












 
 
 
 
 
 
                                                COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                        NO.
2-08-331-CR
 
MICHAEL MCCABE                                                              APPELLANT
 
                                                   V.
 
THE STATE OF TEXAS                                                                STATE
 
                                              ------------
 
            FROM
THE 367TH DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
                                MEMORANDUM OPINION[1]
 
                                              ------------
I. 
Introduction




Appellant
Michael McCabe appeals his conviction for evading arrest.  In three points, McCabe argues that the trial
court erred by (1) upholding the jury conviction without requiring the State to
prove all elements of the offense, (2) overruling his objection to the
introduction of unadjudicated extraneous offenses, and (3) overruling his
objection to the State testifying outside of the record.  We affirm.
II. 
Factual and Procedural Background
Around
2:30 a.m. on May 12, 2007, McCabe drove his four-wheeler on a public street in
The Colony past Police Officer Kyle Koiner. 
Officer Koiner immediately turned on his lights, activated his siren,
and pulled in behind McCabe to stop him for illegally driving a four-wheeler on
the street.  McCabe did not stop but
continued to drive.  Officer Koiner
followed McCabe and at one point his patrol unit was going around seventy-five
miles per hour.  During Officer Koiner=s
pursuit, McCabe ran three stop signs, made several u-turns, drove the wrong way
down a one-way street, and eventually hit a curb, rolling his four-wheeler and
ejecting him from the vehicle.




When
Officer Koiner approached McCabe and told him to get on the ground on his
stomach, to put his arms out, and to put his face on the ground, McCabe did not
listen.  Only after Officer Koiner had
repeatedly yelled the commands, did McCabe comply.  When Officer Koiner came into contact with
McCabe he noticed a strong odor of alcohol on McCabe=s breath
and helmet and observed that McCabe=s eyes
were red.  After backup arrived, McCabe
was handcuffed, placed into Officer Koiner=s patrol
unit, and transported to jail.  While in
Officer Koiner=s patrol unit, McCabe admitted
that he had evaded Officer Koiner, stated that he couldn=t
believe he was being arrested for riding his four-wheeler drunk on the street,
and asked if he could be charged with misdemeanor evading as opposed to felony
evading.
The
State charged McCabe with the state jail felony offense of evading arrest.  The indictment included two enhancement
paragraphs:  one for an October 22, 2003
conviction, for possession of a controlled substance, and the other for a
January 21, 2005 conviction, for possession of a controlled substance.  McCabe pleaded not guilty to the offense of
evading arrest but pleaded true to both enhancement paragraphs.  After a trial on the merits, a jury found
McCabe guilty of evading arrest.
During
the punishment phase of trial, the State questioned McCabe=s
probation officer regarding outstanding charges against McCabe in Florida.  McCabe timely objected on relevance grounds,
and the trial court overruled the objection. 
During the State=s closing arguments, the State
said, A[B]ut
for the Grace of God, we don=t have a
pedestrian or a car accident as a result of this evading.@  McCabe objected to the State=s
argument on relevance grounds, stating that any relevance would be
substantially outweighed by the danger of prejudice.  The trial court overruled McCabe=s
objection.  The jury assessed punishment
at five years= confinement and a fine of
$5,000; the trial court sentenced McCabe accordingly.  This appeal followed.




III. 
Felony Offense of Evading Arrest
In his
first point, McCabe asserts that the trial court erred by upholding the jury
conviction for third-degree felony evading arrest as alleged in the indictment
because the State failed to prove all the elements of the offense.  Specifically, McCabe argues that the evidence
is legally insufficient to support his conviction because the State failed to
prove that he had a prior conviction for evading arrest.
The crux
of McCabe=s argument rests on his
assertion that the trial court charged him with a third-degree felony under
section 38.04(b)(2)(A) of the penal code, which requires proof that a vehicle
was used while fleeing a peace officer and proof of a prior conviction
for evading arrest.  See Tex.
Penal Code Ann. ' 38.04(b)(2)(A) (Vernon Supp.
2009).  However, the indictment charged
McCabe as follows:
MICHAEL MCCABE . . . did then and there, while using a vehicle,
intentionally flee from Kyle Koiner, a person the defendant knew was a peace
officer who was attempting lawfully to arrest or detain the defendant;
 
ENHANCEMENT PARAGRAPHS
 
And it is further presented in and to said Court that before the
commission of the offense alleged above, on the 22nd day of October, 2003, in
cause number 0860267D, in Tarrant County, Texas, the defendant was convicted of
the felony offense of Possession of a Controlled Substance in Criminal District
Court No. 4;




And it is further presented in and to said Court that before the
commission of the offense alleged in the first paragraph above the defendant
was convicted of the offense of Possession of a Controlled Substance on the
21st day of January, 2005 in Tarrant Country, Texas, in cause number 0947576D,
in the Criminal District Court No. 1.
 
And, the trial court gave the following charge to the jury:  
 
The defendant, MICHAEL MCCABE, stands charged by indictment with the
offense of Evading Arrest, alleged to have been committed in Denton County,
Texas, on or about the 12th day of May 2007. 
To this charge the defendant has pleaded not guilty.
 
Our law provides that a person commits the offense of Evading Arrest,
if the person while using a vehicle intentionally flees from a person he knows
is a peace officer attempting lawfully to arrest or detain him.
 




Neither
the indictment nor the charge include a sentence requiring proof of a prior
conviction for evading arrest.  Thus, it
is clear from the language in the indictment and the jury charge that McCabe
was not charged with a third‑degree felony under section 38.04(b)(2)(A)
of the penal code.  Instead, McCabe was
charged with a state jail felony under section 38.04(b)(1) of the penal
code.  See id. '
38.04(b)(1)(B) (requiring only proof that a vehicle was used in the flight from
a peace officer).  And his punishment was
subsequently enhanced by the two prior state jail felonies to which he had
pleaded true.  See id. '
12.42(a)(1) (Vernon Supp. 2009) (declaring that a state jail felony is enhanced
to a third‑degree felony A[i]f it
is shown on the trial of a state jail felony punishable under Section 12.35(a)
that the defendant has previously been finally convicted of two state jail
felonies@).
Therefore,
because McCabe=s sufficiency challenge rests
solely on the ground that the State failed to prove that he had a prior
conviction for evading arrest, and because we conclude McCabe was charged under
section 38.04(b)(1), which does not require proof of a prior conviction for
evading arrest, we overrule McCabe=s first
point.
IV. 
Unadjudicated Offenses
McCabe
argues in his second point that the trial court erred when it overruled his
objection to testimony regarding unadjudicated offenses during the punishment
phase of trial.  Specifically, McCabe
complains that the trial court erred by allowing the State to elicit testimony
from two character witnesses regarding McCabe=s
unadjudicated offenses in Florida.




However,
a complaining party must first preserve his complaint for our review; that is,
he must have presented to the trial court a timely request, objection, or
motion that states the specific grounds for the desired ruling if they are not
apparent from the context of the request, objection, or motion.  Tex. R. App. P. 33.1(a)(1); Mosley v.
State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh=g), cert.
denied, 526 U.S. 1070 (1999). 
Further, the trial court must have ruled on the request, objection, or
motion, either expressly or implicitly, or the complaining party must have
objected to the trial court=s
refusal to rule.  Tex. R. App. P.
33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
Additionally,
an objection must be made as soon as the basis for the objection becomes
apparent.  Tex. R. Evid. 103(a)(1);
Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App.), cert. denied,
522 U.S. 917 (1997); Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App.
1987).  And to preserve error, a party
must continue to object each time the objectionable evidence is offered.  Fuentes v. State, 991 S.W.2d 267, 273
(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); Ethington v.
State, 819 S.W.2d 854, 858B59 (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); Johnson v. State, 803
S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259
(1991), overruled on other grounds by Heitman v. State, 815 S.W.2d 681
(Tex. Crim. App. 1991).  This rule
applies whether the other evidence was introduced by the defendant or the
State.  Leday, 983 S.W.2d at 718.
The
following evidence was admitted with objection during the punishment
phase of trial.




Cross Examination (McCabe=s
Probation Officer)
Q.  Now, Ms. Bennett, when you
supervise [your parolees], do you talk with them?
 
A.  Yes, ma=am.
 
Q.  And is one of the things
that you go over, especially when they=re first on your case load, their criminal
history?
 
A.  Yes, ma=am.
 
Q.  And the defendant has a very
extensive criminal history.  Is that
correct?
 
A.  Yes, ma=am.
 
Q.  All right.  And as a matter of fact, he also has some
outstanding charges in Florida that he told you about.  Isn=t that correct?
 
A.  Yes, ma=am.
 
[Defendant]:  Objection.  Relevance, Judge.
 
[The Court]: Overruled.
 
Q.  And is that for a felony
possession of heroin and a misdemeanor possession of drug paraphernalia?
 
A.  Yes, ma=am.
 
Q.  Okay.  And as far as you know, to this day does he
still have an outstanding warrant for those?
 
A.  Yes, he does.
 




The
following evidence was admitted without objection during the punishment
phase of trial. 
Cross Examination (McCabe=s
Mother)
Q.  Are you aware of his current
outstanding warrant out of Florida for felony charges and misdemeanor charges?
 
A.  I don=t know what type of
charges, misdemeanor or felony.  I=m aware of the charges
out of Florida, yes.  They happened a
long time ago.
 
Q.  But he still hasn=t taken care of
them.  Isn=t that correct?
 
A.  Not yet.
 
Although
McCabe timely objected to the State=s first
line of questions pertaining to his unadjudicated offenses in Florida, McCabe
did not continue to object to the State=s
subsequent questions regarding the same unadjudicated offenses.  Consequently, McCabe failed to preserve this
issue for review.  See Fuentes,
991 S.W.2d at 273.  Accordingly, we
overrule his second point.
V.  Closing
Argument
In his
third and final point, McCabe contends that the trial court erred by overruling
his objection to the State=s
closing argument during the punishment phase of trial.  In particular, McCabe complains of the
following statement by the State:  ABut for
the Grace of God, we don=t have a pedestrian or a car
accident as a result of this evading.@




The law
provides for and presumes a fair trial free from improper argument by the
State.  Long v. State, 823 S.W.2d
259, 267 (Tex. Crim. App. 1991).  Proper
jury argument encompasses one of the following: 
(1) an answer to the opposing counsel=s
argument; (2) a summation of the evidence presented at trial; (3) a reasonable
deduction drawn from that evidence; or (4) a plea for law enforcement.  Wesbrook v. State, 29 S.W.3d 103, 115
(Tex. Crim. App. 2000).  To determine
whether a party=s argument falls within one of
these categories, we must consider the argument in light of the entire record
and consider the remarks within the context in which they appear.  Gaddis v. State, 753 S.W.2d 396, 398
(Tex. Crim. App. 1988); Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.CHouston
[1st Dist.] 2001, pet. ref=d).
Here,
the record shows that McCabe, while evading Officer Koiner, ran three stop
signs, made several u-turns, drove the wrong way down a one-way street, hit a
curb, and rolled his four-wheeler. 
During closing argument, defense counsel argued, 
. . . I want you all to please remember the big picture, that we=re not here on a murder
case, like the State would have you believe. 
We=re here on an evading on
a four-wheeler case.  This is not the
crime of the century.  This is somebody
who was intoxicated and did something stupid that happened to be a felony. 
 




On
appeal, the State contends the complained‑of comment was proper because
it was a reasonable deduction from the evidence and aimed at answering defense
counsel=s
argument, namely correcting defense counsel=s
statement=s as to the gravity of the
offense.  We agree.
It is
well‑settled that a prosecutor may answer the jury argument of opposing
counsel provided that the response does not exceed the scope of the invitation.
 See Andujo v. State, 755 S.W.2d
138, 144 (Tex. Crim. App. 1988).  And,
based on the evidence, it was a reasonable deduction that McCabe=s
actions could lead to someone being hurt. 
See Felder v. State, 848 S.W.2d 85, 95 (Tex. Crim. App.
1992).  Thus, the prosecutor=s
statement did not inject any new or harmful facts and was proper jury
argument.  See Howard v. State,
153 S.W.3d 382, 385 (Tex. Crim. App. 2004). 
Accordingly, we overrule McCabe=s third
point.
VI. Conclusion
Having overruled all three of McCabe=s
points, we affirm the trial court=s
judgment.
 
BOB MCCOY
JUSTICE
PANEL:  LIVINGSTON, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R.
App. P. 47.2(b)
DELIVERED:  November 12, 2009




[1]See Tex. R. App. P. 47.4.


