                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-331-CR

MICHAEL MCCABE                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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           FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellant Michael McCabe appeals his conviction for evading arrest. In

three points, McCabe argues that the trial court erred by (1) upholding the jury

conviction without requiring the State to prove all elements of the offense, (2)

overruling his objection to the introduction of unadjudicated extraneous




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          … See Tex. R. App. P. 47.4.
offenses, and (3) overruling his objection to the State testifying outside of the

record. We affirm.

                     II. Factual and Procedural Background

      Around 2:30 a.m. on May 12, 2007, McCabe drove his four-wheeler on

a public street in The Colony past Police Officer Kyle Koiner. Officer Koiner

immediately turned on his lights, activated his siren, and pulled in behind

McCabe to stop him for illegally driving a four-wheeler on the street. McCabe

did not stop but continued to drive. Officer Koiner followed McCabe and at one

point his patrol unit was going around seventy-five miles per hour.       During

Officer Koiner’s pursuit, McCabe ran three stop signs, made several u-turns,

drove the wrong way down a one-way street, and eventually hit a curb, rolling

his four-wheeler and ejecting him from the vehicle.

      When Officer Koiner approached McCabe and told him to get on the

ground on his stomach, to put his arms out, and to put his face on the ground,

McCabe did not listen.    Only after Officer Koiner had repeatedly yelled the

commands, did McCabe comply. When Officer Koiner came into contact with

McCabe he noticed a strong odor of alcohol on McCabe’s breath and helmet

and observed that McCabe’s eyes were red. After backup arrived, McCabe was

handcuffed, placed into Officer Koiner’s patrol unit, and transported to jail.

While in Officer Koiner’s patrol unit, McCabe admitted that he had evaded


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Officer Koiner, stated that he couldn’t believe he was being arrested for riding

his four-wheeler drunk on the street, and asked if he could be charged with

misdemeanor evading as opposed to felony evading.

      The State charged McCabe with the state jail felony offense of evading

arrest.   The indictment included two enhancement paragraphs:        one for an

October 22, 2003 conviction, for possession of a controlled substance, and the

other for a January 21, 2005 conviction, for possession of a controlled

substance. McCabe pleaded not guilty to the offense of evading arrest but

pleaded true to both enhancement paragraphs. After a trial on the merits, a jury

found McCabe guilty of evading arrest.

      During the punishment phase of trial, the State questioned McCabe’s

probation officer regarding outstanding charges against McCabe in Florida.

McCabe timely objected on relevance grounds, and the trial court overruled the

objection. During the State’s closing arguments, the State said, “[B]ut for the

Grace of God, we don’t have a pedestrian or a car accident as a result of this

evading.” McCabe objected to the State’s argument on relevance grounds,

stating that any relevance would be substantially outweighed by the danger of

prejudice. The trial court overruled McCabe’s objection. The jury assessed

punishment at five years’ confinement and a fine of $5,000; the trial court

sentenced McCabe accordingly. This appeal followed.


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                      III. Felony Offense of Evading Arrest

      In his first point, McCabe asserts that the trial court erred by upholding

the jury conviction for third-degree felony evading arrest as alleged in the

indictment because the State failed to prove all the elements of the offense.

Specifically, McCabe argues that the evidence is legally insufficient to support

his conviction because the State failed to prove that he had a prior conviction

for evading arrest.

      The crux of McCabe’s argument rests on his assertion that the trial court

charged him with a third-degree felony under section 38.04(b)(2)(A) of the

penal code, which requires proof that a vehicle was used while fleeing a peace

officer and proof of a prior conviction for evading arrest. See Tex. Penal Code

Ann. § 38.04(b)(2)(A) (Vernon Supp. 2009). However, the indictment charged

McCabe as follows:

      MICHAEL MCCABE . . . did then and there, while using a vehicle,
      intentionally flee from Kyle Koiner, a person the defendant knew
      was a peace officer who was attempting lawfully to arrest or detain
      the defendant;

                        ENHANCEMENT PARAGRAPHS

      And it is further presented in and to said Court that before the
      commission of the offense alleged above, on the 22nd day of
      October, 2003, in cause number 0860267D, in Tarrant County,
      Texas, the defendant was convicted of the felony offense of
      Possession of a Controlled Substance in Criminal District Court No.
      4;


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      And it is further presented in and to said Court that before the
      commission of the offense alleged in the first paragraph above the
      defendant was convicted of the offense of Possession of a
      Controlled Substance on the 21st day of January, 2005 in Tarrant
      Country, Texas, in cause number 0947576D, in the Criminal
      District Court No. 1.

And, the trial court gave the following charge to the jury:

      The defendant, MICHAEL MCCABE, stands charged by indictment
      with the offense of Evading Arrest, alleged to have been committed
      in Denton County, Texas, on or about the 12th day of May 2007.
      To this charge the defendant has pleaded not guilty.

      Our law provides that a person commits the offense of Evading
      Arrest, if the person while using a vehicle intentionally flees from
      a person he knows is a peace officer attempting lawfully to arrest
      or detain him.

      Neither the indictment nor the charge include a sentence requiring proof

of a prior conviction for evading arrest. Thus, it is clear from the language in

the indictment and the jury charge that McCabe was not charged with a

third-degree felony under section 38.04(b)(2)(A) of the penal code. Instead,

McCabe was charged with a state jail felony under section 38.04(b)(1) of the

penal code. See id. § 38.04(b)(1)(B) (requiring only proof that a vehicle was

used in the flight from a peace officer). And his punishment was subsequently

enhanced by the two prior state jail felonies to which he had pleaded true. See

id. § 12.42(a)(1) (Vernon Supp. 2009) (declaring that a state jail felony is

enhanced to a third-degree felony “[i]f it is shown on the trial of a state jail



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felony punishable under Section 12.35(a) that the defendant has previously

been finally convicted of two state jail felonies”).

      Therefore, because McCabe’s sufficiency challenge rests solely on the

ground that the State failed to prove that he had a prior conviction for evading

arrest, and because we conclude McCabe was charged under section

38.04(b)(1), which does not require proof of a prior conviction for evading

arrest, we overrule McCabe’s first point.

                          IV. Unadjudicated Offenses

      McCabe argues in his second point that the trial court erred when it

overruled his objection to testimony regarding unadjudicated offenses during the

punishment phase of trial. Specifically, McCabe complains that the trial court

erred by allowing the State to elicit testimony from two character witnesses

regarding McCabe’s unadjudicated offenses in Florida.

      However, a complaining party must first preserve his complaint for our

review; that is, he must have presented to the trial court a timely request,

objection, or motion that states the specific grounds for the desired ruling if

they are not apparent from the context of the request, objection, or motion.

Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.

App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Further, the

trial court must have ruled on the request, objection, or motion, either expressly


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or implicitly, or the complaining party must have objected to the trial court’s

refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334,

341 (Tex. Crim. App. 2004).

      Additionally, an objection must be made as soon as the basis for the

objection becomes apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942

S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk

v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). And to preserve error,

a party must continue to object each time the objectionable evidence is offered.

Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528

U.S. 1026 (1999); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim.

App. 1991). A trial court’s erroneous admission of evidence will not require

reversal when other such evidence was received without objection, either

before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718

(Tex. Crim. App. 1998); Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim.

App. 1990), cert. denied, 501 U.S. 1259 (1991), overruled on other grounds

by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991).            This rule

applies whether the other evidence was introduced by the defendant or the

State. Leday, 983 S.W.2d at 718.

      The following evidence was admitted with objection during the

punishment phase of trial.


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Cross Examination (McCabe’s Probation Officer)

     Q. Now, Ms. Bennett, when you supervise [your parolees], do you
     talk with them?

     A. Yes, ma’am.

     Q. And is one of the things that you go over, especially when
     they’re first on your case load, their criminal history?

     A. Yes, ma’am.

     Q. And the defendant has a very extensive criminal history. Is that
     correct?

     A. Yes, ma’am.

     Q. All right. And as a matter of fact, he also has some
     outstanding charges in Florida that he told you about. Isn’t that
     correct?

     A. Yes, ma’am.

     [Defendant]: Objection. Relevance, Judge.

     [The Court]: Overruled.

     Q.   And is that for a felony possession of heroin and a
     misdemeanor possession of drug paraphernalia?

     A. Yes, ma’am.

     Q. Okay. And as far as you know, to this day does he still have
     an outstanding warrant for those?

     A. Yes, he does.




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      The following evidence was admitted without objection during the

punishment phase of trial.

Cross Examination (McCabe’s Mother)

      Q. Are you aware of his current outstanding warrant out of Florida
      for felony charges and misdemeanor charges?

      A. I don’t know what type of charges, misdemeanor or felony. I’m
      aware of the charges out of Florida, yes. They happened a long
      time ago.

      Q. But he still hasn’t taken care of them. Isn’t that correct?

      A. Not yet.

      Although McCabe timely objected to the State’s first line of questions

pertaining to his unadjudicated offenses in Florida, McCabe did not continue to

object to the State’s subsequent questions regarding the same unadjudicated

offenses. Consequently, McCabe failed to preserve this issue for review. See

Fuentes, 991 S.W.2d at 273. Accordingly, we overrule his second point.

                             V. Closing Argument

      In his third and final point, McCabe contends that the trial court erred by

overruling his objection to the State’s closing argument during the punishment

phase of trial. In particular, McCabe complains of the following statement by

the State: “But for the Grace of God, we don’t have a pedestrian or a car

accident as a result of this evading.”



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      The law provides for and presumes a fair trial free from improper

argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App.

1991). Proper jury argument encompasses one of the following: (1) an answer

to the opposing counsel’s argument; (2) a summation of the evidence presented

at trial; (3) a reasonable deduction drawn from that evidence; or (4) a plea for

law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.

2000). To determine whether a party’s argument falls within one of these

categories, we must consider the argument in light of the entire record and

consider the remarks within the context in which they appear. Gaddis v. State,

753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Sandoval v. State, 52 S.W.3d

851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).

      Here, the record shows that McCabe, while evading Officer Koiner, ran

three stop signs, made several u-turns, drove the wrong way down a one-way

street, hit a curb, and rolled his four-wheeler. During closing argument, defense

counsel argued,

      . . . I want you all to please remember the big picture, that we’re
      not here on a murder case, like the State would have you believe.
      We’re here on an evading on a four-wheeler case. This is not the
      crime of the century. This is somebody who was intoxicated and
      did something stupid that happened to be a felony.

      On appeal, the State contends the complained-of comment was proper

because it was a reasonable deduction from the evidence and aimed at


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answering defense counsel’s argument, namely correcting defense counsel’s

statement’s as to the gravity of the offense. We agree.

      It is well-settled that a prosecutor may answer the jury argument of

opposing counsel provided that the response does not exceed the scope of the

invitation. See Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988).

And, based on the evidence, it was a reasonable deduction that McCabe’s

actions could lead to someone being hurt. See Felder v. State, 848 S.W.2d 85,

95 (Tex. Crim. App. 1992). Thus, the prosecutor’s statement did not inject any

new or harmful facts and was proper jury argument. See Howard v. State, 153

S.W.3d 382, 385 (Tex. Crim. App. 2004). Accordingly, we overrule McCabe’s

third point.

                               VI. Conclusion

      Having overruled all three of McCabe’s points, we affirm the trial

court’s judgment.




                                          BOB MCCOY
                                          JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 12, 2009


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