Edwards v. State

Full title: CRAIG ALEXANDER EDWARDS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Dec 7, 2006

No. 01-05-00855-CR (Tex. App. Dec. 7, 2006)

Opinion

No. 01-05-00855-CR.

Opinion issued December 7, 2006. DO NOT PUBLISH.

On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1015880.

Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.

MEMORANDUM OPINION

SAM NUCHIA, Justice.

Appellant Craig Alexander Edwards was convicted by a jury of murder in the first degree. See Tex. Pen. Code Ann. § 19.02(a)-(c) (Vernon 2003). The jury assessed punishment at life imprisonment. Appellant brings four points of error, alleging (1) there is a fatal variance between the allegations in the indictment and the proof at trial, (2) the evidence is legally insufficient to support his conviction because the indictment alleged he committed the murder with his hands, (3) he is entitled to a new trial because the court reporter did not record bench conferences, and (4) the trial court erred in admitting evidence of extraneous crimes, wrongs, or acts by appellant after the murder. We affirm. In point of error one, appellant claims there is a fatal variance between the allegations in the indictment and the proof at trial. The indictment states that appellant "while in the course of committing and attempting to commit the ROBBERY of [the victim], intentionally cause[d] the death of [the victim] by STRANGLING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY HIS HANDS." Appellant contends that the proof at trial established that if he killed the victim, he did it with a cord or a rope, not with his hands. In point of error two, appellant claims there is legally-insufficient evidence that he committed the murder with his hands. The standard for reviewing the legal sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979). There was testimony at trial from the medical examiner that the injuries on the victim's neck were consistent with strangulation with the hands and testimony from a witness that appellant admitted to choking the victim with his hands. While there was testimony that appellant also used a cord, the jury was free to resolve any conflicts in the evidence. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). We overrule points of error one and two. In point of error three, appellant alleges he is entitled to a new trial because the court reporter did not record bench conferences as required by Texas Rule of Appellate Procedure 13.1(a). This Court, sitting en banc, has rejected the argument that Rule 13.1(a) allows a defendant to raise the lack of a court reporter on appeal without an objection at trial. Polasek v. State, 16 S.W.3d 82, 88-89 (Tex.App. — Houston [1st Dist.] 2000, pet ref'd) (en banc) (holding Rule 13.1(a) void in light of Tex. Gov't Code Ann. § 52.046(a) (Vernon 2005)). Appellant did not object at trial. See Tex. R. App. P. 33.1 (requiring preservation of error). We overrule point of error three. In point of error four, appellant alleges the trial court erred in admitting evidence of extraneous crimes, wrongs, or acts by appellant after the murder. See Tex. R. Evid. 404(b) (evidence of other crimes, wrongs, or acts is not admissible to prove character of person to show action in conformity therewith). Appellant objected to this testimony at trial only on the grounds that it was hearsay and nonresponsive. The trial court sustained appellant's objection as to nonresponsiveness. Appellant has not preserved an allegation of error based on Texas Rule of Evidence 404(b). See Tex. R. App. P. 33.1 (requiring preservation of error). We overrule point of error four. We affirm the judgment.

Justice JENNINGS concurring.

MEMORANDUM OPINION

Appellant Craig Alexander Edwards was convicted by a jury of murder in the first degree. See Tex. Pen. Code Ann. § 19.02(a)-(c) (Vernon 2003). The jury assessed punishment at life imprisonment. Appellant brings four points of error, alleging (1) there is a fatal variance between the allegations in the indictment and the proof at trial, (2) the evidence is legally insufficient to support his conviction because the indictment alleged he committed the murder with his hands, (3) he is entitled to a new trial because the court reporter did not record bench conferences, and (4) the trial court erred in admitting evidence of extraneous crimes, wrongs, or acts by appellant after the murder. We affirm. In point of error one, appellant claims there is a fatal variance between the allegations in the indictment and the proof at trial. The indictment states that appellant "while in the course of committing and attempting to commit the ROBBERY of [the victim], intentionally cause[d] the death of [the victim] by STRANGLING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY HIS HANDS." Appellant contends that the proof at trial established that if he killed the victim, he did it with a cord or a rope, not with his hands. In point of error two, appellant claims there is legally-insufficient evidence that he committed the murder with his hands. The standard for reviewing the legal sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979). There was testimony at trial from the medical examiner that the injuries on the victim's neck were consistent with strangulation with the hands and testimony from a witness that appellant admitted to choking the victim with his hands. While there was testimony that appellant also used a cord, the jury was free to resolve any conflicts in the evidence. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). We overrule points of error one and two. In point of error three, appellant alleges he is entitled to a new trial because the court reporter did not record bench conferences as required by Texas Rule of Appellate Procedure 13.1(a). This Court, sitting en banc, has rejected the argument that Rule 13.1(a) allows a defendant to raise the lack of a court reporter on appeal without an objection at trial. Polasek v. State, 16 S.W.3d 82, 88-89 (Tex.App. — Houston [1st Dist.] 2000, pet ref'd) (en banc) (holding Rule 13.1(a) void in light of Tex. Gov't Code Ann. § 52.046(a) (Vernon 2005)). Appellant did not object at trial. See Tex. R. App. P. 33.1 (requiring preservation of error). We overrule point of error three. In point of error four, appellant alleges the trial court erred in admitting evidence of extraneous crimes, wrongs, or acts by appellant after the murder. See Tex. R. Evid. 404(b) (evidence of other crimes, wrongs, or acts is not admissible to prove character of person to show action in conformity therewith). Appellant objected to this testimony at trial only on the grounds that it was hearsay and nonresponsive. The trial court sustained appellant's objection as to nonresponsiveness. Appellant has not preserved an allegation of error based on Texas Rule of Evidence 404(b). See Tex. R. App. P. 33.1 (requiring preservation of error). We overrule point of error four. We affirm the judgment. SAM NUCHIA, Justice.