                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-127-CR


DANIEL BERKLEY                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      A jury convicted Appellant Daniel Berkley of aggravated robbery and

assessed his punishment at forty-five years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice. The trial court sentenced

him accordingly.     In his sole point, Appellant challenges the trial court’s




      1
          … See Tex. R. App. P. 47.4.
admission of evidence of an extraneous offense.          Because we hold that

Appellant did not preserve his challenge, we affirm the trial court’s judgment.

      Monica DeLeon arrived at an orthodontist’s office with her two sons

when Appellant approached her, took her car keys, and drove off in her

Suburban. DeLeon and the children were able to get out of the vehicle before

Appellant drove off.   One of DeLeon’s sons identified Appellant in a photo

spread as the person who stole the Suburban.

      Five days later, Arther Curry was at a Family Dollar store on Miller Street.

She left the store, put her shopping bags in the back seat of her car, and

started to get into the car. At that point, Appellant, who was in a Suburban,

got out of the Suburban, walked behind Curry, pulled out a gun, and ordered

her to give him her purse.

      After Curry gave Appellant her purse, he went back to the Suburban,

climbed into the passenger’s side, and started going through the purse. Curry

walked up to the Suburban and asked Appellant to return her driver’s license.

Appellant returned Curry’s driver’s license and then instructed her to leave

before he shot her.    Curry identified Appellant from a photo spread as the

person who had robbed her.

      Less than two and a half hours later, Jerod Wilkerson was at The Home

Depot parking lot when his attention was drawn to Appellant. When Appellant

                                        2
left the parking lot in the Suburban, Wilkerson followed him.         Wilkerson

followed Appellant north on I-35 and called 911.        Wilkerson lost sight of

Appellant, but he gave a description of both Appellant and the Suburban.

Wilkerson identified Appellant out of a six-man lineup as the person who was

at The Home Depot.

      Pete Torres was also at The Home Depot and also followed Appellant in

his car. Torres provided the Suburban’s license plate number to the police.

That evening, the Suburban was found in the driveway of an abandoned house.

Approximately a week later, Fort Worth Police Detective Jim Varnon lifted

fingerprints from the Suburban and compared them to Appellant’s fingerprints

on a fingerprint card that Varnon had acquired earlier.      The prints on the

Suburban matched Appellant’s fingerprints on the fingerprint card. Varnon also

collected cigarette butts from the Suburban. The DNA on the cigarette butts

positively matched Appellant’s blood sample.

      The jury convicted Appellant of the aggravated robbery of Arther Curry.

      Appellant complains that the trial court abused its discretion by admitting

evidence that six days before he robbed Curry, Appellant had come upon Tyler

Green, who was with her five-year-old son, Nico, at T-Mart, and had grabbed

her around the waist as she was placing Nico in the car. Appellant ordered

Green to give him her keys, and when she refused, he began pulling on her

                                       3
purse.    Green yelled that Appellant was not going to get her keys, and

Appellant showed her that he had a gun, telling her that if she did not give him

the keys and her purse, he was going to kill her and her son. Appellant pointed

the gun at Green’s chest, and the fight moved to a “hot wings” restaurant

where Green tried to get an employee’s attention. Appellant shoved Green into

the door of the restaurant and then ran away.

      On appeal, Appellant argues that the extraneous offense evidence was

inadmissible under rule 403 because its probative value was substantially

outweighed by the danger of unfair prejudice. The State argues that Appellant

did not preserve that complaint for appeal because his objection was primarily

a rule 404(b) objection. In the trial court, Appellant argued that the evidence

was inadmissible generally because the defense had not challenged the deadly

weapon issue. Appellant also objected to the evidence as lacking in probative

value and inflammatory. The trial court stated that "issues . . . have been

raised" and admitted the evidence, but for a limited purpose, to which Appellant

did not object.   No magic words are required for an objection, nor is a

defendant required to state the rule of evidence in his objection.2     To that

extent, Appellant sufficiently preserved his complaint for appeal.


      2
       … Rivas v. State, 275 S.W.3d 880, 882 (Tex. Crim. App. 2009)
(“[T]here are no technical considerations or form of words to be used.
Straightforward communication in plain English will always suffice.”).

                                       4
      But Appellant’s objection to the offer of extraneous offense evidence for

all purposes was sustained. Appellant did not object further and did not ask for

a continuing objection. He did not object to the admission of the evidence for

the limited purpose stated by the court.    Rather, he acquiesced in the trial

court’s action of admitting the evidence for the limited purpose. Consequently,

he has not preserved a challenge to the admission of the extraneous offense

evidence for a limited purpose. 3

      We therefore overrule Appellant’s sole point and affirm the trial court’s

judgment.

                                           PER CURIAM

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

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

DELIVERED: April 2, 2009




      3
      … See Tex. R. App. P. 33.1(a)(1); Fuentes v. State, 991 S.W.2d 267,
273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); Mosley v. State,
983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526
U.S. 1070 (1999); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim.
App. 1991).

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