CARL DAVID BEAVERS, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00512-CR
CARL DAVID BEAVERS,                                FROM A DISTRICT COURT
        APPELLANT,
v.
THE STATE OF TEXAS,
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, BAKER AND KINKEADE
OPINION BY JUSTICE KINKEADE
JULY 13, 1989
ON RECONSIDERATION ON PETITION FOR DISCRETIONARY REVIEW
        Our opinion of June 6, 1989 is withdrawn and this opinion is substituted as the opinion of the Court.
        Carl David Beavers appeals his conviction for assault. A jury found him guilty and assessed punishment at one year confinement, probated for one year with the stipulation that Beavers serve fifteen days in jail as a condition of probation. Beavers contends that the trial court erred by 1) admitting into evidence his character for violence; 2) allowing the prosecutor to cross examine a defense witness about serving time for embezzlement; 3) allowing the prosecutor to question the complainant about a defense witness's prior bad acts; and 4) allowing the prosecutor to question Beavers as to statements he made to his attorney. We find no error and affirm the trial court's judgment.
        Carl Beavers and his wife Mary Beavers had reconciled after beginning divorce proceedings. On the night in question, both drank substantial amounts of alcohol. While they were having dinner, Carl Beavers began verbally abusing his wife. They returned home and continued arguing. Carl Beavers hit and kicked his wife, then dragged her outside by her hair. The night was very cold and Mary Beavers was wearing only a slip. She tried to break into the house to get her clothes when her daughter arrived. The daughter called the police, then helped Mary Beavers to break open the door and enter the house. Upon seeing his wife enter the house, Carl Beavers pushed her down and hit her daughter. When the police and paramedics arrived, they found Mary Beavers in the house, bloody and bruised. Much of her hair had been pulled out, leaving a big bald spot on the back of her head.
        In his first and second points of error, Carl Beavers maintains that the prosecutor unlawfully injected into evidence Beavers's character for violence and that the witness was not qualified to express an opinion on Beavers's character. At trial, the prosecutor questioned Mary Beavers's daughter as follows:
            [Prosecutor]: Would you consider Carl violent?
 
        [Defense Attorney]: Your Honor, this person is not qualified to make these opinions.
 
            THE COURT: Well, I'll let her state what she knows with personal knowledge.
 
            [Prosecutor]: Based upon your living with your mom and Carl, would you consider Carl a violent person?
 
            [Witness]: Yes I would.
        Carl Beavers's first point of error complains that it was improper for the prosecutor to introduce Carl Beavers's character for violence. Carl Beavers's attorney objected at trial that the witness was not qualified to answer the prosecutor's question. When an appellant's point of error does not comport with his objection at trial, no reversible error is shown. Kirvin v. State, 575 S.W.2d 301, 308 (Tex. Crim. App. 1978). Carl Beavers's complaint to this Court is not the same as his objection at trial. We overrule his first point of error.
        In his, second point of error, Carl Beavers maintains that Mary Beavers's daughter was not qualified to state her opinion of Carl Beavers's character. Texas Rule of Criminal Evidence 701 requires that a lay witness limit his testimony to opinions or inferences which are "rationally based on the perception of the witness." The prosecutor phrased his question in terms of the witness's experiences. The witness had previously stated that she had lived with her mother and Carl Beavers during the summers between her semesters at college. During those times, she testified, she was able to observe the dynamics of their relationship. She related that Carl Beavers drank a great deal. We hold that the witness met the requirements of rule 701 and was qualified to express her opinion of Carl Beavers's character. See Reid v. State, 749 S.W.2d 903, 907 (Tex. App.--Dallas 1988, pet. ref'd). We overrule the second point of error.
        Carl Beavers next contends that the prosecutor's question to defense witness Inman regarding serving time for embezzlement was error. Carl Beavers's attorney did not object to the question or the answer. Carl Beavers claims, however, that the error affected his substantial rights and, therefore, constituted "fundamental" error under Texas Rule of Criminal Evidence 103. Inman had been called by the defense as a fact witness who had seen Carl Beavers and his wife on the night in question. He testified as to Carl Beavers's character in the business community. His testimony was not critical to Carl Beaver's case and did not affect Carl Beavers's "substantial rights." Therefore, any improper questions to Inman did not constitute the type of error which could be redressed by this Court even without objection (previously demominated "fundamental" error.) Carl Beavers waived any complaint regarding plain error by failing to object at trial. Miller v. State, 742 S.W.2d 382, 391 (Tex. Crim. App. 1987); TEX. R. APP. P. 52(a). We overrule the third point of error.
        Carl Beavers's fourth, fifth and sixth points of error concern the prosecutor's questions to Mary Beavers about the defense witness Inman. The prosecutor asked Mary Beavers whether Inman had ever called her from jail. The defense attorney objected twice and the trial judge sustained both objections. The defense attorney never asked for an instruction to disregard, nor did he move for a mistrial. If an objection is sustained but the attorney fails to move for an instruction to disregard, no error is preserved for review. Even if the attorney makes a motion to disregard, if he fails to request a mistrial, any error is waived. Kennedy v. State, 520 S.W.2d 776, 778 (Tex. Crim. App. 1975). Carl Beavers's attorney did not make the requisite motions to preserve error. We overrule the fourth, fifth and sixth points of error.
        In his seventh point of error, Beavers contends that the prosecutor breached the attorney client privilege by asking Beavers on cross-examination whether he told his attorney that he was an alcoholic. When the prosecutor asked the question at trial, the court sustained the defense attorney's objection and instructed the jury to disregard the question. The court also instructed the prosecutor to refrain from asking any more such questions, as per the defense attorney's request. The prosecutor did not question Beavers further along that line. The defense attorney did not ask for a mistrial.
        As the Court of Criminal Appeals stated in Kennedy, 520 S.W.2d at 778, when an objection is sustained and the attorney fails to move for a mistrial, any error is waived. The defense attorney waived error by failing to move for a mistrial. Beavers got all the relief he requested. We
 
 
overrule the seventh point of error and affirm the trial
 
 
court's judgment.
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00512.F
 
 
 
File Date[01-02-89]
File Name[880512]