Eustacio Rodriguez v. The State of Texas--Appeal from 409th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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EUSTACIO RODRIGUEZ, ) No. 08-02-00504-CR

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Appellant, ) Appeal from

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v. ) 409th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20020D00634)

MEMORANDUM OPINION

Eustacio Rodriguez appeals his conviction for robbery, enhanced by two prior felony convictions. After finding Appellant guilty, a jury found the enhancement paragraphs true and assessed punishment at life imprisonment. We affirm.

FACTUAL SUMMARY

On May 17, 2001 at approximately 4:15 p.m., Ana Laura Martinez drove to the McDonald s located in downtown El Paso. She pulled into the drive-thru lane and waited after placing her order because there was a car in front of her. As she waited with her window down, Appellant approached her and said he had a gun in the bag he was holding. He threatened to hurt Martinez if she did or said anything. Martinez agreed to do what he said and she asked him to not hurt her. Appellant got into the driver s side and pushed Martinez into the passenger seat. A McDonald s employee, Eliacim Hernandez, watched Appellant get into the car and he could see that Martinez had a frightened look on her face.

Martinez was afraid that Appellant was going to kill her. She tried to climb out of the car through the passenger door, but Appellant grabbed her by the hair. While struggling to get away, Martinez threw her purse through the open car door. She got her feet out of the car but Appellant continued to hold her by the hair. Appellant began driving away and accelerated, with Martinez still struggling to get loose. Martinez finally freed herself, fell to the pavement, and began yelling for help. As a result of her fall, Martinez suffered injuries to her head, face, knees, arms, and hands. A McDonald s employee, Araceli Hernandez, saw Martinez lying on the pavement and bleeding from the face and called 911. Three other McDonald s employees chased after Appellant who had been forced to stop at a red traffic light. In an effort to force the other cars to move out of his way, Appellant drove into the vehicles next to and in front of him. Julio Carranza, a McDonald s employee, jumped into the passenger side of the vehicle and fought with Appellant to force him to stop the car. Appellant drove a short distance and ran a red light before crashing into a light pole. He initially ran from the car, but then began walking because he was unaware that Carranza was following him. Carranza and the other McDonald s employees chased him down and prevented him from leaving before police arrived. Police officers then took Appellant into custody.

A grand jury indicted Appellant for aggravated kidnapping and robbery. The robbery count alleged that Appellant, while in the course of committing theft and with the intent to maintain control of property, intentionally and knowingly threatened and placed Martinez in fear of imminent bodily injury and death. At trial, the State dismissed the aggravated kidnapping count and proceeded on the robbery count. The jury found Appellant guilty of robbery as alleged in the indictment.

THE COMPLAINANT S INJURIES

In Point of Error One, Appellant contends that the trial court abused its discretion by admitting evidence of Martinez s injuries. He argues that the evidence was not only irrelevant but also substantially more prejudicial than probative.

Immediately prior to the beginning of the State s case in chief, Appellant urged a motion in limine pertaining to the introduction of any testimony regarding the complainant s injuries or medical treatment. He argued such evidence was irrelevant since the State had not alleged that he had caused bodily injury but had only alleged that he placed Martinez in fear of imminent bodily injury and death. He also asked for a running objection and a limine instruction. The prosecutor responded that the evidence was relevant to the allegation that Appellant placed Martinez in fear of imminent bodily injury and death. The trial court denied Appellant s motion and instructed him to lodge his objection in front of the jury. The court also denied the request for a general running objection, specifying that it would be granted if he requested it and only with respect to medical evidence.

The State maintains that Appellant has waived error because he did not continue to object each time evidence was offered on the subject. We agree. With respect to the medical records, Appellant made a timely and specific objection that the records were irrelevant to the charge against him because he had not been accused of causing bodily injury. The trial court overruled this objection. The State offered into evidence seven photographs of Martinez, depicting her numerous injuries. Appellant objected to the introduction of these photographs on the ground that they were irrelevant and more prejudicial than probative. Appellant also objected to the testimony of the State s first witness, Officer Miguel Contreras, regarding his observation of Martinez s injuries. The trial court overruled his objections and granted Appellant s request for a running objection to testimony regarding injuries. However, Appellant did not object when other witnesses, including Martinez, testified about her injuries and he did not request that his running objection be extended to these witnesses.

As a prerequisite to presenting 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, and the trial court ruled on the request, objection, or motion. Tex.R.App.P. 33.1(a)(1) and (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999). Further, a party must continue to object every time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.--El Paso 1994, pet. ref d); Tex.R.App.P. 33.1. Error in the admission of evidence is cured when the same evidence is admitted elsewhere without objection. Ethington, 819 S.W.2d at 858; Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984). There are two exceptions to the requirement that a party object each and every time inadmissible evidence is offered: (1) a running objection, or (2) an objection made outside the presence of the jury to all the testimony he deemed objectionable as permitted by Rule 103(a)(1). See Ethington, 819 S.W.2d at 858-59 (discussing similar provision in former Rule 52(a) of Rules of Appellate Procedure); Gillum, 888 S.W.2d at 285.

Here, Appellant did not request a Rule 103(a)(1) hearing but he did make a running objection to the testimony of the State s first witness. Appellant never renewed his request for a running objection when other witnesses testified on the same subject. A running objection when requested by defense counsel and granted by the trial court does not preserve error when another witness testifies to the same matter without objection. Scaggs v. State, 18 S.W.3d 277, 291 (Tex.App.--Austin 2000, pet. ref d); see Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex.Crim.App. 1989); Goodman v. State, 701 S.W.2d 850, 863 (Tex.Crim.App. 1985), overruled on other grounds, Hernandez v. State, 757 S.W.2d 744, 751-52 n.15 (Tex.Crim.App. 1988); White v. State, 784 S.W.2d 453, 458-61 (Tex.App.--Tyler 1989, pet. ref d). Because Appellant waived his complaint by failing to object each time the challenged evidence was offered, we overrule Point of Error One.

LESSER INCLUDED OFFENSE

In Point of Error Two, Appellant contends that he trial court erred by failing to instruct the jury on the lesser-included offense of theft. To determine whether he was entitled to a charge on the lesser-included offense, we apply a two-pronged test. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993); Avila v. State, 954 S.W.2d 830, 842 (Tex.App.--El Paso 1997, pet. ref d). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Rousseau, 855 S.W.2d at 672; Avila, 954 S.W.2d at 842. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau, 855 S.W.2d at 672; Avila, 954 S.W.2d at 842. The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994); Avila, 954 S.W.2d at 842. Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992); Avila, 954 S.W.2d at 842. An accused is guilty only of a lesser-included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to different interpretations, one of which rebuts or negates the crucial element. See Ramirez v. State, 976 S.W.2d 219, 227 (Tex.App.--El Paso 1998, pet. ref d). That the jury may disbelieve crucial evidence pertaining to the greater offense is not sufficient to warrant the submission of the lesser-included offense submission to the jury; there must be some evidence directly germane to the lesser-included offense to warrant such submission. See Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997).

The first prong of the test is satisfied because theft is a lesser-included offense of robbery. Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); James v. State, 774 S.W.2d 418, 420 (Tex.App.--Dallas 1989, pet. ref d). Turning to the second prong, there must be evidence which would permit the jury to rationally find that if Appellant is guilty, he is guilty only of the lesser offense. Robbery by threats, as alleged in this case, is theft with the added element that the defendant placed the complainant in fear of imminent bodily injury and death. See Tex.Penal Code Ann. 29.02(a)(2)(Vernon 2003). Consequently, there must be evidence from which the jury could conclude that Appellant did not place the complainant in fear of imminent bodily injury and death. Martinez specifically testified that she feared the worst was going to happen and that Appellant was going to take her somewhere and kill her. Martinez was so afraid that she fought to get away from Appellant and jumped out of the moving car. One of the McDonald s employees clearly observed fear on Martinez s face when Appellant got into the car.

In support of his argument, Appellant argues that he twice told Martinez he did not want to hurt her, she did not actually see a gun, she fought Appellant in an apparent attempt to prevent him from taking her car, and she struck him when he grabbed her hair. The fact that Martinez may have struggled and fought with Appellant when he attempted to get into her car and afterwards does not negate or rebut her testimony that she also feared he was going to take her somewhere and either hurt or kill her. Because there is no evidence that Appellant is guilty only of theft, the trial court did not err in refusing to charge the jury on the lesser included offense of theft. Point of Error Two is overruled. Having overruled both points of error, we affirm the judgment of the trial court.

July 29, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)