Opinion issued January 6, 2005.
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00834-CR
MARK OTTO KOSLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1127903
MEMORANDUM OPINION
A jury found appellant, Mark Otto Kosler, guilty of assault and assessed punishment at 30 days confinement in the Harris County Jail. Appellant’s sentence was suspended, and he was placed on community supervision for 60 days. In his sole point of error, appellant contends that the trial court erred in allowing testimony that appellant had committed numerous extraneous offenses. We affirm.
Background
On July 7, 2002, appellant moved out of the family home because he and his wife, Cindy, were getting a divorce. Cindy testified that appellant left because she threatened to call the police after he assaulted her earlier that day. She also testified that, when appellant returned to the house a couple of weeks later, she and appellant had an argument.
A week later, Cindy was collecting garage sale signs she had placed around the neighborhood. As she was stopped near the entrance to their subdivision, appellant approached Cindy’s car and threatened her. She began driving toward her house to get away from appellant. Appellant followed in his car. As she attempted to run into the house, appellant grabbed the back of her hair. Appellant hit Cindy on the side of her head. She briefly escaped and attempted to call 911. She could not complete the call because appellant pulled the telephone out of the wall and began to beat her over the head with the telephone. Appellant dragged Cindy into another room and continued to beat her. Appellant eventually left when Cindy told him that a neighbor was going to call the police.
Extraneous Offenses
In his sole issue, appellant contends that the trial court erred on four occasions in allowing Cindy to volunteer unsubstantiated testimony that appellant had committed numerous extraneous offenses.
The general prerequisite to presenting a complaint for appellate review is a showing in the record that (1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint, and (2) the trial court ruled adversely (or refused to rule, despite objection). Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (en banc). Absent any objection, any error in admission of an extraneous offense is waived. Schwartz v. Forest Pharmaceuticals, 127 S.W.2d 118, 123 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). If counsel does not pursue the objection to an adverse ruling, error is not preserved. Tex. R. App. P. 33.1(a)(1); see also Tucker, 990 S.W.2d at 262.
In this case, appellant waived error when he failed to properly object to three of the extraneous offenses he now complains of on appeal. With respect to the fourth extraneous offense, appellant received the relief that he had requested from the court.
Statement #1
Appellant’s counsel asked, “Was that condition caused at birth or sometime after birth?” Cindy replied, “After birth, yes. From a blow to the nose.” Appellant’s counsel then asked, “From a car wreck?” Cindy responded, “Well, no, not from a car wreck. From a fist.” Cindy further responded that her injury was a result of the assault on July 28th. Appellant’s counsel waived error in the admission of this testimony because he failed to object to it. See Tex. R. App. P. 33.1(a)(1).
Statement #2
Appellant’s counsel asked, “And did [appellant move out] voluntarily?” Cindy responded, “Well I told him that it was either that or I would call the cops from him beating me up. I was beat up on [the day he moved out] as well.” Appellant’s counsel failed to object. Accordingly, because he failed to make the proper objection, appellant’s counsel waived any error in the admission of this testimony. See id.
Statement #3
Cindy testified that she and appellant had argued on July 26th, but “he didn’t beat me that day.” Here, appellant’s counsel failed to object to this testimony as an extraneous offense. As a result, appellant’s counsel waived error and presents nothing for review on appeal. See id.
Statement #4
Finally, appellant’s counsel asked, “Well, wouldn’t you think that out in front of your house would be safer for you, than you would be in your house?” Cindy replied, “Well, he’s beaten me up at Astroworld before, so I would say ‘no’ to that.” Appellant’s counsel objected, “Well, your Honor, I’m going to object to that. That’s not before the Court.” The trial court sustained the objection. To preserve error, an objection must be timely, specific, and pursued to an adverse ruling. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). Because appellant did not obtain an adverse ruling on his objection, he did not preserve his point of error on appeal. See Tex. R. App. P. 33.1. Accordingly, we overrule appellant’s sole point of error.Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.4.