Opinion issued February 6, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00375-CR
THERESA CARMACK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Washington County, Texas
Trial Court Cause No. 28502-272
MEMORANDUM OPINION
A jury convicted appellant, Theresa Carmack, of the Class B misdemeanor offense of criminal mischief by damaging or destroying tangible property, and the trial court assessed punishment at 60 days in jail. See TEX. PEN. CODE ANN. § 28.03(a)(1), (b)(2) (Vernon Supp. 2003). We determine whether appellant preserved her appellate challenges. We affirm.
Background
Sheila Hughes, the complainant and appellant’s cousin, testified that she saw appellant scratch the driver’s side door of Sheila’s car with an unknown object early on the morning of October 30, 2000. Tamisha Hughes, Sheila’s sister and also appellant’s cousin, was also an eyewitness and corroborated Sheila’s account. Sheila testified that she and appellant had had problems in the past over a mutual boyfriend. Appellant denied having had problems with Sheila or having scratched Sheila’s car. Appellant testified that she was out of town when the car was scratched.
Overruling of Objection to the State’s Opening Argument
In her first point of error, appellant contends that the trial court erred in overruling her objection to the State’s opening remarks to the jury, which remarks allegedly concerned “prior misconduct by appellant,” in violation of the Rules of Evidence. See Tex. R. Evid. 402, 403, 404(b).
The State’s opening argument contained the following statement:
State:As I told you during voir dire, we have three witnesses that are related, Sheila, Tamisha, and Lillian Hughes. And Sheila I expect to be our first witness, and Sheila is the alleged victim, or she is the complainant in this case. And Sheila will testify I expect about many problems before October of 2000 that she has had—
(Emphasis added.) At this point, outside the jury’s presence, appellant objected to the State’s referring “to any extraneous offenses for which the accused is not on trial, and that [sic] what [the prosecutor] sounds like she’s about to go into.”
The trial court stated, “I think I agree with [appellant], but [the prosecutor] didn’t talk about any offenses. . . .” Appellant reiterated that she was concerned that the State was going to tell the jury about extraneous acts in opening argument. The trial court replied, “Why don’t you just in the opening statement leave it like it is, and then what we can do is go on the evidence.” and “We can cover that on the evidence objection.” The parties clearly understood the trial court to have ruled that the State could refer to general problems between the appellant and Sheila during the opening statement, but that the State could not go into specifics. Appellant objected generally to this ruling, and the trial court overruled that objection. The State then resumed its argument: “What I expect the evidence to show when she testified [sic] is previous to October 30th of 2000 that there were numerous problems between [Sheila] and the defendant.”
The State mentioned only that “numerous problems” existed between the two women, without explaining what the problems were or whether appellant had committed any acts at all. Appellant is thus incorrect that the State mentioned her prior misconduct. Moreover, to the extent that appellant’s objection was to the State’s anticipated mention of misconduct, the trial court granted that objection by restricting the State’s argument as it did. In that regard, appellant received the relief that she had sought, and there is no adverse ruling for us to review. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that failure to pursue objection to adverse ruling forfeits right to complain about error on appeal).
We overrule point of error one.
Denial of Written Motion
In point of error two, appellant claims that the trial court erred in denying her written “motion to exclude extraneous offense and misconduct testimony,” which she filed after the opening arguments and before the presentation of evidence. The trial court denied the motion, expressly noting that “[t]he objection may be renewed at the time of the offer of evidence.”
The trial court’s notation that the objection could be renewed when evidence was offered—which mirrored the trial court’s ruling during appellant’s objection to the State’s opening argument—indicates that the trial court essentially entered an in limine ruling, which generally does not preserve error. Cf. Johnson v. State, 981 S.W.2d 759, 760 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (construing pretrial motions to “suppress” evidence of prior convictions as motions in limine and holding that (i) overruling of pretrial limine motions did not preserve error and (ii) appellant’s later testifying to the complained-of evidence waived error); Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999) (“The trial court’s action appears to be in the nature of a ruling on a motion in limine, which does not preserve error.”). Because appellant’s motion did not preserve anything for review, overruling the motion was harmless. See Tex. R. App. P. 44.2(b).
We overrule point of error two.
Denial of Objection to Extraneous-Offense Evidence
In her third point of error, appellant asserts that the trial court erred in overruling her objection to Sheila’s testimony of her belief that appellant had previously scratched her car. Appellant claims that this testimony concerned an extraneous offense, which was inadmissible under rules of evidence 402, 403, and 404(b).
We review the trial court’s ruling on the admissibility of evidence for abuse of discretion. Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
As her opening argument revealed, appellant was relying on the defense of alibi and on the theories that Sheila and her sister had misidentified appellant, were unreliable witnesses, or had falsely accused appellant. On direct examination, Sheila testified that appellant scratched her car door only once on October 30 and that another scratch on the car door had been made before October 30. On cross-examination, appellant impeached Sheila by asking if Sheila had claimed, in her written police report, that she had seen appellant make both scratches on October 30. Sheila conceded that she had.
The State began its re-direct examination this way:
State:Ms. Hughes, in this statement where you told the officer that you saw [appellant] put two scratches on the driver’s side, why did you tell the police two scratches?
Sheila:I didn’t see [appellant] do the first one, but I knew she had did that one.
State:Okay. So you didn’t—
Sheila:I didn’t actually see her put that first one there, but I knew she had did it.
Appellant then objected that Sheila’s testimony was “nonresponsive,” “nonrelevant,” and “unduly prejudicial” and moved to strike the testimony. The trial court overruled appellant’s objection.
A defendant should object “as soon as the ground for objection becomes apparent.” Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997); accord Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). Therefore, if a question calls for an objectionable response, the defendant should object before the witness responds. Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355. A defendant who waits to object until after an objectionable question has been asked and answered, and who shows no legitimate justification for the delay, waives error. Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355. All of appellant’s objections to Sheila’s testimony were waived for having been asserted only after Sheila had answered two questions on the topic. See Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355.
We overrule point of error three.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).