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concluding Robinson failed to preserve error because "[t]he record does not reflect defense counsel responded to the objection or objected to the trial court's instruction," and the "record also does not reflect any specific questions that Robinson sought to ask but was prohibited from asking"
Summary of this case from Vargas v. StateOpinion
No. 04-17-00397-CR
11-07-2018
Sherman ROBINSON, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR0702
The Honorable Laura Lee Parker, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
Appellant Sherman Robinson appeals his conviction for the offense of aggravated assault of a public servant. The jury returned a guilty verdict, and based upon the jury's recommendation, the trial court sentenced Robinson to sixty-five years' imprisonment. In two issues, Robinson contends the trial court abused its discretion by impermissibly limiting voir dire examination and erroneously allowing the admission of irrelevant victim impact testimony during the punishment phase. We affirm.
BACKGROUND
The State charged Sherman Robinson with aggravated assault against a public servant for shooting Bexar County Sheriff's Deputy Joseph Canales on October 30, 2015. Deputy Canales testified that, based upon a tip he received during a traffic stop, he intended to investigate drug activity occurring at a particular convenience store. In the course of the investigation, Deputy Canales drove through the area, attempting to find an individual he had observed as suspicious. When he saw the individual, Deputy Canales parked his marked vehicle and exited. When Deputy Canales stepped out of his vehicle, he heard a gunshot and felt the impact in his arm. Deputy Canales then felt a second gunshot in the chest, which knocked him back. Deputy Canales testified he saw the person shooting at him when the second round hit him. The shooter was later identified as Robinson.
The jury found Robinson guilty and assessed punishment at sixty-five years' imprisonment. This appeal followed.
DISCUSSION
Voir Dire
In his first issue, Robinson argues that the trial court erred by limiting his counsel's examination during jury selection. Specifically, Robinson complains "[t]he trial court abused its discretion by erroneously allowing a limitation of voir dire by not correcting a false statement of the law espoused by the State." We review a challenge alleging the limitation of voir dire for an abuse of discretion. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003); Dewalt v. State, 307 S.W.3d 437, 456 (Tex. App.-Austin 2010, pet. ref'd). To preserve error, an appellant must show he was prevented from asking specific and proper questions. Sells, 121 S.W.3d at 756. A showing that "the trial court generally disapproved of an area of inquiry from which proper questions could have been formulated" is insufficient to preserve error "because the trial court might have allowed the proper question had it been submitted for the court's consideration." Id.
In this case, the State objected to defense counsel's response to a venire member's question regarding whether the State would be able to retry a defendant under a particular hypothetical scenario posited by defense counsel. The State objected that counsel's response was a misstatement of the law. The trial court did not expressly rule on the State's objection. Rather, the trial court informed the potential jurors that it would provide the jury with the law and "it will instruct you to follow the law that's contained in the charge." When the venire member restated the question, the State again objected that defense counsel's response was a misstatement of the law. The trial court eventually instructed:
This hypothetical could go many, many different ways and there is no way to know for sure what would happen, okay? So let's don't get bogged down on the final result of this hypothetical.The record does not reflect defense counsel responded to the objection or objected to the trial court's instruction. The record also does not reflect any specific questions that Robinson sought to ask but was prohibited from asking. Because Robinson has not shown that he was prevented from asking a specific and proper question, he has failed to preserve error. See Saldinger v. State, 474 S.W.3d 1, 6 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd); Dewalt, 307 S.W.3d at 457; Mohammed v. State, 127 S.W.3d 163, 170 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd).
Let's kind of focus in on what it is that she is asking you, about whether or not, if the State failed to prove all their elements, and the jury believed that they failed to prove even a minor element, the jury is instructed that they could not find the person guilty unless they were convinced beyond a reasonable doubt of each and every element.
We overrule issue one.
Victim Impact Testimony
In his second issue, Robinson complains the trial court impermissibly allowed the admission of irrelevant, or improper, victim impact testimony during the punishment hearing. Robinson contends portions of the victim impact testimony were "more prejudicial than probative," "clearly designed to inflame the jury," and "inflammatory."
Standard of Review and Preservation
We review the trial court's decision on the admissibility of evidence under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. If the trial court's evidentiary ruling is correct under any applicable theory of law, it will not be disturbed. Id.
To preserve a complaint for appellate review, the complaining party must make a timely objection to the trial court which states the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. TEX. R. APP. P. 33.1(a)(1). The complaining party must let the trial court know what he wants and why he thinks he is entitled to it, and he must do so clearly enough for the trial court to understand and at a time when the trial court is in a position to do something about it. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). Further, a party must object each time the allegedly inadmissible evidence is offered or obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). "'An error, [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.'" Id. (quoting Valle, 109 S.W.3d at 509).
Discussion
In this case, Robinson specifically complains of three items of testimony, which he objected were victim impact testimony not properly before the jury during the punishment hearing: 1) Mrs. Canales's testimony regarding how the incident impacted Deputy Canales's special-needs child; 2) Mrs. Canales's "graphic detail about how she had to bathe her husband, as well as [aid] him in eating and using the restroom;" and 3) Deputy Canales's testimony that his own father, a police officer, was killed in the line of duty.
Robinson objected the first time a question was posed regarding each item of the complained-of testimony. However, our review of the record reveals that Robinson neither requested a "running objection" nor objected directly to the specific instances of the complained-of testimony each time the evidence was presented. Accordingly, Robinson failed to preserve this issue for review. See also TEX. R. APP. P. 33.1(a)(1).
We overrule issue two.
CONCLUSION
For the above reasons, we affirm the judgment of the trial court.
Irene Rios, Justice DO NOT PUBLISH