RALPH ANTONIO COURET,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00668-CR
RALPH ANTONIO COURET,FROM A DISTRICT COURT
 
                APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
                APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES MCCLUNG, BAKER, AND KINKEADE
OPINION BY JUSTICE McCLUNG
APRIL 19, 1989
        Appellant appeals his conviction for burglary of a building. After finding the enhancement paragraph true, the court assessed punishment at forty years' confinement. In two points of error, appellant contends that the trial court erred (1) in allowing in evidence of an extraneous offense; and (2) in admitting hearsay testimony. We affirm the trial court's judgment.
        The evidence showed that on December 27, 1987 at 6:00 a.m., two Dallas police officers responded to a silent burglar alarm call at a warehouse at 2702 Chalk Hill Road, Dallas. Upon arriving the officers discovered that the back door had been pried open. Backup officers where called and four officers entered the warehouse. Appellant was discovered hiding between a pile of wood and the wall inside the warehouse. Searching him at the time of his arrest, the officers discovered a hypodermic needle in appellant's pocket. A crowbar and a screwdriver were found inside the
building some time after appellant's arrest. A soft drink machine inside the warehouse had been damaged.
        The manager of the warehouse testified that on the last working day before the Christmas holidays, Wednesday, December 23, 1987, the rear door to the plant did not have pry marks on it, nor was the soft drink machine damaged. He further testified that on the morning the officer brought appellant out of the building, he recognized appellant as an ex-employee. At the time of the burglary, the building was not open to the public and appellant entered the building without consent. The screwdriver and crowbar found inside the warehouse were not the property of the plant.
                In his first point of error, appellant asserts that the trial court erred in admitting testimony concerning a hypodermic needle found in appellant's possession. The existence of an extraneous offense may be proved to show the context of the alleged criminal act. This evidence is permitted to show the circumstances of the criminal act. Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).         In determining if the State was entitled to show the circumstances surrounding appellant's arrest, the appellate court is constrained to pass on the claimed error by determining if the trial court clearly abused its discretion in allowing the evidence to be admitted. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). As in Maddox, the evidence admitted was directly connected with and contemporaneous to appellant's arrest. The hypodermic needle was taken from appellant's person at the scene of the burglary at the time of his arrest. No error is shown in the admission of this evidence. Appellant's first point of error is overruled.        
        In his second point of error, appellant contends that the trial court erred in admitting hearsay testimony regarding damage done to a Coke machine. Appellant's complaints centers around the following :
            (By the State) Subsequent to the arrest of the defendant did you also learn that the Coke machine inside the building had been damaged?
 
    (Witness) Yes, I did.
 
    (Defense) I object to getting into extraneous offenses          and in addition to that no basis for this testimony subsequent to so on and so forth. It's not testimony by him that he in fact observed anything or saw anything. I object to getting into it at this time.
 
    (The State) It's obviously not an extraneous offense because part of my burden of proof is to show the intent to commit theft within the building.
 
    (The Court) Overrule the objection.
 
    (The State) Did you?
 
    (Witness) What was the question?
 
    (The State) Did you learn that the Coke machine inside the building had been damaged?
 
    (Witness) Yes
 
    (The State) What kind of damage was done?
 
    (Defense) I object to his testifying as to what kind of damage unless he's going to show he saw it or had something to do with it.
 
    (The Court) Sustained.
 
    (The State) Did you personally examine the Coke machine or did the manager of the premises come at that time and examine the interior of the building?
 
    (Witness) The manager.
 
 
The record does not reflect that appellant objected to the testimony on the basis of hearsay.
        Error presented on appeal must correspond to the objection raised before the trial court. Nelson v. State, 607 S.W.2d 554, 555 (Tex. Crim. App. 1980). Because the objection at trial is not the same as urged on appeal, appellant has not properly preserved his argument for review. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim. App. 1982).         Further, the manager of the premises was called by the State and testified that he examined the Coke machine when appellant was arrested and the machine had been damaged by someone after the establishment had closed for the Christmas holidays. Had error, if any, been properly preserved, the error would have been harmless based upon the manager's testimony. Appellant's second point of error is overruled.
        The judgment is affirmed.
 
                                                          
                                                          PAT MCCLUNG
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00668.F
 
 
 
 
 
File Date[01-02-89]
File Name[880668]