Turner, Jamon Lenard v. The State of Texas

 
AFFIRM; Opinion issued November 8, 2011
 
In The
Court of Appeals
Fifth District of Texas at Dallas
 
............................
No. 05-10-00499-CR
............................
JAMON LENARD TURNER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F08-41747-J
.............................................................
OPINION
Before Justices Morris, O'Neill, and Fillmore
Opinion By Justice Morris
 
A jury convicted Jamon Lenard Turner of aggravated robbery. On
appeal, he presents three issues claiming reversible error because the
evidence against him is legally insufficient, the trial court erred in
failing to redact certain records, and two different jurors served as
foreperson during the guilt-innocence and punishment phases of trial.
Concluding appellant's issues are without merit, we affirm the trial
court's judgment.
Factual Background
On the day of the offense, the complainant Sena Ayatey planned
to buy a used car with cash. He hid $1,000 under the passenger seat of
his parents' van and $900 under the driver's seat. Before the sale was
to take place, Ayatey spent some time with his friend Devaun Baker.
Baker, who had seen the $1,000 cash Ayatey was hiding under the van's
passenger seat, told Ayatey that he knew of a man who would sell him
twenty-two-inch tire rims for $600. Ayatey decided to buy the rims, and
 
he and Baker went in the van to the location of the sale. Baker appeared
to be in contact with the seller as they waited in the parking lot of an
apartment complex. While they were waiting, Ayatey noticed appellant; he
had seen appellant spending time with Baker's twin in the past, but
Baker was not aware that Ayatey knew appellant. Ayatey could see that
appellant had a gun tucked into his waistband. Baker made a phone call
and then told Ayatey they needed to go across the street to a car wash
to meet the seller of the rims.
While they were waiting at the car wash for the supposed seller,
appellant approached the van with the gun. He pointed the gun at
Ayatey's side and told him to give him his cell phone and his money.
Ayatey denied that he had any money, so appellant grabbed his cell
phone. Appellant then walked to the other side of the van, patted down
Baker, then looked in the van's glove compartment and under the
passenger seat. He fled after he found the $1,000 cash under the seat.
Ayatey grabbed a .40 caliber pistol he kept hidden under the
driver's seat of the van and chased appellant into the apartment
complex. He fired his gun into the air two times, hoping appellant would
stop. When Ayatey was unable to locate appellant, he returned to the van
and Baker. The two were approached by police officers, who had been
called to the scene because of the shooting.
Officers reporting to the scene found appellant in an apartment.
They also found Ayatey's cell phone in the room. But they did not find a
 
gun or the money that had been taken from Ayatey. Appellant gave police
a written statement claiming he had stolen the money but found Ayatey's
cell phone on the ground after he had fled from Ayatey. He did not admit
in the statement that he possessed a gun during the offense.
Text messages retrieved from the cell phones of appellant and Baker
indicated that the two had planned the robbery based on Baker's
knowledge that Ayatey possessed what Baker believed to be $2,500 cash in
his car. In the text messages, Baker and appellant agreed to the
location, method, and division of the robbery proceeds. In relevant
part, the two exchanged the following messages: [Baker:]U got
heat
[Baker:] Did u send da pic
[Appellant:]Yea I sum
[Appellant:]Yea I sent it
Other messages retrieved from appellant's phone showed that he was “on
the run” once he was aware police wanted to arrest him for the offense.
 
Discussion
In his first issue, appellant challenges the legal sufficiency
of the evidence showing he used or exhibited a deadly weapon during the
offense. He argues that the only evidence showing he had a gun came from
Ayatey, the gun was never recovered, he never admitted to having a gun
in his written statement, and the text messages exchanged between Baker
and him show he did not plan to use a gun during the robbery. In
reviewing a challenge to the legal sufficiency of the evidence, we
examine the evidence to determine whether any rational trier of fact
could have found the essential elements of the offense beyond a
 
reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.
App. 2005). We review all the evidence in the light most favorable to
the verdict, and assume the trier of fact resolved conflicts in the
testimony, weighed the evidence, and drew reasonable inferences in a
manner that supports the verdict. See Rollerson v. State, 227 S.W.3d
718, 724 (Tex. Crim. App. 2007).
Here, despite appellant's claims to the contrary, Ayatey
maintained that appellant had used a gun during the robbery. Moreover,
when applying common knowledge that sometimes the sender of a text
message sends a second message before the recipient of the messages is
able to respond to the first, the text message conversation between
appellant and Baker may be read to demonstrate that appellant had
planned to be armed with a gun, or “heat,” during the robbery. Deferring
to the jury's credibility determinations, we conclude the evidence is
legally sufficient to support appellant's conviction. We resolve his
first issue against him.
In his second issue, appellant complains about several sexually
explicit text messages retrieved from appellant's phone that were
admitted in the block of text messages offered by the State to show
appellant was on the run from police following the offense. He complains
the messages were not relevant to any issue in the case and should have
been redacted from the admissible text messages. The State responds that
appellant did not raise this objection at the time the messages were
offered into evidence. The record before us supports the State's
position.
 
When the parties initially discussed the sexually explicit
messages out of the presence of the jury, defense counsel stated that
the messages were irrelevant and also inadmissible hearsay. The
prosecutor stated that she would be willing to redact the messages that
did not talk about being “on the run” but asserted that many of the
sexual messages indicated appellant was on the run because he had
committed an offense. At that time, the trial judge stated that she
intended to admit the text messages into evidence when they were offered
and agreed to note appellant's objection.
Later in the trial, however, when the entirety of the text
messages were offered into evidence out of the presence of the jury,
defense counsel objected only that the proper predicate had not been
laid for their admission and that they were hearsay. The trial court
overruled appellant's objections and admitted the text messages into
evidence out of the presence of the jury. The next morning, the State
re-offered the messages in the presence of the jury. Appellant stated
only that he objected to their admission and requested a general running
objection. The trial court overruled appellant's objection, admitted the
evidence, and granted appellant's running objection. Appellant never
requested that the sexually explicit text messages be redacted from the
rest of the text messages.
To preserve any alleged error for appeal, a defendant must make
a specific and timely objection and get a ruling on his objection. In
addition, with two exceptions, Texas law requires a party to continue to
 
object each time inadmissible evidence is offered. The two exceptions
require the defendant either to (1) obtain a running objection, or (2)
request a hearing outside the presence of the jury. See Martinez v.
State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Here, appellant failed
to continue to object specifically that the sexually explicit messages
were irrelevant. In addition, he never requested a running objection on
that basis or asked that they be redacted from the rest of the
admissible text messages. See Footnote 1 Accordingly, he has failed
to preserve his complaint for appeal. See Tex. R. App. P. 33.1(a)(1)(A).
We resolve his second issue against him.
In his third issue, appellant complains reversible error
occurred when the foreperson who served during the punishment phase of
his trial was not the same foreperson who served during the
guilt-innocence phase. Appellant did not object when the trial judge
noted that the jury had changed forepersons, nor did he object when the
trial court accepted the verdict. He now contends the change in
forepersons violated article 36.26 of the Texas Code of Criminal
Procedure, which provides that each jury “shall appoint one of its
members foreman.” Tex. Code Crim. Proc. Ann. art. 36.26 (West 2006)
(emphasis added).
Appellant acknowledges the holding by the court of criminal
appeals in Elizaldi v. State, 519 S.W.2d 881 (Tex. Crim. App. 1975),
that a jury could “certainly” choose another member if the original
foreperson resigned or refused to serve. 519 S.W.2d at 883. He argues,
 
however, that Elizaldi may be distinguished from his case because it is
unclear in that opinion whether the change in foreperson occurred during
guilt-innocence deliberations rather than during the punishment phase of
trial. He asserts that a change in the foreperson during the
guilt-innocence phase “would have resulted in only one foreperson
presiding over both deliberations,” rather than a separate foreperson
for each phase as he had in his case. Obviously, before the jury in
Elizaldi sent out its note, it had a foreperson who had served up to
that point. The jury making the change permitted by the trial court in
that case resulted in a total of two separate forepersons presiding over
the jury, regardless of whether the switch was made in the middle of one
of the phases of trial or between them.
Nothing in article 36.26 prohibits a jury from changing from one
foreperson to another. The jurors in appellant's case were instructed -
without objection - by the trial judge before their deliberations on
punishment that their “first order of business will be to choose a
foreperson. Once you choose a foreperson, you-all will deliberate. . .
.” They did just that. Based on the holding in Elizaldi, we conclude
that no reversible error occurred when the jury switched forepersons for
the punishment phase of trial. We resolve appellant's third issue
against him.
We affirm the trial court's judgment.
 
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100499F.U05
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Footnote 1 Furthermore, appellant never specified for the trial court
 
which of the many text messages were irrelevant based on their sexual
content.
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