Gaines v. State
Decision Date | 06 March 1990 |
Docket Number | No. 05-87-01192-01387-CR,05-87-01192-01387-CR |
Parties | Steven Lamont GAINES, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Appeals |
Don Driscoll, Dallas, Renie McClellan, Cedar Hill, for appellant.
Robert P. Abbott, Dallas, for appellee.
Before HOWELL, LAGARDE and WHITTINGTON, JJ.
A jury convicted Steven Lamont Gaines of aggravated robbery and assessed his punishment at sixty years' confinement in the Texas Department of Corrections. The trial court revoked appellant's probation in a prior burglary of a vehicle case and assessed his punishment at four years' confinement. Appellant raises five points of error, claiming that: 1) the trial court abused it discretion by denying his request to distribute a juror questionnaire prior to the beginning of voir dire; 2) the trial court erred in allowing the State to cross-examine witnesses at the punishment stage of the trial regarding whether appellant's conviction would affect their testimony; 3) the trial court erred in allowing an in-court identification of appellant because it was tainted by an out-of-court identification; 4) the trial court erred in admitting evidence of an extraneous offense; and 5) the trial court erred by allowing into evidence testimony concerning offenses committed by individuals other than appellant. We affirm.
In his first point of error, appellant argues that the trial court abused its discretion by denying his request to distribute juror questionnaires prior to the beginning of voir dire. However, the transcript reflects that appellant's motion to allow the use of juror questionnaires was granted. The record of voir dire proceedings does not reflect that this matter was discussed or that any adverse ruling was obtained.
In order to preserve a complaint for appellate review, a party must present to the trial court a timely motion and obtain an adverse ruling. TEX.R.APP.P. 52(a). When no adverse ruling is obtained, nothing is presented for review. Terry v State, 517 S.W.2d 554, 557 (Tex.Crim.App.1975). We overrule this point of error.
In his second point of error, appellant argues that the trial court erred by allowing the State to question a witness, Victor McRea, called by appellant at the punishment stage of trial regarding whether or not appellant's conviction in the instant offense would affect his testimony. At the punishment phase, the following transpired:
* * * * * *
During cross-examination concerning appellant's conviction for burglary of a vehicle, McRea testified as follows:
Appellant's objections at trial came only after the complained of questions had been asked and answered. A party must make a timely and specific objection to preserve a complaint for appellate review. TEX.R.APP.P. 52(a). In order to be timely, the objection must be made as soon as the ground becomes apparent. Thompson v. State, 691 S.W.2d 627, 635 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). Appellant's objection was not timely. Further, appellant later failed to object to the State's later cross-examination of the same witness about whether he was "bothered" that appellant had assaulted and beaten a woman with a hatchet. Because the same evidence objected to was subsequently admitted without objection, any error was rendered harmless. Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986). We overrule appellant's second point of error.
In his third point of error, appellant contends that the trial court erred in allowing the impermissible in-court identification of appellant for the reason that it was tainted by out-of-court identification procedures. Appellant complains that he was the only person in a yellow tank top in the photographic line-ups shown to M.B, A.H., and Steve Montana. M.B., A.H., and Steve Montana had told police that one of the attackers was wearing a yellow tank top. Convictions based on eyewitness identification testimony will be set aside because of a pretrial photographic lineup only if the identification procedure: (1) was impermissibly suggestive, and (2) gave rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968); Turner v. State, 614 S.W.2d 144, 146 (Tex.Crim.App.1981). Whether a pretrial procedure fatally tainted the in-court identification of the accused so as to deny him due process must be evaluated in light of the totality of the surrounding circumstances. Jackson v. State, 657 S.W.2d 123, 127 (Tex.Crim.App.1983). Factors considered in determining the origin of in-court identification testimony include the opportunity of the witness to observe the defendant, the degree of attention, the accuracy of any physical descriptions, the degree of certainty, and the amount of time between the offense and the identification of the accused. Jackson, 657 S.W.2d at 129; Ross v. State, 715 S.W.2d 55, 56 (Tex.App.--Dallas 1986, no pet.). Absent clear and convincing evidence that the in-court identification is tainted by improper pretrial procedures, testimony identifying the defendant is always admissible. Holloway v. State, 691 S.W.2d 608, 615 (Tex.Crim.App.1984).
A.H., Steve Montana, and M.B. each testified at a separate hearing conducted outside of the jury's presence to the circumstances surrounding their identification of appellant. They all testified that the parking lot where the robbery occurred was well-lighted; and each identification witness was, at some point, close to appellant. All three witnesses said that appellant was the assailant carrying a hatchet and wearing a yellow tank top, alternatively referred to as a "muscle shirt." A.H. picked out appellant from a set of six photographs depicting black men of approximately the same age. Although appellant was the only individual pictured in a yellow tank top, A.H. testified that her identification was based strictly on recognizing appellant's face from the time of the offense. Steve Montana and M.B. also selected appellant's picture from a group of six similar photographs based on their recollection of the events. After examining the factors delineated in Jackson, we hold that the in-court identification was not tainted by improper pretrial procedures. Jackson 657 S.W.2d at 129; Holloway, 691 S.W.2d at 615. We overrule this point of error.
In his fourth point of error, appellant asserts that the trial court erred in admitting evidence of extraneous offenses committed by appellant. The accused may not be tried for some collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). The admissibility of an extraneous offense is controlled by a two-step test: the evidence must (1) be relevant to a material issue in the case, and (2) possess probative value which outweighs its inflammatory or prejudicial effect. Robinson v. State, 701 S.W.2d 895, 896 (Tex.Crim.App.1986); Williams, 662 S.W.2d at 346. Where an offense is one continuous transaction, however, or another criminal act is part of the case on trial or closely interwoven, then proof of all the facts is proper. Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986); Archer v. State, 607 S.W.2d 539, 542 (Tex.Crim.App.1980), cert. denied, 452 U.S. 908, 101 S.Ct. 3037, 69 L.Ed.2d 410 (1981). Sometimes called "res gestae," an...
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