
Opinion issued September 17, 2009











In The
Court of Appeals
For The
First District of Texas



NO. 01-07-00681-CR
NO. 01-07-00682-CR



DAVID ASHIRE, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 182nd  District Court
Harris County, Texas
Trial Court Cause Nos. 1110302 & 1110303



O P I N I O N
	A jury convicted appellant, David Ashire, of theft of property valued over
$100,000 and under $200,000 and assessed punishment at life in prison and a fine of
$10,000 (trial court cause number 1110302; appellate cause number 01-07-00681-CR).  See Tex. Penal Code Ann. §§  31.03(e)(6) (Vernon Supp. 2008), 31.09
(Vernon 2003).  The jury also convicted appellant of securing execution of a
document by deception of a person at least 65 years old, namely, a purchasing
document for a GMC truck valued over $20,000 and under $100,000, and the jury
assessed punishment at 20 years in prison and a fine of $10,000 (trial court cause
number 1110303; appellate cause number 01-07-00682-CR).  See id. § 32.46(a)(1),
(b)(5), (c-1) (Vernon Supp. 2008).  Appellant challenges the legal and factual
sufficiency of the evidence supporting each conviction.  He also challenges the trial
court's admission of testimony regarding an unadjudicated extraneous offense and
victim-impact testimony about this offense during the punishment phase.
	We affirm.
 Background

 Dr. John Keating lived with his wife, Helen, in Humble, Texas.  At trial, Dr.
Keating was 88 years old.  They had no children, and they lived on a fixed income,
with occasional monetary gifts from their only living relative, Mrs. Keating's sister,
who lived in California.  Mrs. Keating handled the couple's finances, writing checks
and paying bills.
	Mrs. Keating testified that her husband had memory problems and had suffered
two head injuries that affected his memory: a fall from a bed before they met 
appellant and a fall in a Kroger parking lot after they had met appellant.  She said Mr.
Keating's memory was better when they first met appellant, but "it was getting down
already then."  She said:
	Well, it was beginning to fade.  He isn't as--he wasn't as bad then as he
was after he had his accident in Krogers.  His memory was pretty good
considering he was in his late 80s.  He did pretty good.  He remembered
a lot of things, but it was beginning to fade.  I don't know how to
explain it.  It was just a gradual downward climb that he had with his
memory.

	At one point in her testimony, Mrs. Keating became confused and said that her
memory was dwindling also, saying, "I'm getting like my husband.  I'm forgetting." 
	Two of the Keatings' neighbors, Clifford Thoe and Charity DeLeon, visited
them regularly and helped them around the house.  Thoe testified that he had known
the Keatings for 20 years and that over time, Dr. Keating became forgetful.  Thoe's
wife also testified that Dr. Keating had become forgetful and "absent-minded."  Thoe
testified that he helped Dr. Keating with car maintenance and repair, yard work,
errands, and driving him places, for example, to get a haircut.  DeLeon testified that
she had lived across the street from the Keatings for seven years.  She said that she
mowed their lawn once a month and that they sometimes paid her.  She also testified
that they shared the cost of garbage pickup, because the Keatings did not want to
spend money on that.  DeLeon said that Dr. Keating was very business-like when she
first met him, but he grew increasingly confused beginning around 2005 or 2006: 
"[I]t seemed that he would lose [his] train of thought when he would talk to me.  He
would often talk to me, and he would get a dazed look in his eye and kind of like he
didn't really remember who he was talking to about what."  DeLeon said she never
saw anyone visit the Keatings regularly before they met appellant.  Both Thoe and
DeLeon testified that they believed Dr. Keating was unable to make decisions about
the disposition of his property.
	Humble Police Detective Eric Squier, who investigated appellant's crime,
testified that he met Dr. Keating several times before the investigation in this case. 
Once, Squier found Dr. Keating stopped in a moving lane of traffic unable to find his
way to the hospital, a place where the detective had previously seen Dr. Keating's car,
which was only a few blocks away.  On a separate occasion, Squier observed that Dr.
Keating had not replaced his gas cap and was spewing gas from the car.  When Squier
stopped Dr. Keating to tell him, Mrs. Keating got out of the vehicle, and Squier
noticed she that was exposing herself.  Mrs. Keating told Squier that she had
forgotten to button her shirt.
	In May 2006, the Keatings had a roof leak.  Thoe testified that he had caulked
the roof before he went on vacation and that he had promised to fix it more
permanently when he returned.  Mrs. Keating testified that Thoe had told her husband
that he would fix the roof, but did not follow through.
	One day, appellant drove down the Keatings' street in a truck bearing a roofing
company sign and saw Dr. Keating sitting outside.  Appellant introduced himself as
Jim Brooks and struck up a conversation, after which the Keatings decided to hire
appellant to fix their roof.  Initially, Mrs. Keating paid appellant $1,925 in a check
made out to Juanita Mitchell, whom appellant said was his boss.  She said she thought
that it was payment in full, but she later came to learn that it was a down payment.
She later gave appellant $250 for roofing materials.  Appellant fixed the roof, and the
Keatings had no further problems with it.
	Appellant came back to visit and to ask if they were satisfied with the roof
repairs.  Mrs. Keating said that appellant visited them several times a week from May
through August 2006, inquiring about them and generally behaving in a pleasant
manner.
	In early June 2006, Mrs. Keating gave appellant $1,025.  She testified, "I don't
remember why I gave it to him, but I gave it to him.  And don't ask me why because
I don't know why because I thought he was an honest person."  She said that she
trusted him.  Mrs. Keating did not know and could not recall if her husband had
helped her make out the $1,025 check.  Mrs. Keating testified that she gave appellant
money from her credit card account twice because he asked for it.  Later, she
vacillated, saying that she thought that it was twice, but she was not sure.  She
testified, however, that appellant paid her back $500 of the money that she gave him.
	Mrs. Keating said that appellant was a "good friend" and was "so helpful, I fell
for him" when she was hospitalized during that summer.  Appellant and a woman the
Keatings knew as appellant's wife brought her get-well cards while she was in the
hospital. (1)  Dr. Keating testified that appellant once gave him a pocket watch that he
had inherited from his father.  Once, appellant told a salesman at a jewelry store that
Dr. Keating was his father, and Dr. Keating testified that this flattered him, saying,
"I think that it elevated my ego.  That's the best way I can say, that somebody liked
me for that."  Mrs. Keating said that appellant took them out to eat several times at
places "like Denny's and the Waffle House and just bought us our lunch or our
breakfast."  Only later did Mrs. Keating realize that appellant took them out only after
she had given him money, and they were in essence paying with their own money.
	Appellant asked the Keatings to accompany him to a car dealership to see the
kind of truck that he was planning to buy, ostensibly for work.  Mrs. Keating testified
that appellant did not ask them to cosign for the truck, but Mrs. Keating said that she
was perplexed about why her husband went into the office and signed the papers
while she and appellant waited outside.  She testified that she thought that her
husband was a cosigner and "that's what my husband must have thought too."  Later,
they received an insurance bill and realized that they had bought the truck.  Dr.
Keating testified, "Well, I thought I was going to cosign, but it ended up that I
actually signed it myself, for it myself.  So, I got nailed to--about it."  Dr. Keating
could not remember the details and did not want to pay for it, but he "felt at the time
that it was incumbent upon me to do it . . . . Don't ask me why."  However, Dr.
Keating testified that he told the salesmen that he was buying a truck for his son.  The
sales consultant testified that Dr. Keating seemed competent at the time to purchase
the vehicle.
	Within days, appellant tried to cancel the extended warranty contract, and he
became upset when he learned that he could not receive a cash refund for a
cancellation.  Appellant then returned to the Keatings' house and told them that he
had to buy another truck because he had had problems with the first one.  They
believed him.  Appellant asked for money, and Mrs. Keating gave him $1,000 for a
down payment for a second truck.  The Keatings accompanied appellant to a Hummer
dealership, where again Dr. Keating signed for the truck purchase.  As with the first
truck purchase, the Keatings did not realize that they had purchased the Hummer until
they received a bill for the insurance.  The Hummer sales engineer testified that Dr.
Keating "seemed to be fine," but that he "barely had any words with the man."  He
said that appellant gave him the information needed to complete the credit
application.  The Hummer dealership finance manager testified that he had no
interaction with Dr. Keating, but if asked by police, he would have told them that Dr.
Keating was of sound mind.
	Mrs. Keating testified that she paid the insurance bills because she thought that
she had to do so.  The Keatings never drove or had the keys to either truck.  At trial,
Dr. Keating did not recall buying a Hummer, and he testified that he could not recall
many things, generally.
 Appellant also asked the Keatings to accompany him to a jewelry store to look
at a Rolex watch.  Mrs. Keating said they went along just for the ride.  Mrs. Keating
testified that she and her husband sat together, near the security guard, the whole time
that they were in the jewelry store.  Dr. Keating said that he did  not intend to buy a
Rolex for appellant, but it just worked out that way.  He also testified that he vaguely
remembered signing a document for a Rolex and that someone might have told him
what to write on the credit application, but he did not recall.
 The jewelry-store salesman testified that appellant introduced himself as Jim
Keating and that appellant told him that the Keatings were his parents.  Appellant told
the salesman that his father was buying him a Rolex.  The salesman testified that Dr.
Keating told him numerous times that he was buying a Rolex for his son.  The
salesman said that appellant and the Keatings left for 20 minutes, then they returned
to buy the watch.  The salesman helped Dr. Keating fill out the credit application. 
The salesman testified that Dr. Keating seemed to know what he was doing and to
understand the terms of the contract.  However, the salesman believed that something
was amiss based on the "small-talk" that he had with Dr. Keating.  The salesman
asked the security guard to follow the Keatings and appellant to the parking lot and
to record the license plate on their vehicle.  Nevertheless, he sold them the watch,
stating at trial that company policy prevented him from refusing an approved sale
based on his subjective belief that the purchaser might not be of sound mind.  A week
or two later, Dr. Keating sent back the credit card that he received with a note saying
that he did not order it.
 In August 2006, Thoe visited them to see how they were faring in the heat.  He
knew that they would be reluctant to use their air conditioner because they could not
afford the increased utility bills.  When he found them sweltering in their house, he
bought and installed a window unit air conditioner.  While he was installing it,
appellant came to visit them.  Mrs. Keating told Thoe that appellant was a good friend
who had fixed their roof.  She also told Thoe that she had given appellant money. 
Theo became suspicious and told Mrs. Keating not to trust appellant.
	After discussing this situation with DeLeon, Thoe took the Keatings to the
police to report the apparent fraud.  Thoe also took the Keatings to the Hummer
dealership.  Dr. Keating said that he had never been there before, but the salesmen all
remembered him.  They also went to the Keatings' bank to change their account
because appellant had previously accompanied Dr. Keating to the bank for the
purpose of giving appellant power of attorney over their accounts.  Although the bank
did not permit that change to be made without legal documentation, they nevertheless
wanted to safeguard their money from appellant.
	Appellant was arrested at the Keatings' house later that day, driving the first
truck that the Keatings had unwittingly purchased for him.  He gave the arresting
officer the name Jim Gill, and appellant was later convicted of failing to identify
himself to a police officer, a fact that became known to the jury during the
punishment phase of trial.  
	The jury convicted appellant of both aggregate theft and securing execution of
a document by deception.  During the punishment phase of trial, the State introduced
evidence of an unadjudicated 1995 hit-and-run fatality from Washington state.  A
police detective there had investigated a closed case, and by a series of fortuitous
events, had tracked down appellant, who had been on the run using numerous aliases,
allegedly committing at least one other crime, and fleeing after having posted bond
in another case.  In addition, the daughter of the man killed in the 1995 hit-and-run
collision testified.  The jury assessed appellant's punishment at life imprisonment
plus $10,000 for the aggregate theft conviction and 20 years' imprisonment on the
securing execution of a document by deception conviction.
Legal and Factual Sufficiency
Standard of Review
	When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas
v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  The standard is the same for
both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703
(Tex. Crim. App. 1995).  We do not resolve any conflict of fact, weigh any evidence,
or evaluate the credibility of any witnesses because this is the function of the trier of
fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v.
State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).  In conducting our review, we
resolve any inconsistencies in the evidence in favor of the verdict.  Matson, 819
S.W.2d at 843.
	When conducting a factual-sufficiency review, we view all of the evidence in
a neutral light.  Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We will
set the verdict aside only if (1) the evidence is so weak that the verdict is clearly
wrong and manifestly unjust or (2) the verdict is against the great weight and
preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.
2000).  Under the first prong of Johnson, we cannot conclude that a conviction is
"clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence
admitted, we would have voted to acquit had we been on the jury.  Watson v. State,
204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson,
we cannot declare that a conflict in the evidence justifies a new trial simply because
we disagree with the jury's resolution of that conflict.  Id.  Before finding that
evidence is factually insufficient to support a verdict under the second prong of
Johnson, we must be able to say, with some objective basis in the record, that the
great weight and preponderance of the evidence contradicts the jury's verdict.  Id.  In
conducting a factual-sufficiency review, we must also discuss the evidence that,
according to the appellant, most undermines the jury's verdict.  See Sims v. State, 99
S.W.3d 600, 603 (Tex. Crim. App. 2003).
	We may not substitute our judgment for that of the fact-finder.  King v. State,
29 S.W.3d 556, 563 (Tex. Crim. App. 2000).  The fact-finder alone determines what
weight to place on contradictory testimonial evidence because that determination
depends on the fact-finder's evaluation of credibility and demeanor.  Cain, 958
S.W.2d at 408-09.  As the determiner of the credibility of the witnesses, the
fact-finder may choose to believe all, some, or none of the testimony presented.  Id.
at 407 n.5.  The standard for reviewing the factual sufficiency of the evidence is
whether, after considering all of the evidence in a neutral light, the jury was rationally
justified in finding guilt beyond a reasonable doubt.  Watson, 204 S.W.3d at 415.
Theft Conviction
	In his first two issues, appellant argues that the evidence is legally and factually
insufficient to prove criminal intent to commit aggregate theft.  
	A person commits theft if he unlawfully appropriates property with intent to
deprive the owner of property.  See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp.
2008).  Appropriation of property is unlawful if it is without the owner's effective
consent.  See id. § 31.03(b)(1) (Vernon Supp. 2008).  Consent is not effective if it is 
"given by a person who by reason of advanced age is known by the actor to have a
diminished capacity to make informed and rational decisions about the reasonable
disposition of property."  See id. §§ 31.03 (b)(1), 31.01 (3)(E) (Vernon Supp. 2008). 
The indictment charged appellant with "appropriat[ing], by acquiring and otherwise
exercising control over property, namely, ONE WATCH, TWO MOTOR
VEHICLES, and CASH MONEY, owned by JOHN KEATING . . . ."  Therefore, we
will focus on Dr. Keating's capacity to make informed and rational decisions about
the reasonable disposition of property.
	Dr. and Mrs. Keating testified that appellant visited them several times per
week from May through August 2006, checking on them more frequently than their
neighbors.  Two neighbors, a police officer, and both Keatings testified that Dr.
Keating was confused, was disoriented, and had a progressively failing memory.  In
addition, the jury heard testimony from both Dr. and Mrs. Keating and had the
opportunity to evaluate their demeanor and failing memories themselves.  
	The jewelry store salesman, who felt bound by store policy to make the sale,
testified that he, too, felt that something was not quite right about Dr. Keating.  In the
case of each purchase, appellant instigated the purchase and drove the Keatings. 
Appellant drove and possessed two trucks that Dr. Keating had purchased; Mrs.
Keating testified that they never even had keys to the trucks.  Appellant negotiated
the purchase of the Hummer and gave the sales engineer the necessary credit
information before Dr. Keating signed the credit application.  Appellant
misrepresented himself at the jewelry store as the Keatings' son.  Appellant was
arrested driving the first truck that Dr. Keating had purchased, wearing the Rolex
watch. 
	Viewing the evidence in the light most favorable to the verdict, we hold that
circumstantial evidence supports a conclusion that appellant intended to deprive Dr.
Keating of his property.  A rational trier of fact could have found beyond a reasonable
doubt that appellant intentionally acquired and possessed property owned by Dr.
Keating, a man whom appellant knew had a diminished capacity to make informed
and rational decisions about the reasonable disposition of his property because of his
advanced age.  See Tex. Penal Code Ann. §§ 31.03(b)(1), 31.01(3)(E); Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798.  We overrule appellant's
first issue. 
	Viewing the evidence in a neutral light, we reach the same conclusion. 
Appellant's argument that, in essence, these were gifts and loans finds only
controverted support in the record.  Although there was testimony from the salesmen
that they did not observe any infirmity in Dr. Keating, the testimony also established
that they had but the barest interactions with Dr. Keating, whereas appellant saw him
several times a week.  Mrs. Keating testified that appellant had repaid only about
$500 in total.  Although the jewelry-store salesman testified that Dr. Keating said that
he was buying a Rolex for his son, he also testified that Dr. Keating returned the store
credit card within two weeks, denying that he had applied for it.  Both Dr. and Mrs.
Keating testified that they did not intend to make these purchases or did not recall
having made them.  Neighbors testified that the Keatings were on a fixed income and
refused to spend money on necessities, like air conditioning during the heat of a
Texas summer, because they could not afford to do so.  
	In convicting appellant, the jury clearly chose to believe some evidence and to
disbelieve other evidence and to assign varying weight to the testimony of the many
witnesses, as it is the jury's sole province to do.  See Cain, 958 S.W.2d at 408-09. 
Having considered all of the evidence in a neutral light, we conclude that the jury was
rationally justified in finding guilt beyond reasonable doubt.  See Watson, 204 S.W.3d
at 415.  We overrule appellant's second issue.
Securing Execution of a Document by Deception
	"A person commits an offense if, with intent to defraud or harm any person, he,
by deception: (1) causes another to sign or execute any document affecting property
or service or the pecuniary interest of any person . . . ."  Tex. Penal Code Ann.
§ 32.46(a)(1) (Vernon Supp. 2008).  Deception means:
	(A) creating or confirming by words or conduct a false impression of
law or fact that is likely to affect the judgment of another in the
transaction, and that the actor does not believe to be true; or

	(B) failing to correct a false impression of law or fact that is likely to
affect the judgment of another in the transaction, that the actor
previously created or confirmed by words or conduct, and that the actor
does not now believe to be true.

Id. § 31.01(1)(A), (B) (Vernon Supp. 2008).  The jury charge defined fraud as "to
falsely represent some fact or circumstance or to conceal some fact or circumstance
which should have been disclosed, in order to deceive another and cause the other to
act upon it to his legal injury."
	Dr. and Mrs. Keating testified that appellant wanted to show him a truck and
that Dr. Keating thought that he was going to cosign for it, not to purchase it.  They
did not realize that Dr. Keating had purchased the truck until they received a bill for
the insurance.  Although appellant was not in the room when Dr. Keating signed the
credit application, appellant later attempted to cancel the extended warranty and to
obtain a cash refund.  There is some evidence that appellant created or failed to
correct a false impression that Dr. Keating was cosigning for a truck that appellant
was buying.  Viewing the evidence in the light most favorable to the verdict, we hold
that the evidence is legally sufficient.  See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Drichas, 175 S.W.3d at 798. 
	Viewing the evidence in a neutral light, we conclude that it is factually
sufficient.  Although Mrs. Keating testified that appellant did not ask them to cosign,
she could testify based only on personal knowledge.  A rational jury could conclude
that she was unaware of whether appellant had asked her husband to cosign for the
loan. (2)  We will not disrupt a jury's determination of credibility or the weight to be
given particular evidence.  See Cain, 958 S.W.2d at 408-09.  We hold that the
evidence is factually sufficient, and we overrule appellant's fourth issue.
Punishment-Phase Evidence
Extraneous Offense
	In his fifth issue, appellant challenges the introduction of extraneous-offense
evidence regarding the 1995 hit-and-run collision.  
	A trial court has broad discretion in determining the admissibility of evidence
presented at the punishment phase of trial.  Henderson v. State, 29 S.W.3d 616, 626
(Tex. App.--Houston [1st Dist.] 2000, pet. ref'd).   "[E]vidence may be offered by
the state and the defendant as to any matter the court deems relevant to sentencing,
including but not limited to . . . any other evidence of an extraneous crime or bad act
that is shown beyond a reasonable doubt by evidence to have been committed by the
defendant or for which he could be held criminally responsible, regardless of whether
he has previously been charged with or finally convicted of the crime or act."  Tex.
Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008); Flores v. State,
125 S.W.3d 744, 746 n.1 (Tex. App.--Houston [1st Dist.] 2003, no pet.).  Evidence
is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.  See Tex. R. Evid. 401. 
	Evidence of the unadjudicated fatality hit-and-run was admitted only during the
punishment phase of trial.  Evidence was offered that the fingerprints from the car
responsible for the fatal hit-and-run matched the prints of a man named Tony Hill. 
The detective from Washington state testified that she compared Tony Hill's
fingerprints, which were taken when he was arrested in California, with appellant's
fingerprints and that she found them to be an exact match.  The detective identified
appellant as Tony Hill, whose photographic driver's license she had obtained.
Fingerprinting and photographic recognition are means to prove that the defendant
committed a crime.  Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984) (op.
on reh'g).  Furthermore, the jury was instructed to consider the evidence only if it
found the appellant to have committed the act beyond a reasonable doubt.  Moreover,
the evidence of the hit-and-run collision was relevant because it revealed a pattern of
lawbreaking, deception, and evasion.  We conclude that the trial court did not err in
admitting the extraneous-offense evidence.  We overrule appellant's fifth issue.  

Victim Impact Testimony
	In his sixth issue, appellant argues that the trial court erred in admitting
victim-impact testimony during the punishment phase of trial.  He does not specify
which statements he found objectionable; rather, he complains generally about the
testimony of the daughter of the man killed in the hit-and-run collision.  
	Before the start of the second day of punishment-phase testimony, the trial
court held a bench conference on appellant's motion in limine on extraneous offenses:
	DEFENSE COUNSEL:	Your Honor, just for the record I still do have
a Motion in Limine on some of the extraneous offenses.  I believe that
Mr. Keiter was able to bring his witnesses in.

	Do you want to make your proffer to the Court as to why you think
they're admissible?

	STATE:	Yes, sir.

	At this time the State will make a proffer for the following evidence.  We
have a Detective Julie Mitchell in from Washington State.  She flew in
last night, and I had an in-depth conversation with her this morning. 
She's able to confirm, through her investigation, that for a year she
attempted to track down the defendant.  She is in charge of the cold case
in this case where Tony Hill, who we are trying as David Ashire, was
responsible for a fatality hit and run and that--he had never been arrested
at that point because they didn't have fingerprints of him and she didn't
know who he was.  She works with other folks at the U.S. Marshals
Office and another detective.  I've instructed her that we could talk about
the fact that she talks to another detective about another possible case[ (3)]
but not what that case is about because I know that I cannot prove that
case beyond a reasonable doubt because I don't have those witnesses
here.  However, that goes to how she locates this defendant and how she
tracks him down.  Further, she can prove up the actual underlying offense
of failure to stop and render aid because they confirm-they still have the
vehicle in evidence that the defendant was driving on that date. 
Fingerprints are taken from that vehicle, and they match the prints that
were taken from this defendant when he was arrested in California.  The
D.A.'s office there, as well as her, are able to get confirmation that those
prints are, in fact, one and the same.

	We also have Mrs. Pellegrini here for that victim.  That victim is
identified as a Casper Hegrenes who is her father.  That's C-A-S-P-E-R,
H-E-G-R-E-N-E-S.  And she will be here to testify to how and what it's
like to be able to finally know who the person was that killed her father
in a failure to stop and render aid fatality and yet to face justice.

	DEFENSE COUNSEL:	I have an ongoing objection, of course, on the 	grounds that it is more prejudicial than probative on this case.

	Second of all, the other objection I have--and it's great--concern to
me-is for them to talk about another case out there because that may
leave the jury with the impression that it's another aggregate theft case,
that it's a murder case, that it's whatever.

	Now, if they can find a way of putting it in to bring this fatality accident
without saying that, then I can understand.  But that is exactly what
uncharged and unproved conduct is about.

	An unresolved case in front of this jury, in my opinion, is going to be
very prejudicial.  And if they cannot prove it, you know, as of yet beyond
a reasonable doubt, this jury should not even hear about it because of the
instruction that they get.  And, therefore, that would be prejudicial to this
defendant.  

	Now, I understand his need for this hit and run case, but I have a problem
with that detective saying about that other unresolved case out there,
Judge.

	STATE:	I'm not saying that it's unresolved, Judge.  You know, it's
the defendant's actions that we're talking about here, and I can't help that
he-- 

	THE COURT:	I'm not going to foreclose your being able to mention
that.

	STATE:	All right.

	And, Judge, that just reminded me of one other thing.  The way they're
looking for him is through a red Hummer and that's the vehicle they start
to look for.  I don't know if you want me to mention--I mean, I believe
that's relevant because that's the-- 

	THE COURT:	Sounds relevant to me.

	You may change my mind, if you wish.

	DEFENSE COUNSEL:	Okay.  Like I said, Judge, I just have that
Motion in Limine on file asking the Court to not allow this kind of
evidence in, in reference to the unresolved case issue.  And the detective
talking about that--what would be the Court's ruling on that?  Can the
detective say there's another open unresolved case?

	STATE:	I wasn't going that far.  I was just saying they were
conducting an investigation into another case and they realized that they
were, in fact, one and the same person that they were investigating.

	THE COURT:	That's fine.  

	DEFENSE COUNSEL:	So, my objection is-- 

	THE COURT:	Your objection is overruled.

	DEFENSE COUNSEL:	And in reference to the hit and run fatality?

	THE COURT:	It's overruled.

	DEFENSE COUNSEL:	All right, your Honor.
 
(Emphasis added.)

	Rule of Evidence 103 requires that a party state the specific ground for his
objection.  Tex. R. Evid. 103 (a)(1).  In addition, "[w]hen the court hears objections
to offered evidence out of the presence of the jury and rules that such evidence be
admitted, such objections shall be deemed to apply to such evidence when it is
admitted before the jury without the necessity of repeating those objections."  Id. 
Here, appellant's counsel objected to the hit-and-run fatality as an extraneous offense
generally and to the detective's testimony about it.  The trial court overruled both
objections.  Appellant's counsel did not object to victim-impact testimony, use the
words "victim impact," refer to objectionable victim-impact testimony, or identify any
testimony from the victim's daughter that he sought to exclude.  He did not raise the
objection to the victim's daughter's testimony that he attempts to raise here. 
Therefore, his appellate complaint about her testimony was not preserved by any
objections made during the bench conference. (4) See Tex. R. App. P. 33.1.
	During the punishment phase, the victim's daughter testified without objection
about her father's life, career, family, relationships, and condition after the accident
and about her anger about the accident, and her frustration with the initial police
investigation.  Appellant objected twice during her testimony based on victim impact,
and both times, the trial court sustained his objection.  
	STATE:	Can you tell us how [your father's hospitalization] affected
you and your family, watching him for the 29 days?

	WITNESS:	It was very disturbing.  For one, he never knew me.  He
never knew my sister.

	DEFENSE COUNSEL:	Judge, I'm going to object.  I believe there's
certain rules on victim impact evidence.  I think I've been lax so far.  I
object.

	COURT:	Sustained.
	. . . 

	STATE:	And this is your opportunity to tell the folks on the jury
overall how you feel [about] the fact that you've had to wait 12 years for
justice.

	DEFENSE COUNSEL:	Judge, I'm going to object.  I think we've heard
enough victim impact evidence.

	COURT:	Sustained.

	STATE:	Pass the witness, Your Honor.

	To preserve error for appeal, a defendant must obtain an adverse ruling by
objecting, requesting an instruction to disregard, or moving for a mistrial.  Cook v.
State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1996); Nethery v. State, 692 S.W.2d
686, 701 (Tex. Crim. App. 1985).  "It is well settled that when appellant has been
given all the relief he requested at trial, there is nothing to complain of on appeal." 
Cook, 858 S.W.2d at 473.  Appellant's objections were sustained.  He did not seek
an instruction to disregard or move for a mistrial.  Because appellant received all of
the relief that he sought from the trial court, there is nothing for him to complain of
on appeal.  See id.  We overrule appellant's sixth issue. (5)Conclusion
	We affirm the judgment of the trial court.


						Tim TaftJustice

Panel consists of Justices Bland, Sharp, and Taft. (6) 
Justice Sharp, concurring.
Publish.  See Tex. R. App. P. 47.2(b).
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