Michael Andrew Lindsey v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00261-CR
___________________________
MICHAEL LINDSEY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1484541D
Before Sudderth, C.J.; Pittman and Birdwell, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
Appellant Michael Lindsey pled guilty to burglary of a building and true to the
enhancement allegation in the indictment. See Tex. Penal Code Ann. §§ 12.425(a),
30.02(a)(1), (3), (c)(1). After a unitary proceeding, the trial court convicted him and
sentenced him to eight years’ confinement, two years less than the maximum
confinement available. See id. 12.34(a), 12.425(a). In one issue, Appellant challenges
complainant Edward Harrison’s unobjected-to testimony that Appellant should
receive the maximum confinement available for the offense. Because Appellant did
not preserve his issue, we affirm the trial court’s judgment.
BRIEF FACTS
Mr. Harrison managed AR Contractors, a group of companies. Appellant’s
grandfather had worked for AR Contractors for decades, and the two families were
intertwined. Appellant had worked for AR Contractors on two separate occasions,
but both periods of employment ended because of his heroin use. While Appellant
was on parole for a previous conviction, he obtained a combination to the safe at AR
Contractors, broke into the building, opened the safe, and took jewelry and coins
from it; he also stole shotguns from the building. Appellant’s mother identified him
on the surveillance video the police showed her.
Appellant pled guilty without a plea bargain, and the trial court decided his
punishment. Mr. Harrison was the only witness. He testified on direct examination
by the prosecutor:
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Q. Do you believe . . . you feel like you know what justice would be
in this case?
A. Yes, I do, I think.
Q. What do you think . . . is the best outcome in this case?
A. I think he needs to get the maximum. This is Texas. No matter
what the maximum is, he’s not going to serve it, but what we’ve
got to look at is logic that as soon as they let him out of prison,
within 90 days, he’s going to go back. Why should we keep
spending money to re-prosecute him, . . . let him out on parole,
then y’all can pick him up and put him back in there because he’s
not going to make 90 days?
Mr. Harrison also testified on cross-examination about the sentence Appellant should
receive:
Q. ....
You said in this thing that you want him to get a lot of
time, because if he gets out in a month, he’ll be sent right back?
A. Guaranteed. No doubt in my mind. All I’m looking at is the
economics. Give him the maximum then that will wait for the
next 10 years, whatever that number is. We don’t have to spend
all this money on court, then they can just haul him back there
and put him back in a cage because that’s what he wants.
Finally, the trial court asked Mr. Harrison questions about his opinion on
giving the maximum sentence to Appellant:
Q. You said giving him the max. Why is that cheaper? Why do you
think that’s cheaper?
A. Well, if the maximum is 20 years, then this is Texas, he’s not
going to serve but two or three years period, but then he’s on
parole for the rest of it, so as soon as he—give him 90 days, he’ll
screw up, then you don’t have to have him back in court. They
can just revoke his parole and give him his room back.
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The record reveals no objections to Mr. Harrison’s testimony recommending
the punishment Appellant should receive for this offense. The only objections were
to the prosecutor’s (1) asking Mr. Harrison’s opinion on whether Appellant should
have been released on parole from his prior conviction and (2) “arguing that the
Court should consider our parole laws in assessing this particular punishment and
how they’ll be applied to this defendant in this particular case.”
DISCUSSION
In his sole issue, Appellant contends that the trial court abused its discretion by
admitting Mr. Harrison’s opinion of the punishment Appellant should receive.
Appellant forfeited this issue by failing to object.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion stating the specific grounds, if not
apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.
State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an
express or implicit adverse trial-court ruling or object to the trial court’s refusal to
rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim.
App. 2013); Martinez v. State, 17 S.W.3d 677, 686 (Tex. Crim. App. 2000).
By failing to object to Mr. Harrison’s testimony that he should get the
maximum sentence, Appellant failed to preserve error. See Tex. R. App. 33.1(a);
Ramirez v. State, No. 02-18-00131-CR, 2019 WL 238123, at *11 (Tex. App.—Fort
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Worth Jan. 17, 2019, pet. filed) (mem. op., not designated for publication)
(recognizing the impropriety of the witness’s testimony opining what the defendant’s
sentence should be but holding he failed to preserve error). We overrule Appellant’s
issue.
CONCLUSION
Having overruled Appellant’s only issue, we affirm the trial court’s judgment.
/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 7, 2019
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