QUINTON WESLEY RUTH v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

QUINTON WESLEY RUTH, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00972–CR

Decided: April 9, 2012

Before Justices FitzGerald, Richter, and Lang–Miers

MEMORANDUM OPINION

Opinion By Justice FitzGerald

A jury convicted appellant Quinton Wesley Ruth of burglary of a habitation.   The trial court assessed his punishment at fifteen years' confinement and a $1000 fine.   In this Court, appellant raises two evidentiary issues, complaining of evidence excluded and evidence admitted.   Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to rule 52.8(d) of the Texas Rules of Appellate Procedure.   See Tex.R.App. P. 52.8(d).  We affirm.

The complaining witness, Stephanie O'Brien, observed a man in her detached garage;  he was holding an armful of lawn tools, including a leaf blower.   O'Brien screamed at him.   When the man

saw her, he ran from the garage, through the backyard, and out a gate that led to an alley, carrying the lawn tools with him.   O'Brien called 911 and told the police the intruder was wearing a green undershirt, an open tan button-down shirt, and dark pants.   Less than five minutes later, police searching the alley came upon appellant, wearing clothes that matched those O'Brien had described.   The police found tools some fifteen to twenty-five yards from where they encountered appellant;  O'Brien identified the tools as her property.   O'Brien identified appellant in a photographic lineup.   Appellant's thumb print matched one found on O'Brien's leaf blower.   O'Brien identified appellant in person at trial.

In his first issue, appellant contends the trial court excluded evidence that would have established that the perpetrator of the crime could have been someone else.   Appellant attempted to offer testimony from a witness who lived close to where appellant was arrested.   In a sub rosa hearing, the witness stated that eight days after appellant was arrested he observed a suspicious man peeking in the home and garage windows of another neighbor.   Appellant's witness held the man at gunpoint until police arrived and arrested him.   The State objected to the testimony on relevance grounds, claiming the incident was neither close in time nor otherwise similar to the O'Brien burglary.

We review a trial court's decision to exclude evidence for an abuse of discretion.  Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010).   Relevant evidence must have a tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  Tex.R. Evid. 401.   In this case, the trial court could have concluded that nothing about the second incident made any fact in appellant's case more or less likely.   Appellant contends he was misidentified and that this evidence would have helped him to establish that theory.   But nothing about the second incident tends to show appellant was misidentified.   O'Brien identified his picture in the lineup and again at trial.   Nothing in the proffered evidence showed the two men were likely to be confused.   Nor did the proffered evidence refute the fingerprint evidence that tied appellant to the O'Brien burglary.   Evidence that is not relevant is inadmissible.  Tex.R. Evid. 402.   We discern no abuse of discretion in the trial court's decision not to admit testimony concerning the later incident.   We overrule appellant's first issue.

In his second issue, appellant complains the trial court erroneously admitted O'Brien's lay opinion that appellant had knowingly and intentionally entered her garage to commit theft.   Appellant argues the testimony did not comport with the requirements of rule 701 of the Texas Rules of Evidence.   However, when the opinion was elicited from O'Brien at trial, appellant's counsel objected that O'Brien was “drawing a legal conclusion.”   Appellant's complaint on appeal is not the same one he made in the trial court.   Accordingly, he has failed to preserve error.   See Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (whether party's particular complaint is preserved depends on whether complaint on appeal comports with complaint made at trial).   We overrule appellant's second issue.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

QUINTON WESLEY RUTH, Appellant

No. 05–10–00972–CR V.

THE STATE OF TEXAS, Appellee

Appeal from the Criminal District Court No. 4 of Dallas County, Texas.   (Tr.Ct.No.F09–72828–K).

Opinion delivered by Justice FitzGerald, Justices Richter and Lang–Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 9, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

KERRY P. FITZGERALD JUSTICE

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