David Jay Lassiter v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00349-CR

David Jay Lassiter,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. F39976

MEMORANDUM  Opinion

        Lassiter appeals his convictions for second-degree-felony aggravated assault with a deadly weapon.  See Tex. Penal Code Ann. § 22.02(a)(2), (b) (Vernon Supp. 2006).  We affirm.

        In Lassiter’s one issue, he contends that the trial court erred in overruling Lassiter’s objection to extraneous evidence of Lassiter’s possession of weapons other than those he used in the charged offenses.  First, Lassiter argues that the State failed to give notice of its intent to offer the evidence.  Next, Lassiter argues that the evidence was irrelevant.  Lastly, Lassiter argues that the evidence did not constitute same-transaction contextual evidence.

        “As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . .”  Tex. R. App. P. 33.1(a).  “[A] party’s complaint is timely if the party makes the complaint as soon as the grounds for it become apparent.”  Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (citing Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991)); see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007), petition for cert. filed, __ U.S.L.W. ____ (U.S. Apr. 17, 2007) (No. 06-11774); Esquivel v. State, 506 S.W.2d 613, 617 (Tex. Crim. App. 1974).  In order to preserve a contemporaneous complaint made before the jury, “an objection must be . . . made each time inadmissible evidence is offered.”  Haley v. State, 173 S.W.3d 510, 516-17 (Tex. Crim. App. 2005) (citing Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003)); accord Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  “[A]ny error is not preserved,” moreover, where “the same substantive evidence was elsewhere introduced without objection.”  Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002); accord Moore v. State, 999 S.W.2d 385, 402 (Tex. Crim. App. 1999); Nenno v. State, 970 S.W.2d 549, 563 (Tex. Crim. App. 1998); see Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Taylor v. State, 109 S.W.3d 443, 449 (Tex. Crim. App. 2003).

        Lassiter contends only that his motion in limine outside the presence of the jury preserved his complaint. However, “a motion in limine does not preserve error.”  Martinez, 98 S.W.3d at 193; accord Manns v. State, 122 S.W.3d 171, 190 (Tex. Crim. App. 2003); Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985); Thomas v. State, 477 S.W.2d 881, 884 (Tex. Crim. App. 1972). 

        Lassiter also attempted to make a running objection.  A running objection, however, may only be “made with the express permission of the trial judge.”  Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996) (quoting Sattiewhite v. State, 786 S.W.2d 271, 284 n.4 (Tex. Crim. App. 1989)); Ethington, 819 S.W.2d at 859 (quoting Sattiewhite at 284 n.4). 

        When the State first offered testimony of Lassiter’s possession of weapons other than those he used in the charged offenses, during a victim’s testimony concerning the search of Lassiter’s car and personal effects, the following colloquy occurred:

       Q.   Did you see them searching and finding weapons?

       A.    Yes, I did.

       Q.   And how did you feel about that whenever they found weapons?  Where did they find the weapons that you saw?

       A.    Well, the first one they found in his car—

               [DEFENSE]:  Judge, I’m going to object at this time again.  I’ll make a running objection.  The same objection as the previous one.

               THE COURT:  Overruled.

(10 R.R. at 42-43.)  Lassiter does not complain concerning the trial court’s denial of Lassiter’s requested running objection.

        The witness continued to testify as follows, for example, without objection, concerning guns:

       Q.   . . . Where did you see them find weapons?

       A.    Well, they found a large caliber gun in his car, inside the car in the passenger area.  And when they searched his jacket, they found a revolver.

(10 R.R. at 43.) 

        The deputy sheriff who searched Lassiter’s car also testified as follows, for example, without objection, concerning knives:

       Q.   . . . . After you found that gun in the jacket, did you ask the Defendant if he had any other weapons?

       A.    Yes, ma’am, I did.

       Q.   What did he say?

       A.    He said, “Yes, he did.” It was in the back of his vehicle in a canvas bag.

       Q.   And did you ask him for consent to search his vehicle?

       A.    Yes, ma’am.  He gave me verbal consent to search it.

       Q.   And did you search his vehicle?

       A.    I opened the trunk of his vehicle and pulled out a canvas bag out of the back of the vehicle, yes, ma’am.

       Q.   And did you, in fact, find more weapons in there?

       A.    Yes, ma’am, I did.

       . . . .

       Q.  . . . .  Can you identify those? 

       A.    This is a brown knife case with a red Swiss knife in it.  This is a gray broad-blade knife with the blade being approximately three inches long.  I believe it’s also serrated.  They were also inside the canvas bag where the knifes were. 

(10 R.R. at 148-49.) 

        Lassiter failed to obtain a running objection, or otherwise to preserve a timely, contemporaneous complaint concerning extraneous evidence of his possession of weapons.  We overrule Lassiter’s issue.

        Having overruled Lassiter’s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

             Justice Vance, and

             Justice Reyna

             (Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed August 29, 2007

Do not publish

[CR25]