Maynard v. State

• Decision Date: 20 February 1985
• Docket Number: No. 410-84,410-84
• Citation: 685 S.W.2d 60
• Parties: William Dean MAYNARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 60

685 S.W.2d 60

William Dean MAYNARD, Appellant, v. The STATE of Texas, Appellee.

No. 410-84.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 20, 1985.

Warwick H. Jenkins, Waxahachie, Brenda J. Damuth, Dallas, for appellant.

Gene Knize, County Atty. and Daniel L. McBride, Asst. County Atty., Waxahachie, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted for the offense of burglary committed by entering a habitation with the intent to commit rape. V.T.C.A. Penal Code, Sec. 30.02(a)(1). The jury assessed punishment at confinement in the Texas Department of Corrections for seven years. The Waco Court of Appeals affirmed his conviction in an unpublished opinion. Maynard v. State, (Tex.App.--Waco, No. 10-83-249-CR, delivered January 31, 1984.)

We granted the appellant's petition for discretionary review to determine whether evidence of an extraneous offense was improperly admitted into evidence at appellant's trial. The court of appeals held that appellant failed to preserve the error, that he waived any error by testifying to the same facts to which he had earlier objected, and that the error, if any, was harmless beyond a reasonable doubt. We disagree and accordingly reverse appellant's conviction.

A brief recitation of the facts is necessary to an understanding of appellant's grounds of review. We borrow liberally from the opinion of the court of appeals in setting them forth. Appellant testified that at 2:30 a.m. on Sunday, June 6, 1982, he illegally entered the complainant's house in the City of Waxahachie without her consent by forcing open a window screen; that he and the complainant were strangers; that he entered complainant's bedroom while she was asleep, and he disrobed except for his socks, got in bed with and awakened complainant, and that he had sexual intercourse with complainant.

Complainant testified that when she was awakened by appellant he was holding both of her wrists with his hands; that he said, "I won't hurt you if you cooperate"; that he moved one of his hands from her wrist to her throat and, pressing on her Adam's apple, again said, "If you cooperate, I won't hurt you"; and that frightened and fearful of physical injury, she did not resist appellant's act of sexual intercourse with her.

Appellant left the complainant's house after raping her, but he soon returned (appellant said 25 minutes, the complainant said 10 minutes), parked his car near the complainant's driveway, went to the back of her house, and began rattling her back door. Appellant was shoeless and shirtless at this time. Believing that the person rattling her door was appellant, the complainant called the police. Two police officers in a nearby patrol car responded almost immediately. Appellant hid in some bushes, then bolted and ran and escaped.

A records check and a telephone call revealed that the automobile left by the prowler belonged to appellant, and the vehicle was impounded and its contents inventoried. The inventory produced a "baggie" of marihuana, a roach clip, a hand-rolled marihuana cigarette, a switchblade knife, a lock-blade knife, an ice chest with a few beers in it, and a tape case. Testimony as to these contents of the vehicle was admitted before the jury over appellant's objections, and appellant asserts that the testimony regarding the marihuana and the switchblade knife was erroneously admitted and inherently prejudicial because it proved extraneous offenses that had no relevance to any issue in the case.

On the day trial began, appellant filed a "Motion in Limine to Suppress Evidence," in which he asserted that he had reason to believe that the State intended to introduce as evidence the fact that a quantity of marihuana was found in the search of his automobile and that this evidence was inadmissible for the reason that, if true, it constituted an extraneous offense having no relevance to the burglary charge. The record reflects that when this motion was presented to the trial court, appellant was permitted by agreement of the prosecutor and the trial court to orally add the switchblade knife to the written motion. The record further reflects that the trial court treated this motion as a motion in limine and denied the motion as written, but granted the motion as orally amended. ¹

During the prosecutor's direct examination of officer Larry Lewis, the District Attorney inquired as to what, if anything, the officer found in appellant's vehicle. The witness replied, "Found a baggie of--," whereupon appellant lodged his objection thereto and requested the matter be taken up outside the presence of the jury. The court then dismissed the jury, and evidence was presented regarding the seizure from appellant's vehicle of the baggie of marihuana, switchblade knife and lock-blade knife. During this hearing the appellant urged the following objection:

"Your Honor, we object to the offer and admission of any testimony about anything that was discovered in the inventory that succeeded and followed his ascertainment of the ownership of this car for the reason it is not part of the res justi (sic) and it wasn't necessary to prove identity and it doesn't bear on intent and it doesn't show motive and malice and it doesn't show a plan or system and it has no bearing on any defensive theory and it doesn't show flight."

The trial judge overruled appellant's objection after the prosecutor argued that the evidence was in the nature of res gestae. At the close of the hearing conducted outside the jury's presence the following colloquy took place between counsel for appellant and the trial judge:

"THE COURT: Mr. Jenkins, you want to renew your objections when the jury gets back or do you just want me to take them into consideration at this time so you won't have to object and give your objection?

"MR. JENKINS: I believe I will object in the presence of the Jury."

When the evidence was introduced in the presence of the jury appellant's counsel lodged the following objection:

"MR. JENKINS: May it please the Court, we would like to object to this line of interrogation about any inventory for the reason that it is immaterial and irrelevant to any issue in this cause and is only offered and introduced, if allowed, to enflame and prejudice the minds and attitude of the Jury toward this Defendant."

The trial court overruled the objection.

The court of appeals held that nothing was presented for review because it concluded that the "Motion to Suppress" was filed on the day of trial and was unsupported by evidence, citing Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976). The court of appeals further held that the objection made by appellant's counsel in front of the jury was insufficient because it was not based upon the ground that the evidence constituted proof of an extraneous offense. The court of appeals failed to discuss the effect of the hearing held outside the presence of the jury or the objection there made by appellant's counsel.

In his second ground for review, appellant contends that his motion in limine was supported by the evidence adduced at the hearing outside the jury's presence. He concludes that this was sufficient to preserve error under Writt, supra. This contention is patently without merit. The record clearly reflects that the trial judge treated appellant's motion as a motion in limine and granted it before the trial started. Thus, the hearing could not have been conducted pursuant to a motion upon which the trial judge had already ruled. More elementary is the fact that appellant calls the motion a motion in limine in his brief. It is axiomatic that motions in limine do not preserve error.

In his third ground for review, appellant contends that his objection made in the jury's presence was sufficient to preserve error. He additionally contends that since a hearing was held outside the presence of the jury with regard to the extraneous offenses, and the trial court ruled thereon, it was not necessary for appellant to object in front of the jury in order to preserve his right to complain on appeal. We agree with the court of appeals that appellant's objection in front of the jury was too global to preserve error. See Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978); Russell v. State, 468 S.W.2d 373 (Tex.Cr.App.1971). However, we agree with appellant that the overruling of his objection made at the hearing outside the jury's presence was sufficient to preserve the asserted error for appellate review. Article 40.09 6(d)(3), V.A.C.C.P., provides as follows:

"When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objection shall ² be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury."

We observe that Art. 40.09 6(d)(3), supra, is mandatory by its own terms. We further observe that appellant's objection outside the jury's presence, while never using the phrase "extraneous offense," was clearly sufficient to provide the trial judge and the prosecutor with notice that appellant was in fact complaining of an extraneous offense. Significantly, the prosecutor argued in response to the objection that the evidence was admissible under the res gestae exception to the rule prohibiting the admission of extraneous offenses. Additionally, the purpose of an objection is twofold: first, a specific objection is required to inform the trial judge of the basis of the objection and afford him or her an opportunity to rule on it; and second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. See Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977). Since the record clearly reflects that all pa...