Javarous Tyson v. State ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-11-00262-CR
______________________________
JAVAROUS TYSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd Judicial District Court
Bowie County, Texas
Trial Court No. 11F0262-102
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
At the jury trial on charges that Javarous Tyson, a felon, unlawfully possessed a firearm,
the State was allowed, over Tyson’s objection, to introduce evidence that, at the time of Tyson’s
arrest on this charge, he had on his person the sum of $2,500.00 in cash. From his conviction
and sentence of ten years’ imprisonment, Tyson appeals, asserting error in the admission of that
evidence. Tyson complains that this evidence “only served to provide a prejudicial conformity
inference.” We affirm the trial court’s judgment because Tyson failed to preserve his appellate
point with the trial court below.
Officer Jeremy Courtney was on his way to question Tyson, in the process of searching
for a fugitive who was reportedly in Tyson’s company. While en route to find Tyson, Courtney
noticed Tyson driving a vehicle. Courtney followed Tyson to an apartment complex and stopped
him as he stepped out of the vehicle. A weapon was found on the console of the vehicle, and
Tyson, the sole occupant of the vehicle, was arrested. Tyson testified that the vehicle belonged
to his girlfriend, that his girlfriend was driving the vehicle that day, that he was “on the porch”
when Courtney “pulled up in the white crown vic,” and that the gun was not his.
On direct examination, Tyson had admitted that he had been previously found in
possession of cocaine. Then, during cross-examination, the following transpired:
Q. Do you recall the police officers releasing your personal items?
A. Yes.
Q. Would you tell the ladies and gentlemen of the jury what your
personal items were?
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[Defense Attorney]: Objection, Your Honor, relevance.
THE COURT: Overruled.
A. I think it was my necklace, my money and the keys that was in my
pocket.
Q. How much money?
A. I really don’t know.
Q. Would it be -- now, the police officers are still here.
A. Yes.
Q. Let me help you. Would it be in the neighborhood of $2,500?
A. Probably so.
Q. Okay.
Focusing on this portion of the transcript, Tyson’s appellate brief argues:
The sole issue for the jury to determine was whether Appellant possessed a
firearm on the night in question. The State offered testimony through two police
officers, while Appellant and his girlfriend testified in a consistent manner
contrary to the officers. The playing field was unleveled when the trial court
permitted the State to elicit how much cash Appellant had on him when he was
arrested. Not only was the amount of cash irrelevant, but the State was able to
couple the amount of cash with the specifics of Appellant’s prior, admitted felony
conviction to create the prejudicial inference that Appellant must have possessed
a weapon on the night in question. The introduction of the amount of cash was an
abuse of discretion, and, based on the jury’s behavior during deliberations, the
error was harmful.
Thus, Tyson’s appellate argument is more than the simple relevance issue raised at trial; it adds
that the evidence had an improper prejudicial effect. See TEX. R. EVID. 403.
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The State argues simple relevance: that Tyson’s “prior conviction for cocaine
possession, in addition to the amount of cash, are both relevant pieces of evidence to establish
the motive that he would be in possession of a firearm in order to protect his money, any drugs
he was in possession of, and himself.” As to the simple relevancy issue raised at trial and here,
we overrule the point of error.
Reasonable men may disagree whether in common experience a particular
inference is available. Where there is room for such disagreement, an appellate
court that reverses a trial court’s ruling on relevancy accomplishes nothing more
than to substitute its own reasonable perception of common experience for that of
the trial court. The appellate court effectively displaces the trial court,
commandeering a function institutionally assigned elsewhere.
To avoid this anomaly, appellate courts uphold the trial court’s ruling on appeal
absent an “abuse of discretion.” That is to say, as long as the trial court’s ruling
was at least within the zone of reasonable disagreement, the appellate court will
not intercede.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). It is at least
reasonably arguable that possession of that amount of cash is relevant to the issue of possession
of the firearm.
As to extending the issue into the asserted unfair prejudicial effect of the evidence, the
issue was not preserved. In order to preserve a complaint for appellate review, a defendant must
present 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); Morales v. State, 951 S.W.2d 59, 62 (Tex. App.—Corpus Christi
1997, no pet.). “[A] party’s objection must inform the trial court why or on what basis the
otherwise admissible evidence should be excluded.” Ford v. State, 305 S.W.3d 530, 533 (Tex.
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Crim. App. 2009). For this reason, points of error on appeal must correspond or comport with
objections and arguments made at trial. Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—
Texarkana 2005, pet. ref’d) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)).
“Where a trial objection does not comport with the issue raised on appeal, the appellant has
preserved nothing for review.” Id.; see TEX. R. APP. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197
(Tex. Crim. App. 1999).
A defendant is required to object each time allegedly inadmissible evidence is offered.
Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.) (citing Ethington v.
State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Long v. State, 10 S.W.3d 389, 399 (Tex.
App.—Texarkana 2000, pet. ref’d). Even if a trial court’s admission of evidence is erroneous, it
“will not require reversal when other such evidence was received without objection, either before
or after the complained-of ruling.” Clay, 361 S.W.3d at 766 (citing Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998) (Texas applies “futility rule,” meaning that despite trial court’s
ruling that evidence is admissible, party must keep making “futile” objections on pain of
waiver)). Here, trial counsel’s relevance objection with respect to Tyson’s personal items failed
to preserve error as to the prejudicial effect of Tyson’s testimony of the amount of cash in his
possession at the time of arrest.
As to any issues not related to Tyson’s plain relevance objection, the objection failed to
preserve any error, such as an issue concerning “prejudicial inference” or “general character
conformity,” which could be created by the introduction of the amount of cash. Motions for
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new trial filed in this case also failed to raise these issues. Thus, these complaints were not
preserved.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 12, 2012
Date Decided: June 26, 2012
Do Not Publish
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