LARA v. STATE

Full title: HECTOR JASON LARA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 27, 2010

No. 05-08-01096-CR (Tex. App. Jan. 27, 2010)

Opinion

No. 05-08-01096-CR

Opinion Filed January 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from 291st Judicial District, Dallas County, Texas, Trial Court Cause No. F07-53879-HU.

Before Chief Justice WRIGHT, Justices MALONEY¹ and THOMAS.²

1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

2 The Honorable Linda Thomas, Chief Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice MALONEY.

The jury found Hector Jason Lara guilty of murder and assessed a forty-nine year sentence. In a single issue, appellant contends the trial court erred in allowing the State to impeach him with the facts of a retaliation charge. We affirm the trial court's judgment. Appellant and the deceased had both been drinking when appellant shot and killed the deceased. The witnesses' testimony differed on the events leading to the shooting. Appellant testified that he did not intend to shoot the deceased. Appellant admitted he had a weapon in his automobile, but contended he only shot to protect his family. After appellant testified that he had never wanted to kill anyone and had never used a gun before, the State cross-examined him on a previous conviction for terroristic threats and assaulting his ex-wife.³ In his sole issue, appellant argues the trial court abused its discretion in allowing the State to impeach appellant with the underlying facts of the retaliation charge. He contends that these underlying facts' probative value were greatly outweighed by their prejudicial effect under rule 609(a). Specifically, he maintains that crimes of deception "have a higher impeachment value than crimes involving violence . . .[which have] . . . a higher potential for prejudice." And terroristic threat is a crime of deception that occurred three years earlier. The State responds that appellant's objection at trial must comport with his issue on appeal. If it does not, then appellant preserves nothing for review. Alternatively, the State maintains appellant opened the door to the complained-of testimony.

3 Because appellant raises a single issue, that the trial court erred in allowing the State to impeach appellant with the circumstances of a retaliation charge, we limit the background details.

The Evidence

On direct examination, appellant testified that he never meant to kill the deceased. He claimed he did not know he had shot the deceased. He wanted only to protect his family because he thought other people were shooting in the parking lot. Appellant concluded his testimony by testifying that he had never wanted to kill anybody and had never used a gun on anybody before. Before the State began cross-examination, it requested a hearing outside the presence of the jury. The State presented evidence that appellant had previously threatened to kill a security guard "for getting me into this s**t." Appellant objected to relevance, the State's developing the underlying facts, and under rule 403. When the trial court questioned appellant on his objection, appellant answered "it's relevance, and it's a 403 objection." On appeal, appellant raises rule 609(a). See Tex. R. Evid. 609. He argues that the trial court erred in admitting the complained-of evidence because terroristic threat does not qualify as a crime of deception and has reduced impeachment value. In addition, he complains the complained-of incident was not close in time. A ground of error presented on appeal must comport with the complaint made at trial. See Tex. R. App. P. 33.1(a)(1)(A); Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005); Smith v. State, 176 S.W.3d 907, 918 (Tex. App.-Dallas 2005, no pet.). Appellant's complaint on appeal does not comport with his trial objection; thus, it is not preserved for review. We resolve appellant's issue against him. We affirm the trial court's judgment.