TIMOTHY BOONE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 19, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00814-CR
No. 05-07-00815-CR
............................
TIMOTHY BOONE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-19449-IU, F05-19451-U
.............................................................
MEMORANDUM OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Wright
        Timothy Boone appeals his convictions for aggravated robbery. After pleading guilty before the jury, the jury assessed punishment at 17 years' confinement in each case. In two issues, appellant contends the trial court erred by admitting certain evidence during the punishment phase of his trial. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We overrule appellant's issues and affirm the trial court's judgments.
        In his first and second issues, appellant contends we must reverse his conviction because the trial court overruled his objections to certain punishment evidence. In particular, appellant contends the trial court erred by allowing one of his victims, Jacob Cross, to testify that he would not feel safe if appellant were released from custody. Additionally, appellant complains about the admission of a letter notifying appellant's mother about a disciplinary hearing to discuss an “extremely serious” offense in which appellant was “causing disorder” while “under the influence of [an] unknown substance.”
        During punishment, both the State and the defense may offer evidence as to “any matter the court deems relevant to sentencing.” See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008). Admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy. Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006). Relevancy, in the context of punishment, is different than that contemplated by evidence rule 401 because unlike the guilt/innocence phase where “facts of consequence” are narrowly drawn by the applicable statutes, there are no discrete factual issues to be determined at punishment. See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). Rather, determining what is relevant should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Ellison, 201 S.W.3d at 719. In making this determination, the trial court has broad discretion, and its ruling should not be reversed on appeal absent a clear abuse of discretion. Richards v. State, 932 S.W.2d 213, 215 (Tex. App.-El Paso 1996, pet. ref'd).
        Appellant first complains about Jacob Cross's testimony that he would not feel safe if appellant were released from custody. When, as here, a defendant applies for community supervision, the trial court may reasonably deem any character trait that pertains to the defendant's suitability for community supervision to be a relevant matter for the sentencer to consider. Sims v. State, 2008 WL 2596950, at * 3 (Tex. Crim. App. 2008); Ellison, 201 S.W.3d at 722. Cross's opinion about appellant's dangerousness is relevant because it pertains to appellant's suitability for custody. To the extent appellant suggests the admission of the Cross's testimony violated rule 701, appellant did not object at trial on that basis. Thus, he has failed to preserve that issue for our review. See Tex. R. App. P. 33.1. Finally, although appellant objected that Cross's testimony “invades the province of the jury,” such an objection is no longer valid. See Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992) . We overrule appellant's first issue.
        Appellant next complains about the admission of a disciplinary letter from appellant's school. According to appellant, admission of the letter violated his (1) due process rights because there was “no evidence from any source from which it could be rationally inferred that the defendant had any criminal responsibility for that extraneous misconduct,” and (2) “sixth amendment right . . . to confrontation of its contents.” However, at trial, appellant objected to the admission of the letter only because it was not relevant. Because appellant's complaints regarding violation of his due process and confrontation rights do not comport with his objection at trial, we conclude appellant has failed to preserve this issue for our review. See Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2872 (2008).
        Similarly, to the extent appellant argues admission of the letter was unfairly prejudicial, we likewise conclude appellant failed to preserve error. As the Texas Court of Criminal Appeals explained in Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998), to appeal the lack of a balancing test under rule 403, an appellant must (1) ask the trial court to conduct that test and (2) object when the trial court failed to do so. Id. at 395. In this case, the record shows appellant did not ask the trial court to conduct a balancing test under rule 403 or object when it failed to do so. Consequently, we conclude that, as with the appellant in Jones, appellant has not preserved for our review his argument that admission of the letter was unfairly prejudicial. We overrule appellant's second issue.         Accordingly, we affirm the trial court's judgments.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
 
070814F.U05