Raymond W. Sullivan v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-463-CR





RAYMOND W. SULLIVAN,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 92-175-K26, HONORABLE WILLIAM S. LOTT, JUDGE PRESIDING

PER CURIAM

Appellant pleaded guilty before a jury to three counts of aggravated sexual assault of a child. Tex. Penal Code Ann. § 22.021 (West 1989). Appellant also pleaded true to the allegation of a previous felony conviction. The jury returned verdicts of guilty on each count and assessed punishment for each at imprisonment for life and a $10,000 fine. The district court rendered judgment on each count.

In his first point of error, appellant contends the district court erroneously admitted testimony concerning an unadjudicated extraneous offense in violation of article 37.07 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1993); Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992), aff'g, 813 S.W.2d 158 (Tex. App.--Dallas 1991). Appellant acknowledges that he did not object to the testimony, but relies on the overruling of his pretrial motion in limine. A motion in limine, however, will not preserve error. A defendant must object on the proper ground when the evidence is offered at trial. Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979); see Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103(a)(1).

Appellant seeks to excuse his failure to object by arguing that "[g]iven the state of the law at the time of appellant's trial, a reasonable defense counsel would have concluded that evidence of extraneous unadjudicated offenses was admissible at the punishment phase of trial." Appellant bases this argument on the several court of appeals opinions holding that the 1989 amendment of article 37.07 opened the door to unadjudicated offense evidence at the punishment stage. See, e.g., Coy v. State, 831 S.W.2d 552 (Tex. App.--Austin 1992), rev'd, No. 842-92 (Tex. Crim. App. Dec. 23, 1992) (not designated for publication). But at the time of appellant's trial, two courts of appeals had held to the contrary, most notably the Dallas court in Grunsfeld. Further, the Court of Criminal Appeals had taken most of these cases on petition for discretionary review and had yet to announce its opinion on the question. Under the circumstances, it cannot be said that the claim that unadjudicated offenses are inadmissible under article 37.07 was so novel that the basis of the claim was not reasonably available at the time of appellant's trial, or that the law was so well-settled by the Court of Criminal Appeals that an objection by appellant would have been futile. Black v. State, 816 S.W.2d 350, 368 (Tex. Crim. App. 1991) (Campbell, J., concurring).

Finally, the alleged error was not preserved by an objection out of the jury's presence. Tex. R. App. P. 52(b). In his remarks to the court in support of the motion in limine, counsel did not argue that article 37.07 barred unadjudicated offense evidence in this cause. To the contrary, he acknowledged that unadjudicated offense evidence might be admissible under certain circumstances. See York v. State, 566 S.W.2d 936, 938 (Tex. Crim. App. 1978) (relevant facts admissible under plea of not guilty also admissible under plea of guilty). Because the contention appellant now makes was not presented to the district court, point of error one is overruled.

Appellant's second point of error, by which he complains of the admission of details concerning his previous conviction, also was not preserved for review. Appellant did not object to the testimony in question, and his failure to object cannot be excused for the reasons discussed above. Point of error two is overruled.

The judgments of conviction are affirmed.

[Before Justices Powers, Kidd and B. A. Smith]

Affirmed

Filed: June 30, 1993

[Do Not Publish]