Robert Lee Sargent, Jr. v. State

                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00158-CR

ROBERT LEE SARGENT JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 77th District Court
                            Limestone County, Texas
                             Trial Court No. 12880-A


                          MEMORANDUM OPINION


      Appellant, Robert Lee Sargent Jr., was convicted of unlawful possession of less

than one gram of cocaine, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. §

481.115(b) (West 2010). We affirm.

                    I.     EVIDENCE OF APPELLANT’S PRIOR CONVICTIONS

      In his sole issue on appeal, appellant contends that the trial court abused its

discretion by permitting the State to impeach him with evidence of his prior convictions
after the State failed to give “sufficient advance written notice,” as is required by Texas

Rule of Evidence 609(f). See TEX. R. EVID. 609(f).1

A.      Facts

        The record reflects that appellant filed a motion in limine, stating that he

believed the State would “attempt to adduce evidence that the Defendant is guilty of an

offense or bad act other than the offense on trial.” Thereafter, on March 11, 2013, the

first day of trial, the State tendered a written notice of its intent to use appellant’s prior

convictions, arrests, and bad acts for both the guilt-innocence and punishment phases of

trial. This offer was made outside the presence of the jury and after appellant filed his

motion in limine. In its notice, the State referenced appellant’s 2008 convictions for

burglary of a habitation and assault of a public servant. Appellant objected to the

timeliness of the written notice, and the trial court subsequently conducted a hearing on

the issue.

        At the hearing, defense counsel complained that the State did not timely provide

him with formal, written notice of its intent to introduce appellant’s prior convictions;

however, he did acknowledge the following: “I will say that Mr. Burks [Assistant

District Attorney] did send me an e-mail on January 23rd.                        Gave me the two


        1   Texas Rule of Evidence 609(f) provides the following:

        Notice. Evidence of a conviction is not admissible if after timely written request by the
        adverse party specifying the witness or witnesses, the proponent fails to give to the
        adverse party sufficient advance written notice of intent to use such evidence to provide
        the adverse party with a fair opportunity to contest the use of such evidence.

TEX. R. EVID. 609(f) (emphasis in original).



Sargent v. State                                                                                    Page 2
convictions. However, the formal notice, we didn’t get that until today, so my client has

asked that I object to proceeding.” The trial court overruled defense counsel’s objection,

and the trial continued.

        During the guilt-innocence phase, appellant testified on his own behalf. And in

response to questions by defense counsel on direct examination, appellant admitted

that he had “got[ten] in trouble for burglary of a habitation and assault [of] a public

servant” and that he had pleaded guilty to both offenses. On cross-examination, the

State impeached appellant with these prior convictions. A review of the reporter’s

record shows that the State spent approximately two of fourteen pages questioning

appellant about his prior convictions. The majority of the State’s cross-examination

focused on appellant’s version of the facts underlying this conviction, not on his prior

convictions. Ultimately, the jury found appellant guilty of the charged offense, and the

trial court sentenced appellant to sixteen months’ incarceration in the State-Jail Division

of the Texas Department of Criminal Justice.

B.      Error Preservation

        To preserve error for appellate review, a complaining party must make a timely

and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must

correspond or comport with objections and arguments made at trial. Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1999); see Wright v. State, 154 S.W.3d 235, 241 (Tex.

App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the

issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154

Sargent v. State                                                                     Page 3
S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding

that an issue was not preserved for appellate review because appellant’s trial objection

“does not comport with” the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189,

197 (Tex. Crim. App. 1999) (same).

        Here, trial counsel objected to proceeding with trial, not to the use of the

evidence. Consequently, appellant’s appellate complaints do not comport with those

made in the trial court. And as such, we cannot say that appellant preserved this issue

for review. See TEX. R. APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Wilson, 71

S.W.3d at 349; Dixon, 2 S.W.3d at 273. Additionally, because appellant preemptively

introduced evidence of his prior convictions on direct examination, we also conclude

that appellant has waived his right to complain about this evidence on appeal. See Ohler

v. U.S., 529 U.S. 753, 759, 120 S. Ct. 1851, 1855, 146 L. Ed. 2d 826 (2000); Johnson v. State,

981 S.W.2d 759, 760 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); see also Villasana v.

State, Nos. 05-07-00904-CR, 05-07-00905-CR, 2008 Tex. App. LEXIS 5462, at **15-16 (Tex.

App.—Dallas July 24, 2008, pet. ref’d) (mem. op., not designated for publication). Based

on the foregoing, we overrule appellant’s sole issue on appeal.

                                       II.     CONCLUSION

        We affirm the judgment of the trial court.



                                                  AL SCOGGINS
                                                  Justice




Sargent v. State                                                                        Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 6, 2014
Do not publish
[CR25]




Sargent v. State                               Page 5