GRANT v. STATE (1997)

OPINION

Howard Lee Grant was indicted for the murder of Larry Matthews.   The indictment alleged Grant had three prior convictions.   A jury convicted Grant of voluntary manslaughter, found the enhancement allegations true and assessed punishment at confinement in the Texas Department of Criminal Justice-Institutional Division for life.   Grant urges five points of error.

The first point of error alleges the evidence is insufficient;  specifically that, there is no evidence Grant was acting under the immediate influence of sudden passion arising from an adequate cause.   The State argues Grant is estopped from raising this issue since he did not object to the inclusion of voluntary manslaughter in the charge.   While the Court of Criminal Appeals has not ruled whether acquiescence (the defendant neither requested nor objected to the inclusion of the lesser-included offense) to the submission of a voluntary manslaughter charge estops a defendant from complaining on appeal there is no evidence of “sudden passion,” several courts of appeal have considered the issue.   In Scott v. State, 867 S.W.2d 148 (Tex.App.-Austin 1993, no pet.), a murder/voluntary manslaughter case, the court stated “[t]he Court of Criminal Appeals has made clear that by invoking the benefit of the lesser included offense by not objecting to its submission to the jury, appellant is estopped from complaining on appeal that the evidence failed to establish all the elements of the lesser offense.”  Id. at 154 (citing State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App.1991);  Bradley v. State, 688 S.W.2d 847, 853 (Tex.Crim.App.1985);  Richardson v. State, 832 S.W.2d 168, 171 (Tex.App.-Waco 1992, pet. ref'd)).

In Tamez v. State, 865 S.W.2d 518 (Tex.App.-Corpus Christi 1993, pet. ref'd), the court stated:

Appellant also argues that there is no evidence that he was acting under the immediate influence of sudden passion arising from an adequate cause.   We do not reach the merits of this complaint.   Appellant did not object to having the jury instructed on the lesser included offense of attempted voluntary manslaughter.   As appellant did not object and received the benefit of having the jury charged on this issue, he cannot complain that the evidence fails to establish “sudden passion arising from an adequate cause.”

Id. at 519-20.

Earlier in Brown v. State, 740 S.W.2d 45 (Tex.App.-Houston [14th Dist.] 1987, no pet.), also a murder/voluntary manslaughter case, the court stated:

While it appears the evidence in this case does not raise the issue of voluntary manslaughter, we need not so decide.   In this case appellant did not object to the charge on voluntary manslaughter.   The court of criminal appeals stated in Bradley, 688 S.W.2d at 853, that under these circumstances:

Failure to object to the charge when given on the ground that the evidence does not support it would signal acquiescence on the part of the accused in the trial court's judgment that sudden passion was raised.

By invoking the benefit of the lesser included offense charge at trial in not objecting to its submission to the jury, an accused will be estopped from then complaining on appeal that the evidence failed to establish all the elements of the offense.

Id. at 46.

In Vann v. State, 853 S.W.2d 243 (Tex.App.-Corpus Christi 1993, pet. ref'd), the court considered the estoppel argument and discussed the issue, particularly Lee and Bradley.   The court stated:

As shown above, the Court of Criminal Appeals continually states a concern that courts should not construe the law to allow murder defendants to raise the sudden passion issue to gain a voluntary manslaughter conviction, thereby avoiding a murder conviction, and subsequently to gain an acquittal on appeal by arguing insufficient evidence of sudden passion.   We note that this concern only attaches to the sudden passion issue.   We find no rational reason to consider a failure to object to a jury charge of voluntary manslaughter as precluding one from challenging the sufficiency of the evidence supporting the other elements of murder.   We are also mindful that a majority of the Court of Criminal Appeals has not yet ruled that a defendant who merely fails to object to a lesser included offense charge is estopped from challenging the sufficiency of the evidence supporting a conviction for the lesser included offense.   Consequently, we have decided to address appellant's point on the merits.

Id. at 247.

Thus Vann appears to create a split in authority among the courts of appeals.   In hope the Court of Criminal Appeals will resolve the issue, we decline to address Grant's point on the merits and hold his failure to object to the submission of the voluntary manslaughter charge estops him from appealing the sufficiency of the evidence on the issue of “sudden passion.”   This point of error is overruled.

The judgment is affirmed.

Point of error two alleges reversible error occurred when the trial court admitted evidence of an extraneous shooting offense.   The incident in question was a “shoot-out” between Grant and Matthews.   During the cross-examination of Grant's fiancée, the prosecutor elicited testimony about Grant shooting another individual the day before the shoot-out with Matthews.   The state argues the point of error has been waived for failure to make a timely objection.   The record, in pertinent part, contains the following:

Q I have to ask you to answer only the questions that I ask, ma'am.   Now, are you now claiming that Detective Dean put something in the statement that wasn't true?

A No, I'm not saying that.

Q Okay.

A I'm saying he got mixed up.   He put something in there that didn't happen that same day.

Q It happened the day before?

A It happened the day before.

Q What was it that happened the day before?

A It was an argument on Orange Street.

Q On Orange street [sic]?

A Uh-huh.

Q Between who?

A Between Howard and somebody.

Q Do you have any idea who the other guy was?

A No.

Q Do you have any idea what the argument was about?

A No.

Q How did the argument end?

A We got in the car and left.

Q Did something happened [sic] before you guys got in the car?

A He got shot.

Q Who got shot?

A The boy.

Q The other boy?

A Yeah.

Q Who shot him?

A Howard did.

Q What were they arguing about?

A I'm not sure.

Q Didn't you tell Detective Dean-I'll go through this carefully-“After talking to the guy, Howard came back to the car, told me to give me his thing.”   What was he talking about?

A His gun.

Q Where did you have it?

A In my purse.

Q Do you normally carry his gun for him?

A Well, when he was, you know, on the streets.

Q So, when he's on the street, he doesn't carry his own gun, you carry it for him?

A He doesn't have it all of the time.   He don't have it all of the time that he carry it around.   And I only carry it for protection.

Q “I asked Howard what he wanted to do with it and he didn't tell me. and Howard reached in the car and grabbed the purse from between my legs and took the gun, a black revolver.”   Did you make that statement to Detective Dean?

A Yes.

Q “And shot the guy who was standing next to the car.”   Did you make that statement to Detective Dean?

A Yes.

[Defense Counsel]:  Objection, Judge.   The Prosecutor is attempting to confuse the witness.   She's already suggested that it was an error and this is an extraneous offense.   It has nothing to do with the activity that took place on April the 7th.

THE COURT:  Overruled, sir.   Go ahead.

In general, a defendant must make a timely objection in order to preserve error in the admission of evidence.  Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995);  Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991);  Bogan v. State, 837 S.W.2d 422, 428-29 (Tex.App.-Beaumont 1992, no pet.);   see also Tex.R.Crim. Evid. 103(a)(1) and Tex.R.App. P. 52.   Grant's objection was clearly untimely;  nothing was preserved for review.   This point of error is overruled.

The remaining points of error complain of the introduction of the three “pen packets” in connection with the enhancement allegations.   The points allege the trial court erred in admitting the exhibits into evidence “since the exhibit demonstrated that the sentence was invalid.”   Prior to trial Grant had filed a motion to dismiss the enhancement portion of the indictment.1  The written motion alleged there was no valid judgment and sentence against Grant, hence no adequate proof of a final conviction.   Grant's trial objection referenced the motion on file, alluded to an erroneous date, alleged “there is no pen packet that accompanies the 1983 judgment and that the act, in fact, occurred July the 8th, 1978.”

Grant now contends “that the enhancement allegations were invalid and the sentences infirm, on the basis that the sentences were ‘back-dated’ and therefore no lawful and valid sentence had ever been pronounced against appellant in the three cause numbers used to enhance his punishment up to life.”   Grant argues the sentences are infirm under Ex parte Hayward, 711 S.W.2d 652 (Tex.Crim.App.1986), have never been reformed and, therefore, are invalid.2  Because Grant's argument on appeal does not comport with his objections at trial, nothing is preserved for review.  Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App.1997);  Tamayo v. State, 924 S.W.2d 213, 216 (Tex.App.-Beaumont 1996, no pet.);  Tex.R.App. P. 52(a).   These points of error are overruled.

The judgment is affirmed.

AFFIRMED.

FOOTNOTES

FN1.  The record does not reflect any written or oral ruling on the motion..  FN1.  The record does not reflect any written or oral ruling on the motion.

FN2.  See Tatmon v. State 767 S.W.2d 945, 947-48 (Tex.App.-Beaumont 1989, pet. ref'd), and Lloyd v. State, 722 S.W.2d 168, 169 (Tex.App.-Beaumont 1986, pet. ref'd)..  FN2.  See Tatmon v. State 767 S.W.2d 945, 947-48 (Tex.App.-Beaumont 1989, pet. ref'd), and Lloyd v. State, 722 S.W.2d 168, 169 (Tex.App.-Beaumont 1986, pet. ref'd).

BURGESS, Justice.