Alfonso Aragon, Jr. v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00325-CR
ALFONSO ARAGON, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD JUDICIAL DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In a single point, Alfonso Aragon, Jr., appeals his conviction for possession
of between four and two hundred grams of methamphetamine with the intent to
deliver, asserting that the trial court abused its discretion by overruling in part his
objection to the State’s questioning of a police officer regarding the amount of
methamphetamine that a user typically uses to get “high.” We will affirm.
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See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
Texas Department of Public Safety Trooper Burt Blue was dispatched to
conduct a welfare check on a stranded motorist and found a vehicle on the side
of the road. Trooper Blue approached the vehicle and made contact with Aragon
and the female driver. Aragon and the driver acted nervously and would not look
at Trooper Blue when they spoke to him. The driver of the vehicle gave Trooper
Blue consent to search the vehicle. Trooper Blue asked if there was anything
illegal in the vehicle, and Aragon admitted that he had “a couple ounces of ice”
with him under the passenger seat. Trooper Blue found what was later
determined to be 165.73 grams of methamphetamine under the passenger seat.
Aragon told Trooper Blue that the methamphetamine had been loaned to him
and that he planned to sell the drugs to get money for his children.
Aragon entered an open plea of guilty and elected to have the trial court
assess punishment. At the punishment trial, the State called Sergeant James
Peel of the Weatherford Police Department, Narcotics Division Special Crimes
Unit to testify. He discussed his extensive background, experience, and training
in the narcotics field. The following exchange then occurred:
[STATE]: Okay. Given your experience around this—this
point in time—well, let me preface that. When a meth user is going
to get high, how much meth does a typical meth user use to get
high?
[DEFENSE COUNSEL]: Excuse me, Judge. I believe this is
outside the range of his skills or—and he certainly hasn’t been
qualified as an expert. And everything he says is going to be based
on hearsay. So we’re objecting to the fact that his testimony is
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relying upon not only hearsay, but hearsay upon hearsay that is not
qualified as an expert. And on those bases, along with allowing him
to testify as to hearsay on hearsay, would violate the right of
confrontation and cross-examination since there’s no way we could
cross-examine—
THE COURT: [Defense counsel], your objection is sustained
in part, with this limiting instruction: I will permit the officer to testify
to what is in his knowledge, based on his experience, and some—
should he testify what is a common aggregate amount to be sold or
traded to be used as a usable quantity. But how little amount he can
use seems to be beyond his exact expertise. But for the trade of
methamphetamine and drugs, then please, with that limiting
instruction, please rephrase your question.
...
[STATE]: Now, in regard to what a typical amount is for a
drug—a methamphetamine user to use to get high, does that—is
there a range?
[DEFENSE COUNSEL]: Judge, we’re going to have the same
objections that we’ve had before. Nothing’s changed. They’ve
just—
THE COURT: Your objection is sustained. That’s a proper
question for a doctor, not for a police officer. He can testify what is
the traded amount, what is an arrestable amount, what’s the
purported amount people use, but not as to the medical effect by a
little amount for different bodies. That’s a different—
[STATE]: Judge, I’m not asking that. I asked how much they
typically use to get high.
THE COURT: Well, I think there’s a different way to ask that
same question, which the courts have given you discretion to ask.
Go ahead.
[STATE]: Okay. I’ll rephrase it, Judge.
[STATE]: Let me ask it this way: Have you had a chance to
gather the information with regard to how much a narcotics
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offender—a methamphetamine offender will typically use in a single-
use amount?
[SERGEANT PEEL]: Yes.
[STATE]: And how much is that?
[SERGEANT PEEL]: Quarter of a gram to half a gram.
[STATE]: Okay. And does that depend upon how often
they’re using?
[SERGEANT PEEL]: Yes.
Sergeant Peel then testified about the different quantities of methamphetamine
and the typical price of those varying quantities.
III. NO PRESERVATION OF ERROR
In his sole point, Aragon asserts that the trial court abused its discretion by
overruling in part his objection to Sergeant Peel’s non-expert opinion testimony
as set out above. The State asserts that Aragon failed to preserve error because
the trial court sustained his objections, he did not pursue an adverse ruling, and
he did not object each time similar questions and testimony were presented.
To preserve a complaint for our review, a party 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); Lovill v. State, 319 S.W.3d 687,
691–92 (Tex. Crim. App. 2009). 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.
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33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A
party must continue to object each time the objectionable evidence is offered.
Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); 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)); Fuentes v. State, 991 S.W.2d 267, 273 (Tex.
Crim. App.), cert. denied, 528 U.S. 1026 (1999). 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. Lane v
State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998). A reviewing court should not address the
merits of an issue that has not been preserved for appeal. Wilson v. State, 311
S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g).
In this case, the trial court sustained both of Aragon’s objections to the
State’s questioning Sergeant Peel about “how much meth does a typical meth
user use to get high” and about “the range” of methamphetamine that a
methamphetamine user uses “to get high.” Aragon received the relief he
requested and did not make any other requests to the court or obtain an adverse
ruling.2 See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (“It is
2
Although the trial court stated that it was sustaining Aragon’s objection
only “in part,” the trial court’s ruling—prohibiting the State from asking what
amount of methamphetamine a user typically uses to get high—and its “limiting
instruction” show that the trial court gave Aragon all of the relief he was
requesting—that the State not elicit testimony from Sergeant Peel about the
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well settled that when [a defendant] has been given all the relief he requested at
trial, there is nothing to complain of on appeal.”); Ashire v. State, 296 S.W.3d
331, 343 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); White v. State, 934
S.W.2d 891, 895 (Tex. App.—Fort Worth 1996, no pet.); see also Davis v. State,
894 S.W.2d 471, 474 (Tex. App.—Fort Worth 1995, no pet.) (holding complaint
not preserved when trial court sustained objection and gave an instruction to
disregard and when no other relief was requested). When the State rephrased
its question the third time, asking Sergeant Peel how much methamphetamine “a
methamphetamine offender will typically use in a single-use amount,” Aragon did
not object any error is not preserved for our review. See Tex. R. App. P.
33.1(a)(1); Geuder, 115 S.W.3d at 13. Consequently, because Aragon’s
complaint has not been preserved for our review, we cannot address it and we
overrule his sole point.
IV. CONCLUSION
Having overruled Aragon’s sole point, we affirm the trial court’s judgment.
PER CURIAM
PANEL: WALKER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 16, 2012
quantity of methamphetamine a user typically uses to get high. See Davis v.
State, 955 S.W.2d 340, 353 n.3 (Tex. App.—Fort Worth 1997, pet. ref’d).
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