Jared Heath Gaines v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00141-CR ______________________________ JARED HEATH GAINES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 20988 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION Jared Heath Gaines appeals from his conviction for murder. The sentence was imposed May 3, 2006. Gaines did not file a motion for new trial. Gaines filed a pro se notice of appeal July 6, 2006. According to Rule 26.2, Gaines had thirty days after the date sentence was imposed to file a notice of appeal. See Tex. R. App. P. 26.2(a)(1). Therefore, Gaines had until June 2, 2006, to file a notice of appeal. Hence, this appeal is untimely, and we are without jurisdiction to hear this case. We dismiss the appeal for want of jurisdiction. Donald R. Ross Justice Date Submitted: July 11, 2006 Date Dismissed: July 12, 2006 Do Not Publish was held outside the jury's presence to determine admissibility. When the State attempted to impeach Hayes with this 1991 conviction, Hayes objected and the trial court conducted a hearing outside the presence of the jury. During that conversation with counsel, Hayes objected that evidence of the conviction would violate the motion in limine and that the evidence was prejudicial, but he did not object that the conviction used to impeach was too remote to be admissible. See id. To properly preserve error with regard to inadmissible extraneous offense evidence, there must have been a timely request, objection, or motion stating the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint and secure a ruling. Tex. R. App. P. 33.1. A motion in limine will not suffice as an objection at trial. Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988). The granting of a pretrial motion in limine will not preserve error; it is necessary that an objection be made at the time the subject is raised during the trial. Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003); Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994). (2) Here, the motion in limine requested that the State be required to approach the bench before mentioning any extraneous offense. (3) At trial, the objection was that the State had violated the motion in limine; for that, the trial court has the authority to sanction the offending attorney, (4) but an order in limine is not a ruling on the admissibility of the evidence. Hayes did not object to the remoteness of the conviction at trial; therefore, he failed to preserve this complaint for our review. See Tex. R. App. P. 33.1(a); Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. [Panel Op.] 1980). IV. Sufficiency of the Evidence Hayes also contends that the evidence is legally and factually insufficient to support the verdict. In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the prosecution and determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009). In a factual sufficiency review, we review all the evidence, but do so in a neutral light instead of the light most favorable to the verdict. We determine whether the evidence supporting the verdict is either too weak to support the fact-finder's verdict, or, considering conflicting evidence, is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong and manifestly unjust. Id. at 524; Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). In this analysis, we use a hypothetically correct jury charge to evaluate both the legal and factual sufficiency of evidence. Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In this case, the sole contested factual issue is whether there was evidence that Hayes was driving the vehicle. Two neighbors and the arresting officer testified that he was driving a vehicle on a public highway. Money testified that he followed the vehicle down the roadway until it stopped in front of Hayes' residence and that although he could not identify Hayes directly as the driver, he saw only one silhouette inside the cab, saw no one else get out, and that Hayes got out through the driver's side door. Hayes presented testimony from Barnaby that she had driven him home, with an explanation of why she was not in the vehicle with Hayes when the police arrived, and from another person explaining that she had called Barnaby to drive him home. He also testified that the door handle on the passenger side of the vehicle was nonfunctional; thus, he had to exit through the driver's side door. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and reconciliation of conflicts in the evidence is within the exclusive province of the jury. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The jury may choose to believe some testimony and disbelieve other testimony. Id. In this case, that is precisely what occurred. Two different theories of the case were presented, each with competent evidence in support. Not only is the evidence legally sufficient, but we also determine that the State's evidence is not too weak to support the verdict and the verdict is not manifestly wrong or unjust. Therefore, the evidence is both legally and factually sufficient to support the verdict. The contentions of error are overruled. We affirm the judgment of the trial court. Jack Carter Justice Date Submitted: December 9, 2009 Date Decided: December 29, 2009 Do Not Publish 1. We note that the State also provided notice that it might use a prior conviction for DWI in Hunt County, with the offense occurring June 7, 1996. It seems safe to assume that he was released from federal prison before that date. 2. We have previously acknowledged a seldom-applied stricture indicating that a motion in limine may in some circumstances be sufficient to apprise the trial court of the basis of a subsequent nonspecific objection at trial. Thomas v. State, 1 S.W.3d 138, 143 (Tex. App.--Texarkana 1999, pet. ref'd); Snellen v. State, 923 S.W.2d 238, 242 (Tex. App.--Texarkana 1996, pet. ref'd); Blacklock v. State, 681 S.W.2d 155, 156 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd). This situation does not reach that level. The objection was specific, but complained first of the State's violation of the motion in limine, and second that impeachment was inappropriate. The remoteness of the prior conviction was not mentioned. 3. We do not find in the record a written order granting the motion in limine, but the parties and the trial judge refer to a "violation" of the motion. 4. See Onstad v. Wright, 54 S.W.3d 799, 806 (Tex. App.--Texarkana 2001, pet. denied).