Michael Martinez v. State ( 2012 )

MEMORANDUM OPINION
No. 04-11-00423-CR
Michael MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR2807
Honorable George H. Godwin, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: June 6, 2012
AFFIRMED
The sole point of error raised in this appeal is whether the trial court abused its discretion
by admitting into evidence testimony regarding Michael Martinez’s prior assault convictions.
We agree with the State that Martinez failed to preserve this complaint for appellate review.
Accordingly, we affirm the trial court’s judgment.
Martinez was charged with aggravated assault of his mother’s live-in boyfriend, Roger.
During cross-examination of Martinez’s mother, defense counsel elicited testimony to establish
04-11-00423-CR
that Martinez was defending his mother at the time of the assault and that Roger wanted
Martinez to leave the home because Martinez did not have a job. Before re-direct examination,
the prosecutor approached the bench and argued that the cross-examination had opened the door
to the introduction of evidence that Martinez had previously been convicted of assaulting Roger
which was another reason Roger wanted Martinez to leave. Although the trial court agreed that
the door had been opened, the trial court stated they would “take it question by question” and
defense counsel could make his objections. During re-direct examination, the following
questioning occurred:
Q. Was there ever any physical violence between this defendant —
DEFENSE COUNSEL: Objection, Your Honor, outside the scope of
cross.
THE COURT: That will be overruled.
Q. (By Prosecutor) Was there ever any physical violence between this
Defendant and Roger?
A. Before this situation?
Q. Before this situation.
A. Yes.
DEFENSE COUNSEL: I’m going to object, Your Honor, outside the
scope; other matters, other wrongs.
THE COURT: It will be overruled, Mr. Valdez.
Q. (By Prosecutor) You said — the defense asked you whether or not Roger
liked Michael being there. Do you remember that?
A. Yes, sir.
Q. Did Roger like Michael being there?
A. Yeah, he did. He just wouldn’t contribute to the household. That was his
thing.
Q. Was he also upset because this defendant had been convicted of beating
him up in the past?
A. Yes, sir.
Q. How many times?
A. Plenty of times.
DEFENSE COUNSEL: I am going to object, Your Honor.
THE COURT: That will be overruled.
In order to claim on appeal that a trial judge erred in admitting evidence, the error must
be preserved by a proper objection. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App.
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04-11-00423-CR
2003); Ethington v. State, 819 S.W.2d 857, 858 (Tex. Crim. App. 1991). A proper objection is
one that is specific and timely. Martinez, 98 S.W.3d at 193; Ethington, 819 S.W.2d at 858. To
be timely, the objection should, if possible, be made before the evidence is actually admitted.
Ethington, 819 S.W.2d at 858. “If this was not possible, the defense must have objected as soon
as the objectionable nature of the evidence became apparent.” Id. A defendant also is required
to object each time the evidence is offered unless: (1) defense counsel obtains a running
objection; or (2) defense counsel lodges the objection and obtains a ruling to the objectionable
evidence in a hearing requested by defense counsel outside the jury’s presence. Id. at 858-59.
In this case, although the trial court discussed whether the door was opened in a hearing
outside the jury’s presence, the trial court stated the testimony would be taken question by
question, and the trial court instructed defense counsel to make his objections. No objection was
made, however, when the prosecutor asked if Martinez had been convicted of beating up Roger
in the past. Moreover, no objection was made when Roger later testified that Martinez had
previously assaulted him on more than one occasion. Because error was not properly preserved
with regard to the trial court’s admission of the testimony regarding the prior assaults, the trial
court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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