Affirmed and Memorandum Opinion filed October 31, 2013.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-12-00576-CR

                        KENNETH RAY THOMAS, Appellant
                                              V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 174th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1307268

                    MEMORANDUM                         OPINION


      A jury convicted Kenneth Ray Thomas of burglary of a habitation,1 and the
trial court assessed his punishment at 45 years‟ imprisonment.           Appellant
challenges his conviction and sentence on grounds that the trial court (1) erred by
sustaining the State‟s objections during his cross-examination of complainant; and
(2) impermissibly used appellant‟s prior convictions to enhance the term of his
      1
          See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2011).
sentence. We affirm.

                                    Background

       Complainant James Harris testified at trial that he arrived home on May 21,
2011, opened the door, and turned on the porch light. He heard noises from within
the house; alarmed, he ran back outside. He then saw appellant run out the front
door, stumble and fall, and run down the street. When appellant fell, his face was
illuminated by the street lights, and complainant was able to get a good look at
him.

       Complainant pursued appellant while on the phone with a 911 operator. In a
call to the 911 operator, complainant described appellant as wearing a black t-shirt.
When appellant turned the corner, complainant lost sight of him for ten to fifteen
seconds; when complainant rounded the corner, he saw appellant walking on the
other side of the street. Complainant testified that appellant appeared “de-winded.”
Complainant then flagged down an arriving patrol car.              When the police
apprehended appellant, he was wearing a black shirt, and he stated at that time that
he did not break into complainant‟s house.         Appellant did not have any of
complainant‟s property in his possession, nor was any stolen property found along
the route appellant took from the premises.

       A jury found appellant guilty of burglary of a habitation that occurred on
June 15, 2012. After the punishment phase of trial, the trial court found that
appellant was a “multiple offender” based on the evidence of appellant‟s two prior
felony convictions, and assessed appellant‟s punishment at 45 years‟ confinement.
Appellant did not file a motion for new trial; he filed a timely notice of appeal.




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                                                 Analysis

I.     Confrontation Argument

       In his first issue, appellant argues that he was not allowed to “confront and
cross[-]exam[ine] the complainant about complainant‟s ability to describe
appellant‟s physical description” in violation of the Sixth Amendment to the
United States Constitution2 and in violation of Article 1, Section 10 of the Texas
Constitution.3 Appellant contends that the trial court reversibly erred by sustaining
the State‟s objections during his cross-examination of complainant.4

       Criminal defendants have a constitutionally protected right to cross-examine
witnesses. U.S. Const. amend. VI; Linney v. State, 401 S.W.3d 764, 772 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (citing Delaware v. Van Arsdall, 475
U.S. 673, 678 (1986)). “The scope of appropriate cross-examination is necessarily
broad: „A witness may be cross-examined on any matter relevant to any issue in

       2
            See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .”). The Sixth Amendment‟s right
of confrontation is a fundamental right and is applicable to the States by virtue of the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965).
       3
          See Tex. Const. art. I, § 10 (“In all criminal prosecutions the accused shall have . . . the
right of being heard by himself or counsel, or both, shall be confronted by the witnesses against
him and shall have compulsory process for obtaining witnesses in his favor . . . .”).
       4
          Because appellant has neither argued nor cited any authority that establishes that Article
I, Section 10 of the Texas Constitution secures him rights in addition to those in the Sixth
Amendment to the United States Constitution, we address his arguments in the context of the
Sixth Amendment. See Long v. State, 742 S.W.2d 302, 313 (Tex. Crim. App. 1987) (en banc)
(“[T]he interpretation given to Art. I, § 10 of the Texas Constitution closely parallels the
evolution of the Sixth Amendment as interpreted by the United States Supreme Court. The
reason that the guarantees are so identifiable goes beyond the similar language, that is, the source
of the right of confrontation is the same: English common law.”), overruled on other grounds by
Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990) (en banc); see also Arnold v. State, 873
S.W.2d 27, 33 (Tex. Crim. App. 1993) (“Appellant fails to analyze, argue or provide authority to
establish that his protection under the Texas Constitution exceeds or differs from that provided to
him by the Federal Constitution. We therefore do not address appellant‟s state constitutional
argument.”).

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the case, including credibility.‟” Linney, 401 S.W.3d at 772 (quoting Tex. R. Evid.
611(b)). Trial courts nonetheless retain wide latitude to impose reasonable limits
on cross-examination. Id. (citing Van Arsdall, 475 U.S. at 679). A trial court must
carefully consider the probative value of the evidence and weigh it against the risks
of admission. Id. (citing Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App.
[Panel Op.] 1982)). Potential risks include “„the possibility of undue prejudice,
embarrassment or harassment to either a witness or a party, the possibility of
misleading or confusing a jury, and the possibility of undue delay or waste of
time.‟” Id. (quoting Hodge, 631 S.W.2d at 758).

      The exclusion of a defendant‟s evidence is constitutional error only if the
evidence forms such a vital portion of the case that exclusion effectively precludes
the defendant from presenting a defense. Potier v. State, 68 S.W.3d 657, 665 (Tex.
Crim. App. 2002).      The Constitution does not relieve a defendant from the
obligation to comply with established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of guilt and innocence.
Linney, 401 S.W.3d at 772 (citing Chambers v. Mississippi, 410 U.S. 284, 302
(1973)).

      Appellant‟s first issue centers on a ruling during appellant‟s cross-
examination of complainant for the purpose of determining if complainant had
credibly identified appellant as his assailant.     During the cross-examination,
appellant asked complainant the following:

      DEFENSE COUNSEL: Now, I noticed that when you called 911 you
      did not give any description of the person in several respects. Number
      one, you didn‟t say: I think this guy is X years old. How old do you
      think the guy was that you were chasing?
      STATE: I object to speculation, Judge.
      THE COURT: Sustained.

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      DEFENSE COUNSEL: How old did he appear to you?
      STATE: Same objection, Judge.
      THE COURT: Sustained.
      DEFENSE COUNSEL: Did he appear to be older than you or younger
      than you?
      STATE: Same objection, Judge.
      THE COURT: Overruled.
      DEFENSE COUNSEL: You may answer.
      [COMPLAINANT]: Older.
      DEFENSE COUNSEL: Okay. And did you — were you able to
      approximate his height, his weight, or anything like that?
      [COMPLAINANT]: No, not really.
      DEFENSE COUNSEL: Did you form an opinion as to how old he
      appeared to you?
      [COMPLAINANT]: No, I did not.
      STATE: Same objection, Judge.
      DEFENSE COUNSEL: Judge, it‟s state of mind.
      THE COURT: Sustained.
To preserve error, including a constitutional error, for appellate review, the
appellant must make a timely, specific objection to the trial court and obtain a
ruling on the objection. Linney, 401 S.W.3d at 772-73; see Tex. R. App. P. 33.1.
On appeal, the point of error must correspond to the objection made at trial.
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Linney, 401
S.W.3d at 773.

      Here, the State objected to appellant‟s cross-examination arguing that
appellant‟s questions called for speculation.          Appellant responded that
complainant‟s testimony was admissible to show complainant‟s state of mind.
Appellant did not argue that the trial court‟s ruling violated his right to confront
and cross-examine a witness.       Appellant‟s argument in the trial court was
                                         5
insufficient to preserve a constitutional error. The right to elicit testimony during
cross-examination to show a witness‟s state of mind is distinct from the
constitutional right to confront and cross-examine a witness. See Linney, 401
S.W.3d at 773.

      We overrule appellant‟s first issue.

II.   Improper Sentence Argument

      In his second issue, appellant argues that his sentence of 45 years‟
imprisonment is improper and violates his due process rights because the trial court
erroneously failed to (1) arraign him on his previous convictions; and (2) find his
prior convictions to be true on the record. According to appellant, the trial court
should not have imposed a sentence as a “habitual offender” without arraigning
him on his prior convictions and finding them to be true.

      When the penalty stage of a bifurcated trial is held before the court alone,
there is no requirement that the court read the enhancement portions of the
indictment and receive a defendant‟s plea, “though such is the better and accepted
practice.” Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973); see also
Davis v. State, 970 S.W.2d 747, 749-50 (Tex. App.—Houston [14th Dist.] 1998,
no pet.); Simms v. State, 848 S.W.2d 754, 756 (Tex. App.—Houston [1st Dist.]
1993, pet. ref‟d). Because appellant filed an election to have his punishment
assessed by the trial court, it was not necessary for the court to read the
enhancement paragraphs in open court and for the court at that time to receive
appellant‟s plea.

      Further, “[r]ecitals contained in a judgment create a presumption of
regularity and truthfulness, absent an affirmative showing to the contrary.” Simms,
848 S.W.2d at 756 (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.


                                          6
App. 1984)). Here, the judgment reflects that appellant pleaded “true” to each
enhancement paragraph and that the trial court found both enhancement paragraphs
in the indictment to be true. There also was no dispute in the trial court about the
evidence presented for each enhancement. Instead of an “affirmative showing”
contrary to a presumption of regularity, the record establishes that appellant
responded “no objection” when the State offered evidence of his prior convictions
and read into the record appellant‟s stipulation to the truth of the evidence proving
each relevant prior conviction.    Accordingly, we conclude that the trial court
committed no error. See Davis, 970 S.W.2d at 749 (citing Reed, 500 S.W.2d at
499); Simms, 848 S.W.2d at 756.

      We overrule appellant‟s second issue.

                                    Conclusion

      We affirm the trial court‟s judgment.


                                       /s/       William J. Boyce
                                                 Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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