                                   NO. 07-10-00103-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL E

                                      JULY 13, 2011


                            RICHARD MARTINEZ, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


                 FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY;

              NO. D-1-DC-09-500119; HONORABLE WILFORD FLOWERS, JUDGE


Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.1


                                        OPINION


          Appellant Richard Martinez appeals from his jury conviction of the offense of

injury to an elderly individual and the resulting sentence of forty-five years of

imprisonment.       Through one issue, he contends the trial court erred by admitting

evidence of his prior convictions for retaliation and attempt to commit murder. We will

affirm.



          1
         John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
                                         Background

       In June 2009, appellant was indicted for the offense of injury to an elderly

individual.2     The indictment also included enhancement provisions, setting forth

appellant’s previous convictions for retaliation, attempt to commit murder, and two

burglaries.3

       In March 2009, appellant attempted to park his vehicle in an Austin parking

space reserved for members and staff of the Texas Senate. The parking lot attendant,

then 75 years old, approached appellant to tell him the space was reserved. Appellant

“cussed” at the attendant and drove away.          He then drove around the block and

returned. The attendant again told appellant he could not park in the reserved space.

At that point, appellant again cursed at the attendant and, the attendant testified,

“squirted water all over him,”4 whereupon the attendant began walking toward his

nearby truck to call police. When the attendant reached his truck, appellant was right

behind him. The attendant testified he was scared and raised his clipboard. Appellant

hit him in the face, knocked him down and began kicking him. The attendant was left

with a knot on his right cheek. The swelling and his headache lasted “about four days.”

       Two witnesses testified they saw appellant beating the attendant.         Appellant

testified in his own defense, admitting he struck and kicked the attendant. During cross-

       2
           See Tex. Penal Code Ann. § 22.04(1)(b)(1)(West Supp. 2010).
       3
           At the punishment stage of trial, appellant plead “true” to each enhancement.
       4
         A Department of Public Safety investigator who was among the officers who
responded to a call for assistance testified appellant told him, after Miranda warnings,
that “he had some holy water,” and had gone to the capitol building that day “to bless
the Capitol.” Appellant later testified he came to the capitol to speak with someone
about a disagreement with a parole officer over the terms of his parole.


                                              2
examination, appellant testified the attendant was “the aggressor,” that he seemed “to

be a very aggressive person,” and that appellant would not “touch anybody unless it is

in self-defense.”     At the conclusion of its cross-examination, the State received

affirmative answers from appellant to questions asking if he had “a conviction for

retaliation from August of 1995,” “an attempt to commit murder conviction from

September of 1989,” and “two burglary of a building convictions, felony convictions from

1982.” The defense voiced objections to the questions asking about the retaliation and

attempted murder convictions, based on Rules of Evidence 403 and 404(b), and “on

constitutional grounds.”     After a hearing outside the jury’s presence on appellant’s

objections, the trial court overruled them, noting the convictions also were “admitted as

a prior felony conviction for impeachment purposes.”

                                          Analysis

         In his sole issue on appeal, appellant argues the trial court reversibly erred when

it admitted testimony concerning his prior convictions for retaliation and attempt to

commit murder. The State argues appellant’s issue is not preserved for our review. We

agree.

         The substance of an objection at trial must comport with that asserted on appeal.

Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009). If it does not, the matter is

not preserved for appellate review. Id.

         On appeal, appellant presents his contention under the framework of Rule of

Evidence 609, arguing the factors set out in Theus v. State, 845 S.W.2d 874, 880

(Tex.Crim.App. 1992) required exclusion of the evidence of the retaliation and

attempted murder convictions. See Tex. R. Evid. 609. Appellant concedes he objected



                                              3
on different bases at trial. He effectively contends that his Rule 403 objection should be

treated as including an objection that the convictions were not admissible under Rule

609.

       We do not agree that an objection based on Rule 609 was inherent in appellant’s

voiced Rule 403 objection. See Deleon v. State, 126 S.W.3d 210, 214 n.2 (Tex.App.—

Houston [1st Dist.] 2003, pet. ref’d) (noting differences in application of Rules 403 and

609); Dawson v. State, No. 14-07-00652-CR, 2008 Tex.App. LEXIS 8320, at * 8-9

(Tex.App.—Houston [14th Dist.] Nov. 6, 2008, no pet.) (mem. op., not designated for

publication) (finding Rule 609 challenge not preserved by objections based on Rules

403 and 404); See also Adams v. State, No. 14-04-00536-CR, 2006 Tex. App. LEXIS

1020, at * 5-6 (Tex.App.—Houston [14th Dist.] Feb. 9. 2006, no pet.); Mills v. State, No.

05-02-01109-CR, 2003 Tex.App. LEXIS 9228, at *4-5 (Tex.App.—Dallas Oct. 30, 2003,

no pet.) (mem. op., not designated for publication) (both finding Rule 609 complaint on

appeal not preserved by trial objection to relevance).

       Appellant further contends that the record shows it was apparent to the trial court

that his voiced Rule 403 objection included the Rule 609 ground.5 Having examined the


       5
         See Tex. R. App. P. 33.1(a)(1)(A) (referring to occasions on which specific
grounds for complaint to trial court are “apparent from the context”). Appellant also
points to the bases underlying his motion in limine filed at trial with regard to the State’s
intentions to offer his prior convictions. He points out his motion referred specifically to
Rule 609. A grant of a motion in limine is only a preliminary ruling, and does not
preserve error in the admission of evidence; a separate trial objection must be made at
the time the evidence is offered for admission. Geuder v. State, 115 S.W.3d 11, 14-15
(Tex. Crim. App. 2003). See also Nobles v. State, No. 04-09-0234-CR, 2010 Tex.App.
LEXIS 2605, at *3 (Tex.App.—San Antonio April 14, 2010, pet. ref’d) (motion in limine
as to Rule 609 did not preserve error when no objection and ruling was obtained on that
basis at trial).


                                             4
record closely, we cannot agree with appellant’s contention. In particular, we agree with

the State that the court’s, and appellant’s, continued references to Rule 403 following

the trial court’s statement that the attempted murder conviction also was admissible “as

a prior felony conviction for impeachment purposes” indicates that both appellant and

the trial court were focused at that time on Rule 403.6 We conclude no objection based

on inadmissibility of the prior convictions under Rule 609 was preserved for review.

      Moreover, even had the issue been preserved and had we determined the court

erred by admitting evidence of the retaliation and attempted murder convictions, the

error was harmless.     Error in the admission of evidence of an extraneous offense

constitutes nonconstitutional error that is subject to harm analysis. Boyd v. State, 899

S.W. 371, 375-76 (Tex.App.—Houston [14th Dist.] 1995, no writ). We are to disregard

nonconstitutional error that does not affect the substantial rights of the defendant. Tex.

R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.   Russell v. State, 113

S.W.3d 530, 549 (Tex.App.—Fort Worth 2003, pet. ref’d), citing King v. State, 953

S.W.2d 266, 271 (Tex.Crim.App. 1997).




      6
         The State gave notice to appellant of its intention to offer evidence of the prior
convictions, pursuant to Rules of Evidence 404(b) and 609. Neither party on appeal
discusses the admissibility of appellant’s prior retaliation and attempted murder
convictions to rebut his claim of self-defense. See, e.g., Deleon, 126 S.W.3d at 213.
See also Lemmons v. State, 75 S.W.3d 513, 522-23 (Tex.App.—San Antonio 2002, pet.
ref’d) (extraneous offense evidence offered by the State to show murder defendant was
aggressor in the past was relevant to rebut his self-defense claim); White v. State, No.
11-08-00241-CR, 2010 Tex.App. LEXIS 5604, at *10 (Tex.App.—Eastland July 15,
2010, no pet.) (mem. op., not designated for publication) (similar finding).


                                            5
        The evidence of appellant’s prior retaliation and attempted murder convictions

was admitted at the very end of the State’s case and was not mentioned again, in either

testimony or argument. Additionally, testimony of disinterested witnesses supported the

parking lot attendant’s version of events, and appellant acknowledged striking and

kicking the attendant. We agree with the State that admission of the convictions did not

have a substantial and injurious effect or influence on the jury’s verdict.

        Accordingly, we overrule appellant’s sole issue and affirm the judgment of the

trial court.




                                                                James T. Campbell
                                                                     Justice




Publish.




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