Edward Dwayne Miller v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00216-CR

Edward Dwayne MILLER,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2005-CR-5552

Honorable Mary Roman, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 19, 2007

AFFIRMED

A jury convicted Edward Dwayne Miller of burglary of a habitation. On appeal, Miller contends that the trial court erred in allowing the State to cross-examine him regarding (1) the details of his prior convictions and (2) his gang affiliation. In response, the State argues that Miller waived both issues by failing to properly object at trial. We agree with the State and affirm the trial court's judgment.

Preservation of Error

To preserve error, a party must make a timely objection, state the specific basis for the objection, and obtain a ruling from the trial court. See Tex. R. App. P. 33.1; Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). A party must object each time the inadmissible evidence is offered or obtain a running objection. Valle, 109 S.W.3d at 509; Mitchell v. State, 191 S.W.3d 219, 224 (Tex. App.-San Antonio 2005, pet. ref'd). An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Valle, 109 S.W.3d at 509; Mitchell, 191 S.W.3d at 224.

A. Details of Prior Convictions

During Miller's cross-examination, he admitted he had prior convictions for possession of a forged check, robbery, aggravated assault with a deadly weapon, burglary of a habitation, and sexual assault. On appeal, Miller contends that the trial court erred in allowing the State to then question him and introduce evidence about details of the latter four convictions. Miller also argues that the trial court erred in admitting his penitentiary packet, which contained documents showing each of his five convictions. However, Miller waived any error on this issue by failing to object when the court admitted the packet. See Tex. R. App. P. 33.1. The same is true for any details elicited with regard to Miller's convictions for robbery, aggravated assault with a deadly weapon, and burglary of a habitation. The record shows that Miller made no objections to any of the State's questions about the details of these three convictions and therefore waived any error in the admission of the testimony. See Tex. R. App. P. 33.1.

Although Miller objected to the admission of some of the details of his sexual assault conviction, he waived any error on this issue by failing to object when the court admitted the same evidence later in the trial. Valle, 109 S.W.3d at 509; Mitchell, 191 S.W.3d at 224. At the beginning of the State's questioning regarding the sexual assault, the State asked Miller what he felt sexual assault meant, and the defense attorney objected on the grounds that the testimony was irrelevant and that Miller had already admitted the conviction. The trial court overruled the objection. After Miller answered the question, the State continued questioning him about the details of the crime, and he explained that the assault was part of a gang initiation. The defense attorney did not object to this exchange and thus waived error with regard to the details elicited by the State. Valle, 109 S.W.3d at 509; Mitchell, 191 S.W.3d at 224. The next time the defense objected was when the State offered exhibit 16, which was Miller's plea agreement with attached police reports and statements. One of the grounds stated for the objection was that Miller had already admitted the conviction. The trial court overruled the objection and admitted the exhibit. Then, during Miller's re-cross-examination, the State offered exhibit 19, which both parties agree is the same packet as exhibit 16. This time, when the packet was tendered to the defense as exhibit 19, the defense attorney said "[n]o objections, Judge." Thus, all of the details of the sexual assault were admitted into evidence through police reports and statements with no objection from the defense. Valle, 109 S.W.3d at 509; Mitchell, 191 S.W.3d at 224. Because any error in the admission of the details of the conviction was cured when the same evidence was admitted later without objection, Miller waived any error in the admission of the evidence.

B. Gang Affiliation

Miller also contends that the trial court erred in allowing the State to cross-examine him regarding his gang affiliation. However, Miller again waived any error in the admission of this testimony by failing to properly object in the trial court. The State began its questioning about Miller's gang membership by asking him to explain his tattoos. The defense attorney objected to the question as irrelevant, and the trial court overruled the objection. Miller answered by stating that he was a convicted gang member. The State then asked him a series of questions about his gang's name, its activities, and his own gang-related activities. The defense attorney did not object to any of these questions or request a running objection. Later, the State asked Miller to remove his shirt to show his "gang-affiliated tattoos" and then asked several questions regarding the specific meaning of each of the tattoos. The defense attorney objected only once during this exchange on the ground that the State's attorney was testifying rather than asking a question. The State then asked a series of questions about Miller's position in the hierarchy of the gang and how he attained that position. The defense attorney again made no objections. Because Miller failed to request a running objection or object each time the State attempted to elicit testimony regarding his gang affiliation, he failed to preserve the issue for appeal. Valle, 109 S.W.3d at 509; Mitchell, 191 S.W.3d at 224.

Conclusion

We affirm the trial court's judgment.

Phylis J. Speedlin, Justice

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