                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00317-CR

DERRICK DWAYNE GRANT,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2007-1417-C2


                           OPINION ON REMAND


      Derrick Dwayne Grant pled guilty to the offense of burglary of a habitation with

the intent to commit aggravated assault with a deadly weapon. TEX. PENAL CODE ANN.

§ 30.02 (Vernon Supp. 2010). He elected to have a jury determine his punishment,

which was assessed at fifty-five years in prison. In his original brief on appeal, Grant

raised two issues. He complained that the trial court erred by ruling that the State’s

peremptory challenges were not improperly racially motivated and that the trial court

abused its discretion in allowing the State to question Grant’s witnesses regarding

whether Grant should be placed on community supervision or sent to prison. On
original submission, we sustained Grant's first issue and reversed and remanded for a

new punishment hearing.

        The State appealed this Court’s decision to the Texas Court of Criminal Appeals.

The Court reversed and remanded the case to this Court for consideration of Grant’s

remaining issue.    Following remand, we gave the parties the opportunity to file

supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App.

1990). The State filed a waiver and Grant did not file a brief. We now consider the

remaining issue from Grant’s brief on original submission.           We overrule Grant’s

remaining issue and affirm the judgment of the trial court.

Improper Witness Questioning

        Grant complains that the trial court erred by allowing the State to question

witnesses presented by the defense regarding whether or not he should go to prison for

the offense. There were four witnesses, including Grant himself, who were questioned

regarding whether a person who shoots someone should go to prison.

Standard of Review

        We review the admission of evidence under an abuse of discretion standard.

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its

discretion if its ruling is outside the zone of reasonable disagreement. Id.

Preservation of Error

        The State contends that Grant’s complaints were not properly preserved at trial

or do not comport with their complaints on appeal. As a prerequisite to presenting a

complaint on appeal, a party must have made a timely and specific request, objection,

Grant v. State                                                                     Page 2
or motion to the trial court. TEX. R. APP. P. 33.1(a)(1)(A). Rule 33.1 also requires an

adverse ruling to preserve error for purposes of appeal. See Moff v. State, 131 S.W.3d

485, 489 (Tex. Crim. App. 2004) (recognizing that the rules of evidence prescribe that a

complaining party obtain “an adverse ruling from the trial judge . . . to preserve error in

the admission of the evidence”).

Timeliness

        An objection is timely if it is made as soon as the ground for the objection

becomes apparent, i.e., as soon as the defense knows or should know that an error has

occurred. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). Generally, this

occurs when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim.

App. 1995). If a party fails to object until after an objectionable question has been asked

and answered, and he can show no legitimate reason to justify the delay, his objection is

untimely and error is waived. Id.

Specificity

        The purpose of the specificity requirement in rule 33.1(a) is to (1) inform the trial

court of the basis of the objection and give it an opportunity to rule on it; and (2) give

opposing counsel the opportunity to respond to the complaint. Resendez v. State, 306

S.W.3d 308, 312 (Tex. Crim. App. 2009). Additionally, a party’s “point of error on

appeal must comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.

1995) (point of error raised on appeal must correspond to objection made at trial).



Grant v. State                                                                         Page 3
Failure to Continue to Object

        It is also necessary that the objecting party must continue to object each time the

objectionable question or evidence is offered, obtain a running objection, or request a

hearing outside the jury’s presence in order to preserve a complaint for appellate

review. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Fuentes v. State,

991 S.W.2d 267, 273 (Tex. Crim. App. 1999). When, in response to an objection, the State

rephrases the question and no objection is made to the rephrased question, there is no

adverse ruling to complain about on appeal. See Badall v. State, 216 S.W.3d 865, 872

(Tex. App.—Beaumont 2007-, pet. ref’d).

Testimony of Grant

        Grant testified on his own behalf. The questioning about which Grant complains

was:

        State: How many times do you think you should be able to shoot
               somebody before you go to the penitentiary?

        Grant: Can you repeat the question?

        State: How many times do you think you should be able to shoot
               somebody before the right thing is done and you go to the
               penitentiary?

        Grant: I don’t think anybody deserves to be shot—

        State: I didn’t ask you that.

        Grant: --period.

        State: I asked you, how many times do you think you should be able to
               shoot somebody before this jury does the right thing and sends you
               to the penitentiary?


Grant v. State                                                                       Page 4
          Defense counsel:     I object, Your Honor. He’s talking about the jury
                doing the right thing.         And, in fact, the objection more
                appropriately is the question evades (sic) the province of the jury.
                They’ll tell us. So we object to the question.

          State: Judge, he’s asking this jury for probation. In fact, he has told the
                 jury he would do probation. I’m asking him simply how many
                 times does he think he should be able to shoot somebody before he
                 goes to the penitentiary.

          Defense Counsel: Counsel has just made an argument and said this jury
                to do the right thing would be to send him to the penitentiary.

          The Court:   I’ll ask the State to rephrase the question.

          State: Thank you, Judge.

          State: How many times do you think you should be able to shoot
                 somebody before you go to the penitentiary? That’s the question.
                 How many times?

          Grant: Do you—

          Grant: Is he going to rephrase the question or what?

          The Court:   He did.

          Grant: Can you repeat it one more time?

          State: How many times do you think you should be able to shoot
                 somebody before you go to the penitentiary?

          Grant: I think none.

          Grant did not object to the question after it was rephrased after his initial

objection. Therefore, any objection to these questions was waived. Fuentes, 991 S.W.2d

at 273.




Grant v. State                                                                          Page 5
Testimony of Ripley

        Ripley was Grant’s manager at Target. On cross-examination, the following

questioning took place:

        State: But you’re going to tell those at Target that the Defendant is a good
               person to hire for Target.

        Witness:      I could recommend, yes sir.

        State: Okay, let me ask you if your opinion would change if he had shot
               your loved one. Would your opinion change?

        Defense counsel:  Your Honor, I’m going to object to that. He’s talking
              about his personal loved one. Of course. That’s an improper
              question.

        The Court:    Sustained.

        State: What kind of punishment, then, do you think somebody should get
               when they shoot somebody at least five times?

        Defense counsel:   Your Honor, that’s an improper question. He is
              attempting to evade (sic) the province of the jury. It’s patently
              improper unless he wants me to put some witnesses on in
              connection with that. It’s an improper question.

        State: Judge, I will say that my understanding is the objection that it
               evades (sic) the province of the jury is no longer even an objection.
               I don’t totally understand what he’s objecting to. The jury will
               make their decision.

        Defense counsel:  It is not within a witness’s capacity to render
              judgment on this case, Your Honor.

        The Court:    Sustained.

        Defense counsel:    Your Honor, at this point I’m going to ask that the
              jury be instructed to disregard the inquiry.

        The Court:    I’ll instruct the jury to disregard the last question of counsel.


Grant v. State                                                                            Page 6
        Defense counsel:     We move for a mistrial, Judge.

        The Court:    Denied.

        The first objection to Ripley’s testimony was waived due to Grant’s failure to

seek an adverse ruling after the trial court sustained his initial objection. See Moff v.

State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).          Grant did, however, properly

preserve his second objection and his motion for mistrial was denied. We will address

the denial of the motion for mistrial below.

Testimony of Velasquez

        Velasquez knew Grant through his step-daughter Priscilla, who was involved

with Grant at the time of trial. Grant complains about the following questioning:

        State: Mr. Velasquez, would your opinion change of Derrick Grant if he
               had shot Priscilla five times?

        Defense counsel:    Your Honor, I’m going to object to that. Again it’s—
              Judge, would my opinion change if Melanie, if she shot me five
              times? Of course. It’s an improper question. It plants prejudice,
              bias, and sympathy into the witness and into the minds of the jury.
              It’s apparently an illegal question.

        State: It’s not at all, Your Honor. I have every right to ask him that.

        The Court:    I’m going to allow the question.

        State: Mr. Velasquez, would your opinion of him change?

        Witness:      Yeah. I would feel just the same way I feel now.

        ***

        State: Okay. Would you welcome him into your family as happy father
               of the bride or stepfather of the bride?




Grant v. State                                                                      Page 7
        Witness:    Yeah. I feel he’s a good guy. I really do. I mean, what I see,
              you know, like I said. I don’t think he’s a bad guy.

        State: Would your opinion change if he abused your stepdaughter.

        Witness:      Yeah.

        Defense Counsel: Same objection, Judge.          Even with the Court
              overruling it or sustaining. We object to this line of inquiry, Your
              Honor. It is that line of inquiry attempting to infect prejudice into
              these entire proceedings.

        State: I’m just trying to figure out whether this witness would have a
               different opinion if some of the stuff was a little bit more personal
               to him. He’s already testified he wasn’t sitting in here and listening
               to the victim testify.

        The Court:    I’ll allow the question.

        In both segments of Velasquez’s testimony, Grant’s objection at trial was that the

testimony was unduly prejudicial.          However, on appeal, he complains that the

testimony improperly sought the witness’s opinion regarding what Grant’s sentence

should have been. His objection on appeal does not comport with his objections at trial.

Therefore, Grant’s complaint on appeal was not properly preserved. Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002).           Additionally, the second objection to

Velasquez’s testimony was not made timely because it was not made until after the

question had been answered and Grant did not justify the delay. Dinkins v. State, 894

S.W.2d 330, 355 (Tex. Crim. App. 1995).

Testimony of Jones

        Finally, Grant complains of the following questioning of Jones, Grant’s father:

        State: Let me ask you. What do you think should happen to someone
               who shoots another person at least five times?

Grant v. State                                                                          Page 8
        Witness:       What do I think should happen?

        State: Yeah.

        Witness:     I think if the individual demonstrated they know that he had
              the love for the person that he had for Daisy, I think, like I said, in
              my opinion, he snapped. Like I said, it was wrong for what he did.
              Definitely wrong. But I don’t think he should be jailed for 99 years
              or nothing like that. Everybody makes a mistake in life. They
              should have a chance to make that up.

        State: Surely you think he should go to the penitentiary somebody who
               does that?

        Witness:       In my opinion?

        State: Yes. Shoots another human.

        Witness:       It depends on the jury.

        State: I’m asking you. What do you think?

        Witness:       No, I don’t think so.

        State: Okay. You don’t think he should go to prison?

        Witness:      No. I’m not going to tell you to send my son to jail. I mean,
              that’s an honest opinion.

        No objection was made to any of Jones’s testimony. An objection was necessary

to preserve error. Any possible error to the admission of this testimony was waived

because there was not a timely objection.1 See TEX. R. APP. P. 33.1(a)(1)(A).

        Thus, the only complaint of Grant’s which was not waived is the denial of the

motion for mistrial that was denied by the trial court during the testimony of Ripley.



1 Because of our holding regarding preservation of error relating to Grant’s complaint, we do not reach
the merits of whether the substance of the questioning by the State was proper.

Grant v. State                                                                                  Page 9
Motion for Mistrial

          Mistrial is appropriate for only “highly prejudicial and incurable errors,” and

“may be used to end trial proceedings when faced with error so prejudicial that

‘expenditure of further time and expense would be wasteful and futile.’” Hawkins v.

State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Simpson v. State, 119 S.W.3d 262, 272

(Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App.

2000)).

          The trial court promptly instructed the jury to disregard the objected-to question

when requested as described above.2 See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim.

App. 2000) (“Ordinarily, a prompt instruction to disregard will cure error associated

with an improper question and answer.”).                  When a trial court instructs a jury to

disregard certain testimony or questions, we presume that the jury follows the trial

court’s instructions. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); cf. Wood, 18

S.W.3d at 648 (noting that a trial court is required to grant a motion for mistrial only

when the improper question is “clearly so prejudicial to the defendant and is of such

character as to suggest the impossibility of withdrawing the impression produced on

the minds of the jurors.”).

          After reviewing the record, we cannot conclude that the jury did not follow the

trial court’s instructions to disregard the State’s question. This is especially true in light


2 We recognize that the “invading the province of the jury” objection made by Grant is no longer
recognized as a valid objection. See TEX. R. EVID. 704; Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App.
1992) (“invading the province of the jury” no longer valid objection to opinion testimony). However, the
State does not raise that issue in its brief. Our holding should not be construed to express approval of the
substance of Grant’s objection or the propriety of the trial court sustaining the objection.

Grant v. State                                                                                      Page 10
of the fact that the other objections to similar questions were not preserved and the

other witnesses had actually answered the similar questions, whereas Ripley did not

ever respond to the question. Further, Grant was seeking community supervision for

burglarizing his ex-girlfriend’s apartment and shooting her five times with their four-

year-old son in the apartment. Evidence was presented during the trial regarding

Grant’s history of violence toward the victim.      Grant was not sentenced to the

maximum term or the upper range of it, nor was he sentenced anywhere close to the

minimum term for this offense. We find that the trial court did not abuse its discretion

in denying the motion for mistrial. We overrule issue two.

Conclusion

        Having overruled Grant’s remaining issue on appeal, we affirm the judgment of

the trial court.


                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed on Remand
Opinion delivered and filed February 16, 2010
Publish
[CRPM]




Grant v. State                                                                   Page 11
