Gerrardo Diaz v. State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-00-00541-CR

04-00-00542-CR

Gerrardo DIAZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 187th Judicial District Court, Bexar County, Texas

Trial Court Nos. 99-CR-5634, 99-CR-5635

Honorable Raymond Angelini, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 7, 2001

AFFIRMED

A jury found appellant guilty of aggravated assault and assessed punishment at life in prison. In a single issue on appeal, appellant asserts the trial court erred in admitting into evidence a protective order obtained by the complainants' grandmother against the appellant. Because the appellant waived any error, we affirm.

In August 1999, Maria Cole, the grandmother, obtained a restraining order against the appellant. On August 19, 1999, appellant went to Cole's house, and began arguing with the complainants, Sheila and Mildred Diaz. At some point during the argument, Sheila told Mildred she was going to the neighbors to call the police. As Sheila walked down the steps of Cole's house, with her baby in her arms, appellant hit her on the head with a machete. Appellant starting chopping Sheila on her legs with the machete, eventually severing two of her fingers from her hand. When Mildred saw appellant hitting Sheila with the machete, she pushed appellant in an attempt to defend Sheila. Appellant started chopping Mildred with the machete, nearly severing her thumb. Appellant threw down the machete and ran. When the police arrived, one of the officers found the protective order, covered with blood, on the porch.

During the guilt/innocence phase of the trial, the State asked one of the patrol officers about the protective order. Defense counsel did not object to the following testimony:

Q. And when the evidence technician arrived, did you also tell them about that machete that you found in that little garden?

A. Yes. I explained to him that the machete was in the - in the trunk of my car. And I believe I had also placed a copy of the protective order that one of the women was holding or it was - it was on the front porch in that area, and I remember taking that and putting it in the trunk.

Q. Now tell me about that. You said you found a protective order somewhere on the porch?

A. Yes. There's a protective order issued to, I believe, one of the - one of the complainants for that location, I guess the suspect that we had. It had blood splattered all over it, so I took that and placed it in the trunk.

The State later asked Sheila about the protective order, and defense counsel objected that the testimony would go to extraneous conduct or prior bad conduct. The trial court overruled the objection, stating "It's overruled. Obviously, if it's got blood on it, it's coming in anyway. If that's the reason she's [the prosecutor] questioning, it's coming in." The State then asked Sheila about the order:

Q. Was your Uncle Gerrardo [the appellant] supposed to be - was he allowed to be at the house back in August of '99?

A. No.

Q. Why wasn't he allowed to be there?

A. Because my grandmother got a protective order against him.

. . . .

Q. Why wasn't he allowed to be at the house and live at the house anymore?

A. Because of the protective order that we had against him, because he has behaved badly at other times.

The State called one of the detectives to the stand and asked him about the protective order. Defense counsel did not object to the following testimony:

Q. Okay. Do you recall, when you went out to the location at 630 East Carson, seeing another item in the trunk of the patrol officer's car along with the machete?

A. I believe he put a - there was a towel or - no. There was a towel on the ground. There was a document. It was a - it was a protective order.

Q. Detective Stark, I'm going to hand you what has been marked as State's 21. I'll ask you to take a look at that and see if it appears to be the document that you were speaking of?

A. Yes, it appears to be.

Q. What appears to be splattered all over State's Exhibit 21?

A. It appears to be blood.

The State then offered the exhibit into evidence. Defense counsel objected, stating, "Your honor, I'm going to make the same objection I had before in connection with the protective order, Your Honor." The court overruled the objection, and admitted the order into evidence.

On appeal, appellant argues that the protective order was not admitted as an exhibit of blood splatter, but rather to show prior bad acts. The State contends appellant waived any error because he did not object when the first officer was questioned about the order. We agree with the State. Appellant did not make a timely objection when the State first elicited testimony about the protective order from the patrol officer, nor did appellant object when the State later elicited similar testimony from the detective. Therefore, appellant waived any error in the admission of the order into evidence. Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988); see also Tex. R. App. P. 33.1(a).

We affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH