Daniel Berkley v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-127-CR
DANIEL BERKLEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Daniel Berkley of aggravated robbery and
assessed his punishment at forty-five years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice. The trial court sentenced
him accordingly. In his sole point, Appellant challenges the trial court’s
1
… See Tex. R. App. P. 47.4.
admission of evidence of an extraneous offense. Because we hold that
Appellant did not preserve his challenge, we affirm the trial court’s judgment.
Monica DeLeon arrived at an orthodontist’s office with her two sons
when Appellant approached her, took her car keys, and drove off in her
Suburban. DeLeon and the children were able to get out of the vehicle before
Appellant drove off. One of DeLeon’s sons identified Appellant in a photo
spread as the person who stole the Suburban.
Five days later, Arther Curry was at a Family Dollar store on Miller Street.
She left the store, put her shopping bags in the back seat of her car, and
started to get into the car. At that point, Appellant, who was in a Suburban,
got out of the Suburban, walked behind Curry, pulled out a gun, and ordered
her to give him her purse.
After Curry gave Appellant her purse, he went back to the Suburban,
climbed into the passenger’s side, and started going through the purse. Curry
walked up to the Suburban and asked Appellant to return her driver’s license.
Appellant returned Curry’s driver’s license and then instructed her to leave
before he shot her. Curry identified Appellant from a photo spread as the
person who had robbed her.
Less than two and a half hours later, Jerod Wilkerson was at The Home
Depot parking lot when his attention was drawn to Appellant. When Appellant
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left the parking lot in the Suburban, Wilkerson followed him. Wilkerson
followed Appellant north on I-35 and called 911. Wilkerson lost sight of
Appellant, but he gave a description of both Appellant and the Suburban.
Wilkerson identified Appellant out of a six-man lineup as the person who was
at The Home Depot.
Pete Torres was also at The Home Depot and also followed Appellant in
his car. Torres provided the Suburban’s license plate number to the police.
That evening, the Suburban was found in the driveway of an abandoned house.
Approximately a week later, Fort Worth Police Detective Jim Varnon lifted
fingerprints from the Suburban and compared them to Appellant’s fingerprints
on a fingerprint card that Varnon had acquired earlier. The prints on the
Suburban matched Appellant’s fingerprints on the fingerprint card. Varnon also
collected cigarette butts from the Suburban. The DNA on the cigarette butts
positively matched Appellant’s blood sample.
The jury convicted Appellant of the aggravated robbery of Arther Curry.
Appellant complains that the trial court abused its discretion by admitting
evidence that six days before he robbed Curry, Appellant had come upon Tyler
Green, who was with her five-year-old son, Nico, at T-Mart, and had grabbed
her around the waist as she was placing Nico in the car. Appellant ordered
Green to give him her keys, and when she refused, he began pulling on her
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purse. Green yelled that Appellant was not going to get her keys, and
Appellant showed her that he had a gun, telling her that if she did not give him
the keys and her purse, he was going to kill her and her son. Appellant pointed
the gun at Green’s chest, and the fight moved to a “hot wings” restaurant
where Green tried to get an employee’s attention. Appellant shoved Green into
the door of the restaurant and then ran away.
On appeal, Appellant argues that the extraneous offense evidence was
inadmissible under rule 403 because its probative value was substantially
outweighed by the danger of unfair prejudice. The State argues that Appellant
did not preserve that complaint for appeal because his objection was primarily
a rule 404(b) objection. In the trial court, Appellant argued that the evidence
was inadmissible generally because the defense had not challenged the deadly
weapon issue. Appellant also objected to the evidence as lacking in probative
value and inflammatory. The trial court stated that "issues . . . have been
raised" and admitted the evidence, but for a limited purpose, to which Appellant
did not object. No magic words are required for an objection, nor is a
defendant required to state the rule of evidence in his objection.2 To that
extent, Appellant sufficiently preserved his complaint for appeal.
2
… Rivas v. State, 275 S.W.3d 880, 882 (Tex. Crim. App. 2009)
(“[T]here are no technical considerations or form of words to be used.
Straightforward communication in plain English will always suffice.”).
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But Appellant’s objection to the offer of extraneous offense evidence for
all purposes was sustained. Appellant did not object further and did not ask for
a continuing objection. He did not object to the admission of the evidence for
the limited purpose stated by the court. Rather, he acquiesced in the trial
court’s action of admitting the evidence for the limited purpose. Consequently,
he has not preserved a challenge to the admission of the extraneous offense
evidence for a limited purpose. 3
We therefore overrule Appellant’s sole point and affirm the trial court’s
judgment.
PER CURIAM
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 2, 2009
3
… See Tex. R. App. P. 33.1(a)(1); Fuentes v. State, 991 S.W.2d 267,
273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); Mosley v. State,
983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526
U.S. 1070 (1999); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim.
App. 1991).
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