                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00300-CR

ROBERT DOUGLAS RUDZAVICE JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F45363


                          MEMORANDUM OPINION


      Appellant, Robert Douglas Rudzavice Jr., challenges his conviction for burglary

of a habitation.   See TEX. PENAL CODE ANN. § 30.02(a) (West 2011).       In one issue,

appellant argues that the trial court erred in denying his motion for mistrial after the

introduction of certain extraneous-offense evidence. We affirm.

                                   I.    BACKGROUND

      The dispute in this case centers on events transpiring during the early morning

hours of February 19, 2011. Briana Rogers testified that she and appellant had been
dating on and off for several years and that she was pregnant with appellant’s child.

Despite a strained relationship with Rogers, appellant sent Rogers a text message

during the early morning hours of February 19, 2011, suggesting that they get together

to have sex. Rogers was not comfortable meeting up with appellant at that late an hour.

Moreover, Rogers testified that appellant did not get along with her stepfather,

Francisco Castaneda, and that Francisco had forbidden appellant from coming onto his

property. Rogers also admitted that, at the time of the incident, she lived with her

mother, Tina Castaneda, and Francisco. Because she was not comfortable meeting up

with appellant, and because appellant was not welcome at the Castanedas’ house,

Rogers “sexted” to appellant provocative pictures of herself in hopes of satisfying his

sexual desire. Taking the “sexted” pictures to be a sort of invitation, appellant drove

over to the Castanedas’ house.

       Upon arriving, appellant pounded on the door to the house. Francisco testified

that he opened the door and told appellant to leave. Rather than leaving, appellant,

who had clearly been drinking, told Francisco about Rogers’s pictures and demanded to

talk to Rogers.      Francisco recalled that he told appellant to leave once again and

instructed Tina to call the police. At this point, appellant forced open the door, entered

the house, and poked and shoved Francisco while demanding to talk to Rogers.

Appellant subsequently took a seat on the couch in the living room next to Rogers, who

observed the entire incident. Francisco walked toward appellant and told him to get

out of the house. Appellant stood up and poked Francisco once again. A struggle

ensued, and appellant quickly got Francisco in a chokehold. Francisco gasped for air

Rudzavice v. State                                                                  Page 2
and cried out that he could not breathe. In response to Francisco’s cries, Tina and

Rogers broke several decorative ceramic plates and vases over appellant’s head to get

appellant to let go of Francisco. Eventually, appellant released Francisco and walked

outside the house to wait for the police to arrive. When the police arrived, appellant

was outside pacing and yelling obscenities. Thereafter, appellant was arrested and

charged with one count of burglary of a habitation. See id.

          At trial, appellant pleaded “not guilty” to the charged offense, and appellant’s

counsel, in his opening statement, stated that appellant had no intention to harm

anyone that night; that appellant was invited to the house; and that the entire incident

was an elaborate scheme by Francisco and Tina to have appellant arrested because they

did not like appellant. Nevertheless, after hearing all of the evidence, the jury found

appellant guilty of the charged offense and sentenced him to ten years’ incarceration in

the Institutional Division of the Texas Department of Criminal Justice with a $5,000 fine.

Subsequently, appellant filed motions for new trial and in arrest of judgment, both of

which were overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal

ensued.

                                 II.    MOTION FOR MISTRIAL

          In his sole issue on appeal, appellant contends that the trial court abused its

discretion by failing to grant his motion for mistrial after the State introduced certain

extraneous-offense evidence. Specifically, appellant argues that the introduction of the

extraneous-offense evidence violated Texas Rule of Evidence 404(b). See TEX. R. EVID.

404(b).

Rudzavice v. State                                                                  Page 3
A.     Standard of Review

       We review the denial of a motion for mistrial under an abuse-of-discretion

standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this

standard, we uphold the trial court’s ruling as long as the ruling is within the zone of

reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings

when error is so prejudicial that expenditure of further time and expense would be

wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a

narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its

discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be

reached” or a conviction would have to be reversed on appeal due to “an obvious

procedural error.” Wood, 18 S.W.3d at 648 (quoting Ladd, 3 S.W.3d at 567).

B.     Discussion

       1. The Lake Incident

       The complained-of extraneous-offense evidence pertains to an incident that

transpired in January 2011 at Lake Pat Cleburne. Several witnesses, including Tina,

Francisco, Rogers, City of Cleburne 911 dispatcher Dianne Allen, Brad Balaban, and

Cleburne Police Officer Donnie Riddell, alluded to or described the incident.          In

particular, Balaban testified that, during the afternoon hours of January 15, 2011, Rogers

knocked on his door. Balaban recalled that Rogers “was barefoot and muddy and really

very distraught, so looked rough. Hair was all matted and stuff. She was kind—she

Rudzavice v. State                                                                  Page 4
needed some help.” Rogers told Balaban that appellant had beaten her up. Balaban

called the police.

       Officer Riddell responded to the call.      He recalled that Rogers’s “face was

swollen, she was covered with mud and dirt and she was crying.”               Apparently,

appellant had picked Rogers up from the Castaneda’s house to talk about their

relationship. When he realized that the relationship was ending, appellant punched

Rogers in the side of her face. Rogers tried to jump out of the vehicle when it stopped,

but appellant pulled her back inside. Rogers told Officer Riddell that appellant was

drunk and that he “was going to take her out to the lake and take care of her.” When

they reached the lake, Rogers tried to jump out of the vehicle again. Appellant tackled

Rogers, dragged her through the mud by her hair, jumped on her, and began punching

Rogers in the stomach in an attempt to kill the baby. Appellant eventually stopped

when he started to throw up. Charges were not filed because, according to Officer

Riddell, Rogers impeded the prosecution of the case.

       2. Preservation of Error

       To preserve error for appellate review, a complaining party must make a timely

and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must

correspond or comport with objections and arguments made at trial. Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex.

App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the

issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154

Rudzavice v. State                                                                   Page 5
S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding

that an issue was not preserved for appellate review because appellant’s trial objection

“does not comport with” the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189,

197 (Tex. Crim. App. 1999) (same).

       As stated earlier, appellant complains on appeal that the introduction of this

evidence violated Texas Rule of Evidence 404(b). See TEX. R. EVID. 404(b). However, a

review of the reporter’s record shows that appellant never objected to the introduction

of this evidence under Rule 404(b). Id. Instead, he lodged a few Rule 401 and 403

objections.1 See id. at R. 401, 403. In fact, in most of his objections, appellant’s trial

counsel argued that evidence of the lake incident was irrelevant to the charged offense.

See id. at R. 401. He did not argue that the extraneous-offense evidence was improper

character evidence. See id. at R. 404(b). Because he did not object to the extraneous-

offense evidence under Rule 404(b), we conclude that appellant’s complaint on appeal

does not comport with his trial court objections. See TEX. R. APP. P. 33.1(a); Dixon, 2

S.W.3d at 273; see also Wright, 154 S.W.3d at 241. And as such, we cannot say that

appellant has preserved this complaint for review. See Resendiz, 112 S.W.3d at 547;

Ibarra, 11 S.W.3d at 197; see also Wright, 154 S.W.3d at 241.




        1 Texas Rule of Evidence 401 pertains to the introduction of “relevant evidence,” which is

“evidence having 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.” TEX.
R. EVID. 401. Texas Rule of Evidence 403, on the other hand, allows the trial court to exclude “relevant
evidence” if the probative value of the evidence “is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.” Id. at R. 403.

Rudzavice v. State                                                                               Page 6
       3. Error, if any, is Cured

       And even if we were to broadly construe appellant’s trial court objections to fit

within the confines of Rule 404(b), we note that appellant failed to object each time the

State sought to introduce evidence of the lake incident and he did not obtain a running

objection to this evidence or lodge a proper objection in a hearing outside the presence

of the jury. See Haley v. State, 173 S.W.3d 510, 516-17 (Tex. Crim. App. 2005) (stating

that, under Texas law, a party must continue to object each time inadmissible evidence

is offered unless counsel has obtained a running objection or made a proper objection in

a hearing outside the presence of the jury); Martinez v. State, 98 S.W.3d 189, 193 (Tex.

Crim. App. 2003) (same); see also TEX. R. EVID. 103(a)(1).       Moreover, any error in

admitting evidence is cured when the same evidence is admitted elsewhere without

objection. See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); see also Leday v.

State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Therefore, because the extraneous-

offense evidence was admitted elsewhere without objection, any error in admitting the

evidence was cured. See Lane, 151 S.W.3d at 193; see also Leday, 983 S.W.2d at 718.

       Based on the foregoing, we cannot say that the trial court abused its discretion in

denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699-700; see also Wood,

18 S.W.3d at 648. Accordingly, we overrule appellant’s sole issue on appeal.




Rudzavice v. State                                                                    Page 7
                                    III.   CONCLUSION

       We affirm the judgment of the trial court.




                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 21, 2013
Do not publish
[CR25]




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