





JONES V. STATE                                                      







NO. 10-89-236-CR

IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO

* * * * * * * * * * * * *

Â Â Â Â Â Â Â Â Â Â STUART JONES,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant
Â Â Â Â Â Â Â Â Â Â v.

Â Â Â Â Â Â Â Â Â Â THE STATE OF TEXAS,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee

* * * * * * * * * * * * *

 From 54th Judicial District Court
McLennan County, Texas
Trial Court # 89-416-C

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *
Â Â Â Â Â Â Â Â Â Â Appellant was indicted for the offense of Aggravated Sexual Assault.
  He was found guilty
by a jury and assessed forty years in prison.  We will affirm.
Â Â Â Â Â Â Â Â Â Â In Appellant's first point, he complains that the trial court erred in entering a deadly
weapon finding in the judgment.  The court included the finding in the judgment based upon the
jury's verdict which found Appellant "guilty of the offense of Aggravated Sexual Assault, as
alleged in the indictment."  The indictment alleged Appellant did the following:
intentionally and knowingly cause the penetration of the female sexual organ of [the victim]
by the penis of the said [Appellant] without the consent of [the victim] by compelling [the
victim] to submit and participate by the use of physical force and violence and by
threatening to use force and violence against [the victim] and [the victim] believed that
[Appellant] had the present ability to execute said threat, and said [Appellant] used and
exhibited a deadly weapon to-wit:  a firearm, in the course of the same criminal episode
. . . .
This indictment contains all elements necessary for the offense of Aggravated Sexual Assault. 
Because the jury verdict read, "[w]e the Jury, find the defendant . . . guilty of the offense of
Aggravated Sexual Assault, as alleged in the indictment," it included an affirmative finding that
Appellant committed the offense while using a firearm.  See Tenery v. State, 680 S.W.2d 629, 635
(Tex.App.âCorpus Christi 1984, pet. ref'd).  Id.  The judgment needs no reformation since it
properly reads that the "jury found [a] deadly weapon was used."  Appellant's point is overruled.
Â Â Â Â Â Â Â Â Â Â In Appellant's next point he complains that the trial court erred in refusing to include an
instruction in the charge regarding his failure to testify at the punishment phase of the trial. 
During the punishment phase, Appellant's attorney made a request that the jury be instructed in
the charge to not consider the failure of Appellant to testify.  The judge answered the request
affirmatively and then instructed that the jury be returned to the courtroom.   The judge then read
the charge to the jury.  Appellant's requested instruction was omitted from the charge.  However,
nowhere in the record do we find an objection to the omission.  This was obviously an accidental
omission by the trial court and it is incumbent upon Appellant to object to the omission in order
to preserve error for our review.  See Thiel v. State, 676 S.W.2d 593, 594 (Tex.Crim.App. 1984). 
We overrule the second point.
Â Â Â Â Â Â Â Â Â Â Appellant complains in his third and fourth points that the trial court erred in allowing
testimony regarding his character at the punishment phase of trial which, he argues, subjected him
to cruel and unusual punishment under the sixth and fourteenth amendments to the United States
Constitution.  Testimony during the punishment phase is governed by article 37.03 of the Texas
Rules of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 37.07 (3) (Vernon Supp.
1991).  The code provides in part:
. . . evidence may, as permitted by the Rules of Evidence, be offered by the state and the
defendant as to any matter the court deems relevant to sentencing, including the prior
criminal record of the defendant, his general reputation and his character.
Rule 404 of the Texas Rules of Criminal Evidence allows the introduction of evidence as to the
prior criminal record and character of the accused at the penalty phase of the trial.  Tex. R. Crim.
Evid. 404(c).  Rule 405 of the Texas Rules of Criminal Evidence prescribes the methods of
proving character, which are as follows:
In all cases in which evidence of character or trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony in the form of an
opinion.  Provided however that to be qualified to testify concerning the character or trait
of character of an accused, a witness must have been familiar with the reputation, or with
the underlying facts or information upon which the opinion is based, prior to the day of
the offense. . . .
Tex. R. Crim. Evid. 405(a) (emphasis added).
Â Â Â Â Â Â Â Â Â Â Here, the witness was questioned by the prosecutor as follows:
[PROSECUTOR]:  I ask you if you know the [Appellant] in this case, Stuart
Jones?
[WITNESS]:  Yes I do.
[PROSECUTOR]:  And have you had occasion in the past to talk with him?
[WITNESS]:  Yes I have.
[PROSECUTOR]:  I'm going to ask you if you are substantially or were
substantially familiar with his reputation for being a peaceful and law abiding
citizen prior to January 29, 1989?
[WITNESS]:  Yes I was.
[PROSECUTOR]:  And was that from conversations from other people as
well as your own observations?
[WITNESS]:  Correct.
[PROSECUTOR]:  And what was that reputation.
[WITNESS]:  Bad.
The witness's actual testimony at trial was proper and did not violate Rule 405 by proving
character by specific acts, as argued by Appellant.  See Tex. R. Crim. Evid. 405(a).  When the
witness was questioned out of the presence of the jury, he testified he formed his opinion while
investigating a crime that had occurred in which Appellant was the victim.  The witness had
discussions with several individuals regarding Appellant and his reputation.  The witness's
testimony was based on discussions with others concerning Appellant, or on hearing others discuss
Appellant's reputation, and not just on his personal knowledge.  See Castillo v. State, 739 S.W.2d
280, 292 (Tex.Crim.App. 1987).  The trial court properly admitted the evidence and Appellant's
third and fourth points are overruled.
Â Â Â Â Â Â Â Â Â Â We affirm the judgment.


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â BOBBY L. CUMMINGS
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Before Chief Justice Thomas,
Â Â Â Â Â Â Â Â Â Â Justice Cummings and
Â Â Â Â Â Â Â Â Â Â Justice Vance
Affirmed
Opinion delivered and filed August 15, 1991
Do not publish

s has held that it is error for the trial court to refuse a request to
allow a defendant to cross-examine the prosecutor on his race neutral reasons
or to perfect a bill of exception.  Salazar v. State, 795 S.W.2d 187,
192-193 (Tex. Crim. App. 1990).Â  But Hill
did not ask to put on additional evidence, or to cross-examine the prosecutor,
or to perfect a bill of exception.Â  To hold
that, in the absence of a request to rebut or an objection to the refusal to
allow a rebuttal, a trial court errs by not stopping the proceeding and
specifically asking the defendant if he wishes to rebut the StateÂs allegations
before ruling on a Batson[1]
motion is something we will not do.Â  
It makes no sense to say that a party is not
required to bring to the attention of the trial court a request to allow a
rebuttal of the StateÂs race neutral reasons before bringing an issue on
appeal.Â  This is similar to the situation
when a defendant is about to be adjudicated upon a StateÂs motion to
proceed.Â  The defendant is entitled to a
separate punishment hearing but waives any complaint about the courtÂs failure
to have such a hearing absent a timely complaint brought to the trial courtÂs
attention.Â  See Vidaurri v. State, 49
S.W.3d 880, 885-886 (Tex.
Crim. App. 2001).Â  In Vidaurri, the defendant asserted he
should not be bound by the preservation of error requirement because Âhe was
sentenced immediately after being adjudicated guilty, leaving no time to lodge
an objection.ÂÂ  Id. at 885.Â 
The Court of Criminal Appeals held that VidaurriÂs issue had not been
preserved for review.Â  Id. at 886-887.Â 
Likewise, a defendant who raises a Batson
claim at trial forfeits his opportunity to complain on appeal about what his
response to the StateÂs race neutral reasons would have been when he fails to
timely present his evidence in rebuttal of the StateÂs race neutral reasons or
object to the trial courtÂs refusal to let him do so.Â  Tex.
R. App. P. 33.1.Â  
HillÂs second issue is not preserved and
presents nothing for review.
Â Â Â Â Â Â Â Â Â  The
trial courtÂs judgment is affirmed.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  TOM
GRAY
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Chief
Justice
Â 
Before
Chief Justice Gray,
Â Â Â Â Â Â Â Â Â  Justice Vance, and
Â Â Â Â Â Â Â Â Â  Justice Reyna
Affirmed
Opinion
delivered and filed January 26, 2005
Do
not publish
[CRPM]

Â 



[1] Batson v. Kentucky, 476 U.S.
79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


