Johns, Marcus Lynn v. State

Affirmed and Memorandum Opinion filed May 1, 2003 Affirmed and Memorandum Opinion filed May 1, 2003. In The Fourteenth Court of Appeals _______________ NO. 14-02-00206-CR _______________ MARCUS LYNN JOHNS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from 183rd District Court Harris County, Texas Trial Court Cause No. 853,289 M E M O R A N D U M   O P I N I O N Appellant, Marcus Johns, appeals his conviction for aggravated robbery. He contends the trial court erred in limiting cross-examination of a key witness and in failing to instruct the jury on a lesser-included offense. We affirm. Facts Catherine Patterson, a professor at the University of Houston, and appellant were passengers in an on-campus elevator. During the elevator ride, appellant threatened Professor Patterson with a gun and demanded her purse. After taking her purse, he exited the elevator, and told her to remain inside. After he left, Professor Patterson got off the elevator and called the police from her office. She described appellant and later assisted in developing a composite sketch. A few days later, Officer Geraldo stopped a car that had been involved in an aggravated robbery. Appellant was driving, and there were four passengers BB a woman named Tangela Battles and three children. After stopping the car, Officer Geraldo saw a gun in plain view and arrested appellant. A subsequent search of the car revealed Professor Patterson=s personal papers and stolen credit cards. During trial, Professor Patterson identified appellant and provided most of the testimony against him. In his defense, appellant claimed that Tangela Battles found the professor=s purse in a public restroom near the university. He further testified that although he did not steal the purse, he would have used the credit cards if given an opportunity. When called as a rebuttal witness, Ms. Battles denied appellant=s explanation about possession of Professor Patterson=s belongings. Accordingly, appellant=s counsel sought to discredit Ms. Battles through questions about her current deferred adjudication probation for welfare fraud. Cross-examination In appellant=s first issue, he contends the trial court erred in disallowing cross-examination about Ms. Battles=s deferred adjudication. We review a trial court=s decision to limit a defendant=s cross‑examination for abuse of discretion. See Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993); Knox v. State, 31 S.W.3d 700, 702 (Tex. App.CHouston [1st Dist.] 2000, no pet.). Generally, a defendant is permitted to cross‑examine a witness about deferred adjudication probation to show a potential motive, bias, or interest to testify for the State. See Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001). Here, the trial court precluded such cross-examination through its ruling on the State=s motion in limine. Generally, a ruling on a motion in limine does not preserve error for appellate review. See Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988). Additionally, a ruling on a motion in limine that excludes evidence Ais subject to reconsideration throughout trial@ and in order Ato preserve error an offer of the evidence must be made at trial.@ Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). During cross-examination, appellant made no attempt to establish bias, make an offer of proof, or object to Ms. Battles=s testimony. He failed to ask in any way for the trial court to reconsider the issue. Accordingly, he has not preserved error for our review. See Tex. R. App. P. 33.1(a). Therefore, we overrule appellant=s first point of error. Lesser-included offense In his second point of error, appellant contends the trial court erred by failing to instruct the jury on the lesser-included offense of theft. Generally, a trial court must submit a lesser‑included offense when a defendant establishes (1) that the lesser offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record which would permit a rational jury to find that if the defendant is guilty at all, he is guilty only of the lesser offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We recognize that theft can be a lesser-included offense of aggravated robbery. Jacob v. State, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995). In this case, however, we limit our review to whether evidence in the record demonstrates that appellant was guilty only of theft. In doing so, we must consider all the evidence introduced at trial. Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995). At trial, appellant denied committing aggravated robbery of Professor Patterson. Rather, he claims that he came into possession of her belongings through Ms. Battles. He further claims that he was entitled to the lesser-included charge of theft because if provided an opportunity, he would have used the credit cards. The essential elements of theft include (1) unlawful appropriation of property and (2) intent to deprive the owner of property. Tex. Pen. Code Ann. ' 31.03(a) (Vernon 2003). Even if the jury believed appellant=s testimony, he would not be guilty of theft because he had not yet unlawfully appropriated property of another. Id. ' 31.03(b). According to appellant=s testimony, he is guilty of no crime. Thus, the jury could have either (1) accepted the State=s version of the facts and found appellant guilty of aggravated robbery or (2) rejected the State=s facts, believed appellant=s testimony, and found him not guilty of any offense. AIf a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser included offense, then a charge on the lesser included offense is not required.@ Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). Finally, the State=s evidence established only that appellant committed aggravated robbery, not theft. Because the elements of theft were not raised in the evidence presented either by the State or appellant, the trial court did not err in refusing to instruct the jury on the lesser-included offense of theft. We overrule appellant=s second point of error. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed May 1, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).