Miller, Mario, AKA Mario Arturo Miller III AKA Armendariz v. State

Criminal Case Template COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS MARIO MILLER, A/K/A MARIO ARTURO MILLER, III, A/K/A ARMENDARIZ, Appellant, v. THE STATE OF TEXAS, Appellee. § § § § § No. 08-02-00099-CR Appeal from the 205th District Court of El Paso County, Texas (TC# 20010D05002) MEMORANDUM OPINION Mario Miller entered an open plea of guilty to aggravated sexual assault of a child. He was convicted and sentenced by the trial court to forty-five years in prison. In two points of error, Miller argues that the trial court erred by allowing a witness at the punishment hearing to testify that he committed several extraneous offenses, including a previous sexual assault on another child. We conclude that these issues are not preserved for review. Accordingly, we affirm the trial court's judgment. Previous Sexual Assault Only one witness testified at the punishment hearing. She recounted what another child told her about being sexually assaulted by Miller. In his first point of error, Miller argues that this testimony was inadmissible hearsay because it did not fit within the exception for "outcry" evidence. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). The prosecutor initially asked the witness whether the child "ma[d]e any statements" to her. Defense counsel immediately lodged a hearsay objection, which the court overruled. The witness responded that the child did make some statements and, in further response to the prosecutor's questions, the witness described the circumstances in which the statements were made. The prosecutor then asked the witness, "What did [the child] tell you that . . . Mario Miller[] had done . . . ?" Defense counsel made no objection to this question. The witness proceeded to describe, without objection, the details of the sexual assault reported by the child. Later on during her direct examination, the witness made additional references to this sexual assault without objection. To preserve error in the admission of evidence, a party must make a timely objection to the evidence and obtain a ruling on the objection. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Furthermore, a party generally must object every time inadmissible evidence is offered. Ethington, 819 S.W.2d at 858. Although Miller objected to the question about whether the child made any statements to the witness, he did not object to the questions that actually elicited the statements. We therefore conclude that any error in the admission of these statements is not preserved. See Braughton v. State, 749 S.W.2d 528, 531-32 (Tex. App.--Corpus Christi 1988, pet. ref'd) (holding that error was not preserved when defendant objected once to hearsay testimony, but failed to object on three other occasions when same witness gave the same testimony); see also Missouri Pac. R.R. v. Brown, 862 S.W.2d 636, 638 (Tex. App.--Tyler 1993, writ denied) (holding that error was not preserved because defendant failed to object when evidence was offered, even though defendant had previously objected when plaintiff indicated he would offer the evidence). Miller's first point of error is overruled. Other Extraneous Offenses In addition to her testimony regarding the sexual assault, the witness also testified that Miller committed several other extraneous offenses. Specifically, she testified that Miller abused drugs and alcohol, that he was a thief and a gang member, that he was physically abusive toward her, that he was arrested for unlawfully carrying a weapon while attempting to execute a plan to rob a bank, and that he dated a fourteen-year-old girl when he was twenty-five. The witness also testified that she was with Miller when he committed the offenses of evading arrest, criminal mischief, and failure to identify. In his second point of error, Miller argues that this testimony was inadmissible because it was unreliable and because the extraneous offenses were not proven beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2003). At the punishment hearing, Miller's only objection to the witness's testimony was the hearsay objection mentioned in our discussion of his first point of error. Miller did not make a contemporaneous objection to any of the testimony regarding extraneous offenses. Accordingly, any error in the admission of this testimony is not preserved. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Ethington, 819 S.W.2d at 858; see also Wooden v. State, 929 S.W.2d 77, 79 (Tex. App.--El Paso 1996, no pet.) (holding that any error in admission of extraneous offense evidence was not preserved because argument raised on appeal was not raised at trial). Miller's second point of error is overruled. Conclusion For the reasons stated herein, the judgment of the trial court is affirmed. SUSAN LARSEN, Justice June 12, 2003 Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish)