                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         '
    JOSEPH MAURICE SUITERS, JR.,                                           No. 08-11-00050-CR
                                                         '
                            Appellant,                                           Appeal from
                                                         '
    v.                                                                 Criminal District Court No. 3
                                                         '
    THE STATE OF TEXAS,                                                  of Tarrant County, Texas
                                                         '
                            Appellee.                    '                    (TC # 1220849D)


                                                 OPINION

         Appellant Joseph Maurice Suiters, Jr. was charged by indictment with aggravated

robbery with a deadly weapon of Perla Esquivel. The State sought to enhance Appellant’s

punishment as a repeat offender based on a previous conviction for aggravated assault with a

deadly weapon. Appellant pled guilty to the offense and true to the enhancement paragraph, and

the case proceeded to a jury trial on punishment.1 The jury found Appellant guilty of the crime

as charged, found the repeat offender notice true and sentenced Appellant to life imprisonment in

the Texas Department of Criminal Justice.

                                               BACKGROUND

                The Charged Offense - Aggravated Robbery with a Deadly Weapon




1
  This is one of three companion cases. The cases were based on three different indictments for separate offenses
on separate occasions. In Suiters v. State, No. 08-11-00048-CR Appellant was charged with burglary of a
habitation with the intent to commit theft of Heather Brown on or about June 23, 2009, and in Suiters v. State, No.
08-11-00049-CR, Appellant was charged with burglary of a habitation with the intent to commit theft of Lance Hill
on or about September 18, 2009. Appellant pled guilty in all three cases and pursuant to a plea agreement with the
State, all three cases proceeded to a single, consolidated punishment trial. The jury rendered a separate verdict and
assessed a separate punishment in each case.
       On November 18, 2010, Appellant was charged by indictment with aggravated robbery

with a deadly weapon, a first degree felony. The victim, Perla Esquivel, testified that she was

working alone at Lone Star Title Loans on July 8, 2010. Appellant came into the office wearing

a black hoodie and dark sunglasses, and asked Esquivel about getting a car loan on the vehicle he

was driving. Esquivel told him she needed to do a quick evaluation and asked for his license and

car title. Appellant hesitated and then pulled out a gun and pointed it in Esquivel’s face.

Appellant then jumped over the counter and ordered her to get on the ground.

       Shortly thereafter, a smaller African-American male wearing a ski mask entered the

business. Once inside, he went around the corner and bound Esquivel’s arms and feet with duct

tape. Meanwhile, Appellant took the cash from the register. The two men proceeded to ransack

the entire office before leaving with the cash.

                   The “Enhancement Offense” - Aggravated Sexual Assault

       The State also sought to enhance Appellant’s punishment through a prior felony

conviction for aggravated sexual assault with a deadly weapon (the “enhancement offense”).

The enhancement offense included as a paragraph in the indictment which stated:

       REPEAT OFFENDER NOTICE: AND IT IS FURTHER PRESENTED TO
       SAID COURT THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR
       OFFENSES SET OUT ABOVE, THE DEFENDANT WAS FINALLY
       CONVICTED OF THE FELONY OFFENSE OF AGGRAVATED SEXUAL
       ASSAULT - DEADLY WEAPON, IN THE DISTRICT COURT OF TOM
       GREEN COUNTY, TEXAS, IN CAUSE NUMBER D-03-0358-J, ON THE 3RD
       DAY OF JUNE, 2004.

Appellant pled true to the enhancement offense as alleged in the notice.

       At the trial, the State introduced evidence regarding the enhancement offense through the

Appellant’s Texas Youth Commission records and judgments; the testimony of Detective David

Newsom, including his identification of several photographs taken from the crime scene of the



                                                  -2-
prior offense; (3) the testimony of BE, the victim in the prior offense; and (4) the testimony of

ME, BE’s mother.

        Detective David Newsom was the San Angelo police officer assigned to the prior sexual

assault case. He testified that on October 8, 2003, he responded to a call regarding a sexual

assault of child committed by Appellant, who was also a juvenile at the time. 2 During Detective

Newsom’s testimony, the State sought to introduce exhibits 87-94.                       These exhibits were

photographs taken at the scene of the crime back in 2003. At the bench, Appellant objected, “to

the exhibits and also the testimony as it’s going behind the facts of the case that is being used as

the enhancement paragraph on all of these cases.” The judge overruled the objection and the

photographs were admitted into evidence. Detective Newsom went on to testify regarding the

photographs. Appellant did not renew his initial objection or make any additional objections

throughout the remainder of Detective Newsom’s testimony.

        BE, the victim of the prior sexual assault, also testified regarding the enhancement

offense. According to BE, on October 8, 2003, she and Appellant rode the same bus home from

school.3 She got off the bus with the normal kids from her stop, and she started walking home.

As she walked home, Appellant started talking to her. He told her it was his mother’s birthday

and he had hidden his mother’s present underneath a board in an abandoned house just down the

street, but the board was heavy, and he needed help to lift it. BE agreed to follow Appellant to

the abandoned house and help him get the present.
2
   Detective Newsom testified that in October 2003, he was working in the Criminal Investigation Division of the
San Angelo Police Department where he was assigned to the Crimes Against Children cases. According to his
testimony, the police received a call regarding the offense and a patrol unit was dispatched to the victim’s house
where the officer took a report. In conjunction with police policy, an unidentified detective was then contacted.
After realizing a child was involved, the detective contacted Detective Newsom. Detective Newsom testified that he
went directly to the alleged scene of the crime.
3
  At the time of the offense, BE was thirteen years old and in the eighth grade. Appellant was in seventh grade.
Although she and Appellant rode the bus together, and she knew Appellant’s name and where he lived, she did not
know him personally.


                                                      -3-
        Once inside the house, Appellant tackled BE from behind.4 Initially, BE was able to

wiggle free. Appellant laughed and told her he was only joking around. BE realized she needed

to get out of the situation and told Appellant she had to leave. At that point, Appellant pulled a

pair of scissors from his pocket and held them to BE’s throat. He forced her to take off her

clothes, shoved her face first on to the mattress, and anally raped her. Afterward, Appellant

gripped either side of BE’s neck and began twisting it as hard as he could. According to BE, she

was kicking and scratching Appellant the whole time he tried to break her neck. Eventually,

Appellant stopped strangling her, but instead of giving up, he pulled the scissors back out and

started trying to stab her in the throat. BE fought as hard as she could but Appellant managed to

cut her throat a few times with the scissors. Finally, Appellant became tired and gave up. He

told BE that he would kill her if she ever said anything, picked up his backpack, and left.

        After the incident, BE ran home. Her stepfather was at the house and she immediately

told him she had been raped and they needed to call the police. Her stepfather reported the

incident and also called BE’s mother, ME, who was on her way home from work. Once BE’s

mother got home, she took BE to the hospital where she had a full rape exam. Also, while at the

hospital, several photographs of BE’s injuries were taken.

        ME, BE’s mother, was the final witness to testify for the State regarding the prior sexual

assault--the enhancement offense. ME essentially testified to the same facts as her daughter

regarding her daughter’s outcry and their visit to the hospital. In addition, the State sought to

introduce several of the photographs taken at the hospital. The photographs depicted BE’s

injuries including a “scratch or cut” on BE’s forehead and a “slice mark,” several bruises and red

marks on BE’s neck. Appellant stated “no objection” when the photographs were offered by the

4
   BE testified that at the time of the incident she was about 5’2” and 81-82 pounds, and Appellant was a couple
inches taller and “considerably heavier.”


                                                     -4-
State and admitted into evidence. Likewise, Appellant did not object during ME’s testimony

identifying and describing the images in the photographs.

                                 Verdict, Sentencing, and Appeal

          In accordance with Appellant’s pleas, the jury entered a finding of guilty as to the

charged offense and found the prior conviction, as alleged in the enhancement paragraph, true.

The jury then sentenced Appellant to life imprisonment in the Texas Department of Criminal

Justice. The trial court entered judgment in accordance with the jury’s verdict and ordered

Appellant to serve the sentence concurrently with the sentences in the two companion cases.

          On December 8, 2010, Appellant filed the instant appeal. In a single issue, Appellant

argues:

          The trial court erred in overruling Appellant’s objection allowing the State to
          prove the underlying facts of the prior conviction used to enhance Appellant’s
          punishment. Such admission operated to deprive Appellant of Due Process of
          Law under the Fifth and Fourteenth Amendment[s] to the United States
          Constitution and [Article] 1, [Sections] 13 and 19 of the Texas Constitution.

For the reasons that follow, we affirm the trial court’s judgment.

                               THE ENHANCEMENT OFFENSE

          On appeal, Appellant complains of the admission of evidence relating to his prior

conviction for aggravated sexual assault. Essentially, he contends that he was “being retried for

the commission of the juvenile offense for which he had previously been convicted.”

Appellant’s complaints can be divided into four categories. First, Appellant challenges BE’s

testimony: (1) “as to the facts of her being anally raped by the Appellant when she was thirteen

years old”; (2) to the fact that she did not consent to the sexual activity; and (3) that Appellant

“used a pair of scissors at her throat during the commission of the offense.” Second, Appellant

takes issue that BE’s mother’s testimony “allowed the State to, in effect, introduce victim impact



                                               -5-
evidence for a crime for which the Appellant had previously been prosecuted.” Third, Appellant

complains that Detective David Newsom was allowed to identify State’s Exhibits 87, 88, 89, 90,

91, 92, 93, and 94 “as being photographs taken in connection with his investigation of the prior

conviction.” The fourth and final complaint is that the prosecutor “spent the bulk of her final

argument discussing, not the cases for which Appellant was being tried, but rather the case for

which he had previously been convicted, served time in the Texas Youth Commission, and used

as enhancement in the cases at bar.”

       In response, the State initially argues that Appellant waived error by failing to properly

object at trial. In the alternative, the State argues that the trial court did not err in admitting the

evidence because it was admissible under Article 37.07, section 3(a)(1) of the Texas Code of

Criminal Procedure; and admission did not violate the federal or state constitutions. Finally, the

State argues that even if we find that the complaint was preserved for appeal, and even if we find

evidentiary error, it was harmless because it did not affect a substantial right. As a threshold

matter, we first address the State’s contention that Appellant failed to properly preserve his

complaints for our review.

                              Applicable Law - Preservation of Error

       To preserve an issue for appellate review, the trial record must reflect that appellant made

a timely objection stating the specific legal basis and obtained a ruling on that objection.

TEX.R.APP.P. 33.1(a)(1)(A); TEX.R.EVID. 103(a)(1); Layton v. State, 280 S.W.3d 235, 238-39

(Tex.Crim.App. 2009). Subject to two exceptions, a party must continue to object each time

inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003).

The two exceptions require counsel to either (1) obtain a running objection, or (2) request a

hearing outside the presence of the jury. Id.



                                                 -6-
        In addition, a point of error on appeal must present the same legal theory as was

presented to the trial court through a timely, specific objection. See Sterling v. State, 800 S.W.2d

513, 520-21 (Tex.Crim.App. 1990), cert. denied, 501 U.S. 1213, 111 S.Ct. 2816, 115 L.Ed.2d

988 (1991); Coffey v. State, 796 S.W.2d 175, 179-80 (Tex.Crim.App. 1990); Maldonado v. State,

902 S.W.2d 708, 711 (Tex.App.--El Paso 1995, no pet.). “An appellant who fails to preserve this

parity in legal theories presents nothing on which an appellate court may act.” Davila v. State,

930 S.W.2d 641, 650 (Tex.App.--El Paso 1996, pet. ref’d), citing Sterling, 800 S.W.2d at 521.

“This rule logically follows from the general rule that a party must timely present a specific

objection of any error to the trial court.” Id.

                                    Application of Law to Facts

        Appellant does not specifically address preservation of error. However, Appellant’s

“Issue Presented” states that: “The trial court erred in overruling Appellant’s objection allowing

the State to prove the underlying facts of the prior conviction used to enhance Appellant’s

punishment.” [Emphasis added].

        Appellant’s referenced objection was made shortly after Detective Newsom took the

stand. During Detective Newsom’s testimony, the State sought to introduce several photographs

marked as State’s Exhibits 87-94 into evidence. Counsel for Appellant objected as follows:

        Q. [BY THE STATE:] Let me show you what’s been previously marked as
        State’s Exhibit 87, State’s Exhibit 88, State’s Exhibit 89, State’s 90, 91, 92, 93,
        and 94. Do State’s Exhibits 87 through 94 fairly and accurately depict the scene
        and the items found at the scene with regard to the case involving Joseph Suiters
        for which you were assigned in October of 2003?

        A. Yes, they are.

        [THE STATE]: Judge, at this time, we offer State’s 87 through 94 and tender to
        Defense counsel for inspection.

        [DEFENSE COUNSEL]: We would like to go to the bench, if we could, about
        that.

                                                  -7-
       THE COURT: Yes.

       (At the bench, on the record.)

       [DEFENSE COUNSEL]: Judge, I’d like to object to the exhibits and also the
       testimony as it’s going behind the facts of the case that is being used as the
       enhancement paragraph on all of these cases.

       THE COURT: Okay. That objection is overruled.

       [DEFENSE COUNSEL]: Thank you.

       (End of bench conference.)

       THE COURT: State’s Exhibits 87 through 94 are admitted.

Appellant did not renew his objection at any time during Detective Newsom’s testimony, nor did

Appellant make a new objection, or seek to renew the objection, during the testimony of BE,

ME, or the State’s closing argument. Appellant cites no legal authority supporting such a broad

application of a single objection, nor have we found any. Accordingly we review the record to

see whether Appellant made a sufficient objection elsewhere.

       Appellant’s exact argument regarding BE’s testimony is unclear, but it appears he is

arguing that her testimony constituted impermissible victim impact evidence. At trial, Appellant

objected only to hearsay. Since no request, objection, or motion was made before the trial court

which relates to Appellant’s complaints on appeal, there is nothing preserved for our review with

respect to these complaints. See Lucio v. State, 351 S.W.3d 878, 906-07 (Tex.Crim.App. 2011).

       Similarly, with respect to ME’s testimony, Appellant contends that her testimony

constituted impermissible victim impact testimony.      Defense counsel lodged only a single

hearsay objection during ME’s testimony which he immediately withdrew. He also referenced

ME’s testimony about the photographs of BE’s injuries. Here is the colloquy:

       Q. [BY THE STATE]: [ME], I’m showing you what’s been marked as State’s
       Exhibit 95, State’s Exhibit No. 96, State’s Exhibit No. 97, State’s Exhibit No. 98,
       State’s Exhibit No. 99, State’s Exhibit 100, and State’s Exhibit 101, okay? . . .

                                              -8-
        Do each of these pictures fairly and accurately depict your daughter and the
        injuries that were sustained at the hands of Mr. Suiters?

        A. [BY ME]: Yes.

        [THE STATE]: Your honor, at this time, the State will offer State’s Exhibits No.
        95 through 101.

        [DEFENSE COUNSEL]: They’ve been previously examined. No objection.

        THE COURT: State’s Exhibits 95 through 101 are admitted.

Not only did Appellant fail to make a specific, timely request or objection during ME’s

testimony, counsel affirmatively stated that he had no objection.              Accordingly, Appellant

presents nothing for review with respect to ME’s testimony or State’s Exhibits 95-101.

        Next we address Appellant’s complaints with respect to the State’s closing argument.

These complaints are equally unpreserved because Appellant did not object. While his counsel

objected three times during closing argument, none related to deprivation of due process, the

amount of time spent or focused on the enhancement offense, or any other conceivably related

topic. Because the trial objections do not comport with the complaints on appeal, error has been

waived.

        The final question remaining before us is whether Appellant sufficiently preserved error

with respect to his complaints regarding State’s exhibits 87-94 and Detective Newsom’s

testimony. His brief does not contain a single statement comporting with his trial objection.

Instead, the only assertions on appeal are (1) certain evidence was inadmissible as victim impact

statements; (2) this evidence served to retry Appellant for an offense he had previously been

convicted of; and (3) the introduction of this evidence sought to deprive Appellant of his right to

a fair trial by an impartial jury in violation of his constitutional rights.




                                                  -9-
           With exceptions that do not apply here, to preserve error, a party must continue to object

each time the objectionable evidence is offered.                   Martinez v. State, 98 S.W.3d 189, 193

(Tex.Crim.App. 2003), citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). A

trial court’s erroneous admission of evidence will not require reversal when other such evidence

was received without objection, either before or after the complained-of ruling. Leday v. State,

983 S.W.2d 713, 718 (Tex.Crim.App. 1998).

           State’s Exhibits 87-94 were identified by Detective Newsom at trial. State’s Exhibits 87

and 88 were identified the photographs as a picture of the street sign on the corner next to the

abandoned house where the incident took place and a picture of the outside of the abandoned

home, respectively. Detective Newsom testified that State’s Exhibit 89 was a photograph of

“some of the junk that was in the room where the incident occurred,” and State’s Exhibit 90 was

a photograph of what appeared to be a baby crib mattress on the floor of the same room. State’s

Exhibits 91 and 92 showed “the wet spot . . . and the lollipop and part of the mattress.”5

According to Detective Newsom, BE dropped the lollipop during the incident and urinated on

the floor. Finally, State’s Exhibits 93 and 94 were photographs of the scissors used in the

assault.

           At trial BE testified, without objection that: (1) she lived on Luna Street in San Angelo,

Texas; (2) there was an abandoned house down the street; (3) on October 8, 2003, she went with

Appellant to the abandoned house; (4) once inside the house they went into a room with a small

mattress; (5) while in that room Appellant shoved her onto the mattress and anally raped her; (6)

when Appellant shoved her, she dropped a lollipop she was previously holding; (7) during or

after the offense, she urinated on the floor of that room; (8) Appellant held a pair of scissors to


5
    Detective Newsom identified State’s Exhibit 92 as a close up of State’s Exhibit 91.


                                                         - 10 -
her throat while he raped her; and (9) after the rape, Appellant used the scissors to try and stab

BE in the throat and eventually discarded the scissors in the abandoned home.

       A party desiring to complain about particular evidence must object each time that

evidence is offered, or the objection is waived. See Perry v. State, 957 S.W.2d 894 (Tex.App.--

Texarkana 1997, pet. ref’d). Although Appellant objected to the introduction of State’s exhibits

87-94 and Detective Newsom’s testimony regarding those exhibits as going behind the facts of

the enhancement offense, he did not object when BE testified to essentially the same facts. See

id. (“Although Perry objected to the admission of the calculation summary report when it was

offered by the State, he did not object when the witness testified about the contents of the report.

Thus, he did not preserve error.”).

       We overrule Appellant’s issue for review and affirm the trial court’s judgment.



September 26, 2012                    _______________________________________________
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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