Opinion
No. 13-04-532-CR
Memorandum Opinion Delivered and Filed November 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 357th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices CASTILLO and GARZA.
MEMORANDUM OPINION
A jury convicted appellant, Isy Lee Zayas, of possession of marijuana in an amount of fifty pounds or less, but more than five pounds. See TEX. HEALTH SAFETY CODE ANN. § 481.121(b)(4) (Vernon 2003). Appellant was sentenced to seven years' confinement and now appeals her conviction, arguing that the trial court erred in failing to grant a mistrial because (1) the State improperly offered testimony of an extraneous offense by appellant, and (2) evidence was introduced by the State that appellant did not make a statement to officers after her arrest. For the reasons that follow, we affirm the judgment of the trial court.
Standard of Review
We review a trial court's denial of a motion for mistrial for abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is only required if the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999).Preservation of Error
To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. TEX. R. APP. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000). Generally, a party's failure to timely and specifically object at trial forfeits any error. See Blue, 41 S.W.3d at 131. The proper method to preserve error regarding inadmissible evidence is to (1) object timely, (2) request that the trial court instruct the jury to disregard the objectionable evidence, and (3) move for a mistrial. Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App. 1984).Extraneous Offense
In her first issue, appellant contends the trial court erred by denying her motion for mistrial after the State improperly offered testimony of an extraneous offense. During the State's direct examination of Officer Johnson, Johnson testified that he recognized appellant because he had previously stopped her for a traffic violation. Appellant complains of the following testimony provided by Johnson in response to the State's inquiry into why Johnson remembered the previous traffic stop:A. [By Johnson]: She was southbound on the expressway. I stopped her, I don't remember what the violation was. She was with two other females. They were coming from Kingsville. They stated that they had court in Kingsville on a possession of marijuana charge.Appellant's counsel objected to the form of the manner in which the statement was elicited, and objected to the testimony on grounds that it was immaterial and prejudicial. Counsel also moved for mistrial. The trial court overruled the objection. The record reflects that the same evidence was introduced a second time, during defense counsel's cross-examination of Officer Bayreaux. The following exchange occurred:
Q. [Appellant's counsel]: And at what point, isn't it at that point that you talk to Mrs. Zayas that you then call Officer Johnson to come-or not Officer Johnson to come-but asked for a back up, or assistance?
A. [Officer Bayreaux]: No. After I asked them for their identification card, their driver's license, I ran a check on both of them, of their driver's license. Mrs. Cedillo was clear, and it came back on Mrs. Zayas, had a possession of marijuana charge.
[Appellant's Counsel]: Your Honor, I object. That's unresponsive. I move for a mistrial and ask the jury to be instructed to disregard the last statement.
THE COURT: All right. Mistrial is denied. Only answer the question, please.Immediately after the above exchange, appellant's counsel proceeded to ask Officer Bayreaux the following question:
Q. [Appellant's Counsel]: [I]sn't it a fact sir that the only reason that you stopped these people is because you ran a NCIC and a TCIC and you found out that Mrs. Zayas had a previous arrest for possession of marijuana, isn't that correct?On appeal, appellant argues that the trial court erred in admitting evidence of the extraneous offense because its probative value was outweighed by its prejudicial effect. She cites Texas Rules of Evidence 401, 403, and 404(b) in support of her contention. The State responds that appellant has not preserved this complaint for review because (1) appellant did not object under rule 404, (2) the objections raised did not specify that the testimony was not relevant or involved extraneous offenses, and (3) appellant did not object every time the same evidence was offered. We agree. At trial, appellant's objection to the first mention of the extraneous offense complained of (1) form, (2) prejudice, and (3) immateriality. The second objection was solely made on grounds that the answer was non-responsive. An objection under both rules 404(b) and 403 is required to preserve error regarding the admission of evidence of an extraneous offense. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1991) (op. on reh'g). Appellant did not object on these grounds. If a complaint on appeal does not comport with an objection made at trial, the issue is not preserved for appellate review. See TEX. R. APP. P. 33.1; Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996). Thus, appellant has failed to preserve the error for review. Moreover, even if the issue had been preserved, and assuming there was an actual error in the admission of the testimony, appellant forfeited her right to complain of any error because the same evidence came in, without objection, through testimony solicited by appellant's counsel. See Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App. 1993) (stating that an appellant waives any error regarding improperly admitted evidence if that same evidence is brought in later by the defendant or by the State without objection); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). Thus, even if it were properly before this Court, we would overrule appellant's first issue.