Case Number: 03-16-00538-CR

Judge: Scott K. Field

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Plaintiff's Attorney: The Honorable Stacey M. Soule
Mr. Joshua D. Presley

Defendant's Attorney: Ms. Amanda Erwin

Description: The jury heard evidence that appellant and Francesca Edwards were involved in a
romantic relationship for about four years. They lived together intermittently and, at one point, were
engaged to be married. Evidence at trial reflected that the events forming the basis of the instant
offense occurred as the relationship was ending. Edwards testified that one evening, she went out
with some of her friends. She explained that appellant began texting her, expressing his displeasure
that she had removed her engagement ring. Edwards testified that the tone of the texts became
increasingly hostile, and she felt threatened.
Edwards further testified that at the end of the night, when she arrived home and
pulled into the entrance of her apartment complex, she saw appellant behind her in his car. She said
that she tried to speed up to use the turnaround and circle out of the entrance, but appellant drove
into the rear quarter panel of the driver’s side of her Jeep. She explained that she again attempted
to speed up and turn, but appellant struck her Jeep once more. Edwards said that she continued to
try to maneuver the turn in the entrance to drive away, but appellant again rammed her Jeep as she
was turning, this time T-boning her Jeep on the driver’s side. According to Edwards, the impact
pushed the Jeep up and over the curb and into the sign for the apartment complex. She testified that
the impact with the sign caused her to hit her head on the steering wheel.
Because the parties are familiar with the facts of the case, its procedural history, and the1 evidence adduced at trial, we provide only a general overview of the facts of the case here. We provide additional facts in the opinion as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial. 2
Edwards recounted that, after the collision, appellant got out of his car, approached
the Jeep, reached through the driver’s window, grabbed her by the hair, and began punching her in
her face and about her head. Edwards explained that in an attempt to defend herself, she retrieved
a scalpel from her purse. She said that she slashed appellant with the scalpel, but during the ensuing
struggle appellant took the scalpel from her. Edwards indicated that appellant cut her on her forearm
and hands as she protected her face. According to Edwards, appellant stopped assaulting her when
police arrived on the scene. The evidence offered at trial showed that Edwards was taken by
ambulance to the hospital, where she was treated for her injuries, including a laceration on her
forearm that required six staples.
DISCUSSION
Extraneous Offense Evidence
In his first point of error, appellant contends that the trial court erred by allowing the
prosecutor to cross examine him about a 2001 extraneous offense that occurred in Kentucky in which
appellant struck an ex-girlfriend’s car with his car.
During cross examination of appellant, the following exchange occurred when the
prosecutor questioned appellant about how his car collided with Edwards’s Jeep:
Q. She hit her brakes, and then you hit her car?
A. Because I was tailgating her.
Q. This was an accident?
A. Yes, ma’am.
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Q. You didn’t plan for this to happen?
A. No, ma’am.
Q. This was a mistake?
A. Yes, ma’am.
At this point, the prosecutor approached the bench and asked to be allowed to cross examine
appellant about his Kentucky extraneous offense. The following occurred at the bench:
STATE: There’s a limine in place on extraneous offenses. I intend to go into one based on what he’s just testified about, in Kentucky in 2001. He rammed his ex-girlfriend’s car with his car. So we offer it under 404(b).
DEFENSE: Well, I would argue against the submission. We’re talking about something 15 years earlier. I don’t see how it’s probative. To me, it seems quite prejudicial.
STATE: The standard is whether it’s overly prejudicial. It’s probative of his -- absence of mistake or accident.
COURT: Well, under 404(b), I think you can go into the incident.
The court then provided guidelines to the State, indicating that the prosecutor could elicit testimony
about the conduct but not the conviction that resulted.
In his first point of error, appellant argues that the trial court erred in admitting the
extraneous offense evidence because it was inadmissible character conformity evidence, see Tex.
R. Evid. 404(b)(1) (prohibiting admission of evidence of extraneous bad acts to prove character
conformity), and was more prejudicial than probative, see Tex. R. Evid. 403 (allowing for exclusion
of otherwise relevant evidence when probative value is substantially outweighed by danger of
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“unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence”).
To preserve error for appellate review, a party must timely object and state the
grounds for the objection with enough specificity to make the trial judge aware of the complaint,
unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A); see
Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Yazdchi v. State, 428 S.W.3d 831,
844 (Tex. Crim. App. 2014). While no “magic words” or citation to specific statutes or rules is
required to preserve a complaint for appeal, a party must convey the substance of the complaint to
the trial court clearly enough to provide the judge and the opposing party an opportunity to address
and, if necessary, correct the purported error. Ex parte Marascio, 471 S.W.3d 832, 842 (Tex. Crim.
App. 2015); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). The record must make
it clear that both the trial court and the opposing party understood the legal basis for the complaint.
Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013); see Pena, 353 S.W.3d at 807. In
addition, a party must secure an adverse ruling. Tex. R. App. P. 33.1(a)(2); see Smith v. State,
499 S.W.3d 1, 7–8 (Tex. Crim. App. 2016); Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim.
App. 2006); see also Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (“[A]ppellant
failed to obtain an adverse ruling from which to base an appeal.”). Further, if a trial objection does
not comport with arguments on appeal, error has not been preserved. Thomas, 505 S.W.3d at 924;
Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996); see also Yazdchi, 428 S.W.3d at 844.
At trial, appellant objected to the admission of the evidence of his Kentucky
extraneous offense because it was not probative and was “quite prejudicial.” This complaint
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suggests an objection under Rule 403 that the probative value is substantially outweighed by the
danger of unfair prejudice. See Tex. R. Evid. 403. Appellant did not object to the admission of the
evidence on the ground that it constituted inadmissible character conformity evidence. See Tex. R.
Evid. 404(b). Therefore, appellant’s Rule 404(b) complaint, raised now for the first time on appeal,
was not preserved for appellate review.
Further, while appellant seemingly raised a Rule 403 objection, the trial court’s ruling
admitted the evidence under Rule 404(b). The trial court did not, at any point, make a ruling
regarding the alleged prejudice of the extraneous offense evidence in relation to its probative value.
Thus, because appellant failed to secure an adverse ruling, his Rule 403 objection that the evidence
was unfairly prejudicial was not preserved for appellate review.
Preservation of error is a systemic requirement on appeal. Darcy v. State,
488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim.
App. 2014); Roberts v. State, No. 03-14-00637-CR, 2016 WL 6408004, at *8 (Tex. App.—Austin
Oct. 26, 2016, pet. ref’d) (mem. op., not designated for publication). A reviewing court should not
address the merits of an issue that has not been preserved for appeal. Blackshear v. State,
385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Wilson v. State, 311 S.W.3d 452, 473–74 (Tex. Crim.
App. 2010); Roberts, 2016 WL 6408004, at *8. Here, the record reflects that appellant failed to
properly preserve for appellate review the complaints raised in his first point of error. Accordingly,
we overrule appellant’s first point of error.
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Sentencing
Appellant elected to have the trial court decide his punishment. See Tex. Code Crim.
Proc. art. 37.07(2)(b). At the beginning of the punishment hearing, appellant pled true to the
enhancement allegations of the indictment, and the State offered documentary evidence related to
appellant’s prior felony convictions. Appellant offered no punishment evidence. After hearing 2
argument from both sides, the trial judge found the enhancement allegations to be true and narrated
the enhanced punishment range. The judge then stated that “[t]he evidence in this case is markedly
disturbing” and detailed some of that evidence. After that, the judge sentenced appellant as follows:
[W]hat we’re here about is an offense that occurred on [the] 20th day of September, 2015. And write those numbers out, that will be 9 dash 20 dash 15. And this is the third type of an assaultive offense. And I did read through all -- or the majority of this evidence up here.
. . . . (further discussion of evidence)
The point is, it’s the third type of assaultive offense. So if you add those numbers together, the date in question here, September being the 9th month, 20th day of the 15th year of this century would be 44 plus three is 47. I remand you to the custody of the sheriff for a period of 47 years and that’s the sentence of the Court.
Although there were two enhancement paragraphs in the indictment, each alleging a prior2 felony conviction—engaging in organized criminal activity and aggravated assault with a deadly weapon—appellant was subjected to an enhanced punishment range pursuant to the repeat offender provision of the Penal Code, see Tex. Penal Code § 12.42(b) (providing that at trial of second degree felony offense, defendant shall be punished for first degree felony upon proof of previous felony conviction), rather than the habitual offender provision of the Penal Code, see id. § 12.42(d) (providing that at trial of felony offense other than unaggravated state jail felony, defendant shall be punished by imprisonment for life or any term not more than 99 years or less than 25 years upon proof of two previous sequential felony convictions), because the two prior convictions occurred on the same day and thus the convictions were not sequential. 7
In his second point of error, appellant claims that the trial judge’s manner of
determining his sentence violated his right to due process because, according to appellant, it reflects
that the judge failed to consider the full range of punishment. See Grado v. State, 445 S.W.3d 736,
739 (Tex. Crim. App. 2014) (“A court’s arbitrary refusal to consider the entire range of punishment
constitutes a denial of due process.”).
To preserve error for appellate review, a party must have presented to the trial court
a timely request, objection, or motion that states the specific grounds for the desired ruling if they
are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1);
see Smith, 499 S.W.3d at 7; Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Here,
when the trial judge articulated the sentence and sentenced appellant, appellant did not object to
either the sentence or the trial judge’s process of arriving at the sentence.
Nevertheless, in his brief, in response to an anticipated argument by the State that
appellant failed to preserve error on this issue, appellant “urge[s] the Court to hold that under Marin,
[appellant’s] error is preserved because the nature of the claim involves a right that is not
forfeitable.” However, appellant offers no argument beyond this summary assertion; thus this 3
Marin v. State is the watershed decision differentiating between rights that are mandatorily3 enforced, rights subject to waiver, and rights subject to forfeiture, and discussing which rights are subject to procedural default and the general preservation requirement of Texas Rule of Appellate Procedure 33.1. See 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). In Marin, the Court of Criminal Appeals delineated three distinct categories of rights belonging to litigants: “absolute requirements and prohibitions,” which are not optional and can never be waived or forfeited; “waivable rights,” which are rights that must be implemented unless expressly waived; and “forfeitable rights,” which are rights that must be requested in order to be implemented. Id. at 279–80; see Ex parte Marascio, 471 S.W.3d 832, 835 (Tex. Crim. App. 2015) (discussing categorization structure outlined in Marin); Ex parte Heilman, 456 S.W.3d 159, 162 (Tex. Crim. App. 2015) (same). 8
contention is inadequately briefed. See Tex. R. App. P. 38.1(i) (appellant’s brief must contain “a
clear and concise argument for the contentions made, with appropriate citations to authorities and
to the record”). Moreover, to the extent that appellant is asserting that his complaint regarding the
trial judge’s sentencing process is preserved because it raises a claim regarding the denial of a
constitutional right, we note that even constitutional rights—including the right of due process—may
be waived if the proper request, objection, or motion is not asserted in the trial court. See Yazdchi,
428 S.W.3d at 844; Clark, 365 S.W.3d at 339; Lucio v. State, 351 S.W.3d 878, 909 (Tex. Crim.
App. 2011); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Saldano v. State,
70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002).
The record here reflects that appellant failed to preserve for appellate review his
complaint that the trial judge’s manner of determining his sentence denied him due process. Again,
preservation of error is a systemic requirement on appeal, Darcy, 488 S.W.3d at 327; Bekendam,
441 S.W.3d at 299; Roberts, 2016 WL 6408004, at *8, and a reviewing court should not address the
merits of an issue that has not been preserved for appeal, Blackshear, 385 S.W.3d at 590; Wilson,
311 S.W.3d at 473–74; Roberts, 2016 WL 6408004, at *8. Accordingly, we overrule appellant’s
second point of error.

Outcome: Concluding that appellant failed to preserve his complaints about the admission of extraneous offense evidence and the trial court’s sentencing process for appellate review, we affirm the trial court’s judgment of conviction.

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