                                   NO. 07-03-0090-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    MARCH 30, 2005

                          ______________________________


                       EDWIN GAYLE HOLLOWAY, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;

          NO. 01-2554; HONORABLE CARTER T. SCHILDKNECHT, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


       Following his plea of not guilty, appellant was convicted by a jury of burglary of a

habitation and punishment was assessed by the trial court at 12 years confinement.

Challenging his conviction by one point of error, appellant asserts the trial court erred in
admitting an extraneous offense under the identity exception of Rule 404(b) of the Texas

Rules of Evidence. We affirm.


       Billy Wayne Whitehill’s home was burglarized and, among other items, a rifle was

taken. According to the investigating officer’s testimony, the rifle was recovered at the

residence of appellant’s estranged son. Donna Sue Holloway, appellant’s ex-wife, testified

that she was in appellant’s truck when he traveled to Whitehill’s home, entered, and later

exited with the rifle. She explained that she hid the rifle under a bed per appellant’s

instructions because she feared him. The next day, appellant and Donna took the rifle and

other gifts to appellant’s son’s mother and stepfather’s home and asked them to give the

rifle to appellant’s grandson as a Christmas gift.


       Appellant’s sole contention is that the trial court erred in admitting an extraneous

offense under the identity exception of Rule 404(b) of the Texas Rules of Evidence. The

State responds that appellant waived error, if any, by failing to properly object to the

admission of an extraneous offense and because his complaint on appeal does not

correspond with his objection at trial. We agree with the State.


       During the guilt/innocence phase of the trial, the State called Ernesto Amaya to

testify to extraneous offenses of retaliation and witness tampering. However, while Amaya

was testifying, the following colloquy occurred:




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      Q. We’ll get back to that. Right now I want to talk to you about an incident
      that occurred on November 24th this past year. Do you recall what
      happened then?
      A. Yes, sir. I had a pair of horse blinders stolen out of my barn.
      [Defense Counsel]: Objection. May we approach?
      Court: Yes, you may.
      (At the Bench, on the record.)
      [Defense counsel]: I think he’s going to try to get into this burglary of a
      building and his notice with regard to – I think he said he wanted to call him
      to testify about the retaliation and the tampering with a witness.
       [Prosecutor]: And that’s right, your Honor. And that was my initial –
       [Defense counsel]: We’re bringing another deal in here now.
       [Prosecutor]: That was my initial notice. Through the course of this
       proceeding and cross-examination he’s pointed the finger at another of my
       witnesses. And in order to rebut that inference that Donna Holloway
       committed this crime rather than Edwin, I have a right to bring in this
       extraneous offense to prove intent to rebut his claim that it was not Edwin
       Holloway that committed the crime. I have the right to bring in extraneous
       offenses to show – it shows he has the propensity to commit a burglary. It’s
       identical to the one in this case. I’m entitled to show that he was the one and
       not Donna Holloway.
       Court: That’s right.
       [Defense counsel]: I figured it would be.
       Court: You may proceed.


(Emphasis added).


       As a prerequisite for appellate review, an appellant must show he made a timely

objection stating with sufficient specificity the grounds therefor, comply with the Texas

Rules of Evidence, and obtain an adverse ruling either expressly or implicitly. Tex. R. App.

P. 33.1(a). See generally Martinez v. State, 91 3d 331, 336-37 (Tex.Cr.App. 2002)


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(applying the “raise-it-or-waive-it” forfeiture rule). Additionally, the objection at trial must

comport with the complaint raised on appeal. Trevino v. State 991 S.W.2d 849, 854

(Tex.Cr.App. 1999).


       Additionally, Rule 404(b) provides that extraneous acts may be admissible for certain

purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident, but are not admissible to prove a person’s

character or to show action in conformity therewith. The purposes designated, however,

are neither mutually exclusive nor collectively exhaustive. Montgomery v. State, 810

S.W.2d 372, 388 (Tex.Cr.App. 1991) (op. on reh’g). Once a Rule 404(b) objection is made,

the proponent of the evidence must persuade the trial court that the evidence has

relevance apart from character conformity. Id. at 387-88. If the trial court overrules the

Rule 404(b) objection and determines the evidence is relevant beyond its character

conformity, it has ruled on the full extent of the opponent’s Rule 404(b) objection. Santellan

v. State, 939 S.W.2d 155, 169 (Tex.Cr.App. 1997), citing Montgomery, 810 S.W.2d at 388.

Id. The opponent of the evidence must then make a Rule 403 objection requesting the trial

court to weigh the probative and prejudicial value of the evidence. Id.


       Assuming, arguendo, that the trial court’s action in allowing the parties to proceed

after stating “[t]hat’s right” is an implicit adverse ruling on appellant’s objection, we

nevertheless do not detect a specific Rule 404(b) or a follow-up Rule 403 objection to the

State’s questioning of Amaya on the extraneous burglary. Thus, because appellant


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couches his point of error and argument thereunder under Rule 404(b), it does not

correspond to the objection raised at trial. We conclude appellant’s contention was not

preserved for review. His sole point is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                                 Per Curiam


Johnson, C.J., not participating.


Do not publish.




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