Albert Salazar, Jr v. State ( 1997 )

Salazar, Jr.-A v. State

IN THE

TENTH COURT OF APPEALS

No. 10-96-115-CR

        ALBERT SALAZAR, JR.,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 9443

O P I N I O N

          A jury convicted Albert Salazar, Jr. of possessing a deadly weapon in a penal institution and sentenced him to ten years in prison. Tex. Penal Code Ann. § 46.10 (Vernon 1994). Salazar's sole point of error asserts that the trial court erred in failing to instruct the jury to disregard. We will affirm.

          In his sole point, Salazar complains that the court erred in failing to give an instruction to disregard the State's witness' reference to "gang material," arguing that such a reference was an extraneous offense and highly prejudicial. Although Salazar's point combines multiple legal theories in one ground of error, which is normally considered multifarious and not presenting anything for review, we are able to identify Salazar's arguments; thus, we will consider his arguments on the merits. See Morin v. State, 682 S.W.2d 265, 267 (Tex. Crim. App. 1983); Auston v. State, 892 S.W.2d 141, 144 (Tex. App.—Houston [14th Dist.] 1994, no pet.).

          We will, first, address Salazar's extraneous offense argument. When determining whether evidence is an extraneous offense, the evidence must demonstrate that a crime or bad act was committed and that the defendant was connected to that offense or bad act. Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992); Martin v. State, 823 S.W.2d 726, 729 (Tex. App.—Waco 1992, pet. ref'd); Laca v. State, 893 S.W.2d 171, 186 (Tex. App.—El Paso 1995, pet. ref'd). The record, here, shows that while conducting a search of Salazar's cell, Ernest Dobbs, an officer at the Texas Department of Corrections, discovered a metal shank. He testified:

Well, the thing that I picked up the first time, it was a piece of cardboard it had markings on it like symbols and stuff that really couldn't read; but you could tell its -- I mean, like you see in gang material. I was throwing it out of his house and when I did, I noticed it was way too heavy for a piece of cardboard, I knew substantially too heavy for a piece of cardboard, so, I got out of the house and picked it back up off the floor where I threw it.

(Emphasis added). The reference to "gang material" does not constitute an extraneous offense. The evidence does not prove that the defendant committed or was connected to an offense or a bad act. Because this reference is not extraneous offense evidence, the court properly refused Salazar's request to give an instruction to disregard the statement.

          Salazar's second argument contends that the reference to "gang material" is highly prejudicial. Rule 403 allows the trial court to exclude evidence which is more prejudicial than probative. Tex. R. Crim. Evid. 403. However, before an accused can complain that the court failed to exclude highly prejudicial evidence, the accused must specifically object on 403 grounds. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (on rehearing). Here, Salazar did not assert a 403 objection when the witness referred to "gang material." Without a proper objection, he did not preserve the complaint for our review.

          Having determined that the reference to "gang material" was not an extraneous offense and that Salazar waived his complaint about the evidence being prejudicial, we overrule his point and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 19, 1997

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