Opinion
No. 05-06-01154-CR
Opinion Filed August 27, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. One, Grayson County, Texas, Trial Court Cause No. 2004-1-100.
OPINION
The jury found Dawnise Olson guilty of theft. After the verdict, the State and appellant informed the trial court that they had reached an agreement on punishment. The trial court followed their agreement, and assessed a 180 day sentence and a $500 fine, suspended the jail sentence, and place appellant on community supervision for one year. In her sole issue, appellant contends the trial court erred in not granting her motion for mistrial. Security observed appellant and Sara Doty enter Mervyn's department store with relatively empty shopping bags. Security continued to watch them as they quickly gathered multiple merchandise, with no regard to size or color, and headed for the fitting rooms. When they left the store, their shopping bags appeared to be fuller and neither appellant nor Doty stopped to pay a cashier for any merchandise. Consequently, Security stopped both girls in the mall and took them back into the store. After finding Mervyn's merchandise in their shopping bags and removed Mervyn's price tags in the fitting rooms which corresponded with the merchandise in their shopping bags, Security telephoned the police. Appellant argues that the trial court's not granting her motion for mistrial allowed the jury to consider "prior bad acts committed by the codefendant and [appellant]" which violated rule of evidence 404(a). Additionally, appellant complains that the State violated her pretrial motion for notice of intent to introduce evidence of prior bad acts. The State responds that appellant did not preserve the error for appeal. To preserve a complaint for appellate review, a party must timely object-at his first opportunity or as soon as the basis for the objection becomes apparent. Jones v. State, 111 S.W.3d 600, 604 (Tex.App.-Dallas 2003, pet. ref'd). Additionally, that objection must be reasonably specific, followed by an adverse ruling. Tex. R. App. P. 33.1 (a); Steadman v. State, 31 S.W.3d 738, 742 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). If the trial court sustains the objection, the party must request the trial court to instruct the jury to disregard and move for a mistrial. The State called Doty as its witness and questioned her about the details of the criminal mischief case. Then, the State questioned her about the events leading up to the actual theft. Doty related how she and appellant took the store's merchandise as well as their arrest and her sentence. Next, the State questioned Doty as follows:
Q. Had you ever been in that Mervyn's store before?
A. Yes.
Q. With [appellant]?
A. Yes.
Q. And done the exact same thing prior to November of 2003?
A. Yes.Appellant did not object to this testimony, rather she objected to the State's following question:
Q. Do you remember when you and [appellant] had done this before.
[APPELLANT]: Objection to relevance, your honor.
THE COURT: Sustained.
Q. You did this prior to November 2003?
A. Yes.
Q. So you had done this shoplifting before?
A. Yes.
Q. At the same Mervyn's?The trial court removed the jury and held a hearing outside the presence of the jury. Appellant first moved for a mistrial. Next, appellant argued that the trial court had sustained her objection on relevance. Appellant followed with argument that the question was improper character evidence. The State responded that it was offering the evidence "to show plan and absence of mistake, which are admissible under rule 404(b)." The trial court took a break and when it resumed the hearing, stated that the record contained a letter that requested the State provide notice under rule of evidence 404(b) of any "other conviction, other crimes, wrongs, or bad acts" of appellant. The trial court then asked the State if it had provided notice to appellant. The State was unaware of the request and whether the State gave notice to appellant. The trial court considered whether a jury instruction would cure the problem. The State provided the trial court with case law. In response, the trial court denied appellant's motion for mistrial and instructed the jury to disregard the testimony of "other events that may or may not have happened at some other time." Following Doty's testimony on how appellant and she took merchandise from the Mervyn's store, she affirmed that they had been in the Mervyn's store before. Appellant's first opportunity to preserve her complaint for appellate review occurred when the State asked its next question-if they did "the exact same thing prior to November of 2003." Appellant did not object to this testimony. Rather, appellant objected to the State's following question-when appellant and Doty had done this before-as not "relevant." Additionally, the trial court sustained appellant's "relevant" objection and appellant did not received an adverse ruling. Actually, the State asked three more questions before the trial court on its own retired the jury. Appellant has failed to preserve this point for appellate review. We affirm the trial court's judgment.
The State tried a separate offense, criminal mischief, in this same proceeding. This jury found appellant not guilty of criminal mischief.