court erred in limiting the cross-examination of Meeks regarding the prosecutor's interference in Meek's choice of attorney to show bias and motive. The State responds that the trial court did not abuse its discretion, and Roda (1) failed to preserve error, and in the alternative, (2) has not shown harm in the trial court's rulings.

III. Preservation of Error

As a prerequisite to presenting a complaint for appellate review, the record must show the following:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex. R. App. P. 33.1(a). In Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)), the court held:

All a party has to do to avoid the forfeiture of a complaint on appeal is to 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 trial court is in a proper position to do something about it."

Keeter, 175 S.W.3d at 760. The record must show that the complaining party gave the trial court an opportunity to rule on the complaint by making the complaint to the trial court in a specific and timely objection. Tex. R. App. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). The objection must be made at the earliest possible opportunity. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Further, the law in Texas requires a party to continue to object each time inadmissible evidence is offered. Martinez, 98 S.W.3d at 193. Two exceptions exist where counsel either (1) obtains a running objection, or (2) requests a hearing outside the presence of the jury. Id.

The record reveals that Roda obtained a running objection as to the testimony of Flippen. However, Roda did not object to any of the testimony of Clark. Like Flippen, Clark testified as to the essential elements of the offense. Error is not preserved if the same evidence is admitted without objection elsewhere in the trial. Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim App. 1991). Further, Roda raised no rule 404(b) objection at trial to the testimony of Clark.

Moreover, even if the evidence was admitted over a proper objection, it is harmless if the same evidence is admitted without objection and proves the same fact. Hammons v. State, 856 S.W.2d 797, 802 (Tex. App.BFort Worth 1993, pet. ref'd). Any alleged error in the admission of evidence is cured if the same evidence is admitted elsewhere in trial without objection. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Because Roda did not object to the substantially similar testimony of Clark, Roda did not preserve error.[5] We overrule Roda's first and second issues.

IV. Limiting Cross-Examination

Roda maintains in his third issue that the trial court abused its discretion when it sustained the State's objection to cross-examination of Meeks as to the prosecutor's involvement in Meeks' choice of attorney. The State responds that the trial court did not abuse its discretion in limiting the cross-examination of Meeks.

We review the trial court's ruling for an abuse of discretion. See Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996) (noting that "the trial judge has the discretion to limit cross-examination"); Crenshaw v. State, 125 S.W.3d 651, 654-55 (Tex. App.BHouston [1st Dist.] 2003, no pet.); Munoz v. State, 763 S.W.2d 30, 32 (Tex. App.BCorpus Christi 1988, pet. ref'd). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles, or when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). The trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid, inter alia, harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997). Thus, the trial court exceeds its discretion only when it prohibits a defendant from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. Id. The record reads as follows:

[Defense counsel]: And he made arrangements for you to get a lawyer, did he not?

[Meeks]: Correct.

[Defense counsel]: And did he tell you, you need to get rid of the lawyer that you had?

[Prosecutor]: I'm going to object to that as not being relevant, Judge.

The Court: Sustain.

[Defense counsel]: So, he madeBwell, you had another lawyer when you come up here Monday, didn't you?

[Prosecutor]: Judge, I'm going to object to that's as not being relevant.

The Court: What's your relevance?

[Defense counsel]: Goes to motive and bias, Your Honor, and why she's here to testify.

The Court: I'll sustain the objection.

There is no further similar line of questioning as to Meeks' attorney. There is no offer of proof to show what the intended testimony would have been. The essence of what the testimony would reveal was not apparent from the context of the questions and answers. See Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986); Garza v. State, 846 S.W.2d 936, 939 (Tex. App.BHouston [1st Dist.] 1993, pet. ref'd). Likewise, the record does not reveal evidence having any tendency to make the existence of any fact that was of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. We conclude the trial court did not abuse its discretion in limiting the cross-examining of Meeks because the ruling lies within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391. We overrule Roda's third issue.

IV. Conclusion

Having overruled all three issues, we affirm the verdict of the trial court. ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 25th day of May, 2006.

[1] See Tex. R. App. P. 47.1, 47.4.

[2] See Tex. Health & Safety Code Ann '_ 481.115(1) (Vernon 2003); 481.124(a) (Vernon Supp. 2005). The indictment alleged that, on or about April 3, 2003, Roda did then and there intentionally and knowingly (1) possess a controlled substance, namely methamphetamine of at least 400 grams, and (2) possess anhydrous ammonia or an immediate precursor, with intent to unlawfully manufacture a controlled substance, namely methamphetamine, constituting a "criminal episode" as defined in section 3.01 of the Texas Penal Code. Tex. Pen. Code Ann. ' 3.01 (Vernon 2003).

[3] William Clark was not at the Angleton location at the time the search warrant was executed; however, he was subsequently arrested at a different location.

[4] The court overruled the objection and gave Roda a running objection that under (1) Rule 404 the evidence was not admissible, and (2) Rule 403, even if relevant, the evidence was more prejudicial than probative. Tex. R. Evid. 403, 404(b). Rule 404(b) of the Texas rules of evidence provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). It may, however, be admissible for other 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. Tex. R. Evid. 404(b); see Hernandez v. State, 176 S.W.3d 821, 822 (Tex. Crim. App. 2005). Even if there had been a proper rule 404(b) objection, the notice requirement found in the rule does not relate to the substantive admissibility of the evidence. Hernandez,176 S.W.3d at 825.

[5] Rule 403 of the Texas Rules of Evidence also provides that relevant evidence may be excluded if its probative value does not outweigh its prejudice. Tex. R. Evid. 403. Assuming without deciding that the rule 404(b) testimony of Flippen, Meeks, and Clark was prejudicial, Roda did not raise any rule 403 objections at trial. When a party attempts to adduce evidence of "other crimes, wrongs or acts," in order to preserve error on appeal, the opponent of that evidence must object in a timely fashion. Optimally, the opponent should object that such evidence is inadmissible under rule 404(b). Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991).