Opinion
No. 03-03-00509-CR
Filed: June 23, 2005. DO NOT PUBLISH.
Appeal from the District Court of Travis County, 331st Judicial District. No. 9034123, Honorable Bob Perkins, Judge Presiding. Affirmed.
Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
MEMORANDUM OPINION
A jury found appellant Allen Meeks guilty of criminal trespass of a habitation and violating a protective order, and assessed both confinement and a fine for each offense. See Tex. Pen. Code Ann. §§ 25.07(g), 30.05 (West Supp. 2004-05). On appeal, Meeks presents three issues related to the evidence introduced against him in the punishment stage of trial. First, he argues that the district court violated his Sixth Amendment rights by preventing him from introducing evidence that a prosecution witness was on parole and, thus, possibly biased for the State. Next, Meeks claims that evidence of certain unadjudicated prior bad acts should have been excluded because the State's notice of intent to introduce that evidence was overly broad. Finally, Meeks asserts that he should have been permitted to introduce evidence that he had been "no-billed" by a grand jury for an extraneous sexual assault. We will affirm the judgment.
BACKGROUND
In a three count indictment, the State alleged that Meeks committed burglary with intent to commit aggravated assault, aggravated assault with a deadly weapon, and violation of a protective order during a February 2003 incident involving his ex-wife, Frieda Jones. At the time of the incident, Meeks was under an April 8, 2002, agreed protective order entered by the Travis County district court that prohibited him from, among other things, committing acts of family violence or coming within 200 yards of Frieda, who was then married to him. The pair divorced in November of that year. The State alleged that Meeks entered Jones' home uninvited on or about February 11, 2003. Jones testified that, as she woke up in her bed, Meeks was in her bedroom threatening her and swinging a club with metal on the end of it. Jones ran from the home and attracted the attention of an off-duty senior patrol officer for the Austin Police Department, Manuel Martinez, who happened to be driving by on his way to work. Martinez testified that, as he was driving, he saw a woman running in his direction waving her hands at him. Although Martinez recounted that it was cold outside, Jones was wearing a nightgown and was carrying her baby, who was wearing only a diaper. According to Martinez, Jones was "very, very emotional, yelling, crying, repeating herself." Martinez then called 911 and asked for backup. Jones told Martinez that her husband was trying to kill her. Martinez then noticed Meeks peeking at them around the corner of a small building. Martinez ordered Meeks to come out, and Meeks was arrested. Meeks was tried before a jury. Several witnesses testified, including Jones, Martinez, and Meeks. The jury acquitted Meeks of the charges of burglary of a habitation. Meeks was found guilty, however, of the lesser included charge of criminal trespass of a habitation, and of violating the protective order, although the jury found that he did not use a deadly weapon during the violation of the protective order. The jury assessed punishment at one year's confinement and a $4,000 fine on the criminal trespass charge; and ten years' confinement and a $10,000 fine for violation of the protective order. Meeks timely filed this appeal.DISCUSSION
Meeks does not challenge his adjudication of guilt but brings three issues concerning the evidence introduced during the punishment phase of trial. In his first issue, Meeks claims that his Sixth Amendment right to confront witnesses was violated when he was prevented from cross-examining a witness regarding possible bias arising from the witness's parole status. In his second issue, he complains that the State's notice of intent to introduce evidence of other alleged bad acts committed by Meeks was overly broad and insufficient. Finally, in his third issue, Meeks contends that the district court erred by failing to allow him to introduce evidence that an extraneous sexual assault charge against him had been "no-billed" by the grand jury.Right of confrontation
In his first issue, Meeks argues that his Sixth Amendment rights were violated because he was precluded from cross-examining a witness concerning her possible bias arising from her parole status. He relies on the same analysis in contending that rule 613 provides a separate basis for permitting him to inquire into her underlying conviction and parole status. See Tex. R. Evid. 613. The State responds that Meeks waived these arguments by failing to produce evidence that the witness was actually on probation, by objecting at trial solely under rule 609 instead of under the Sixth Amendment or rule 613, and by failing to allege bias at the time of his objections. Alternatively, the State argues that any error was harmless. At the punishment stage of the trial, the State called as a witness Meeks's sister, Brenda Meeks. Before she testified, the parties approached the bench to discuss matters that had been addressed in a motion in limine. During that discussion, Meeks's attorney noted that Brenda Meeks "was convicted in 1987 for delivery of controlled substance, sentenced to twenty-five years in the Institutional Division of the Texas Department of Criminal Justice, [and] would still be on parole and is so until the year 2012. As result thereof, I believe that since she is technically still confined due to the conditions of parole . . . that matter should be allowed pursuant to 609 for impeachment purposes of this witness." Texas Rule of Evidence 609 permits, under certain circumstances, the admission of evidence that the witness has been convicted of a crime for the purpose of attacking the credibility of a witness. See Tex. R. Evid. 609(a). However, evidence of a conviction is not admissible under 609 if "a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." See id. at 609(b). Meeks's entire argument at trial concerning admission of Brenda Meeks's conviction centered on the application of rule 609 and, in particular, whether the rule's ten-year limitation on convictions began running upon Brenda Meeks's release from prison or would only begin running after she completed parole. On appeal, he does not contend that the trial court abused its discretion in regard to rule 609. Rather, Meeks complains only that the court violated his Sixth Amendment right to confront witnesses and rule 613. Meeks urges that he did not waive the Sixth Amendment issue and that his arguments were sufficient to apprise the district court of his contention that the witness was potentially biased. He points to his statement at trial that the witness was "still serving that sentence. It's just a matter of her being on parole instead of in the institution. She could be sent back to the institutional division any time." We have reviewed the record, and it is clear that Meeks made these statements in the context of his argument regarding rule 609 — when the ten-year period began to run — and that he was not referring to potential bias or his right to confrontation. Nor do these statements indicate any reliance on rule 613. Except for complaints involving fundamental constitutional systemic requirements, "all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1." Mendez v. State, 138 S.W.3d 334, 338 (Tex.Crim.App. 2004); Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999); see Gallups v. State, 151 S.W.3d 196, 204-205 (Tex.Crim.App. 2004). In order to preserve error for our review, the record must show compliance with rule 33.1 of the rules of appellate procedure requiring that:(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.Tex.R.App.P. 33.1; see Gallups, 151 S.W.3d at 204-205; Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004). Texas Rule of Evidence 103(a)(1) contains similar guidelines, providing that if the ruling is one admitting evidence, a timely objection or motion to strike must appear on the record, "stating the specific ground of objection, if the specific ground was not apparent from the context." Tex. R. Evid. 103(a)(1); Gallups, 151 S.W.3d at 204-05. Additionally, it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial. See Gallups, 151 S.W.3d at 204-05; Heidelberg, 144 S.W.3d at 537. Although Meeks complains that his Sixth Amendment rights were violated by the district court's refusal to allow cross-examination on the issue of the witness's parole under rule 609, the district court never had the opportunity to consider the merits of that argument. See Heidelberg, 144 S.W.3d at 538 ("presenting a claim based solely on federal grounds will not suffice to put the court on notice to claims based on State grounds, unless the State ground is apparent from the context."). Nor was the district court presented the opportunity to consider Meeks's arguments regarding rule 613. Therefore, because Meeks's trial objection does not comport with the issues he raises on appeal, and his appeal grounds were not apparent from the context, he has preserved nothing for review. See Mendez, 138 S.W.3d at 338; Ibarra, 11 S.W.3d at 197; see also Mumphrey v. State, 155 S.W.3d 651, 656 (Tex.App.-Texarkana 2005, no pet.). We overrule Meeks's first issue.