Opinion issued December 17, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00037-CR
WILLIAM EARL JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 45830
MEMORANDUM OPINION
A jury convicted appellant, William Earl Jones, of aggravated robbery and sentenced him to 30 years’ confinement. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). Jones had confessed to robbery, and the issue at trial concerned whether he had used or exhibited a deadly weapon so as to enhance the offense to aggravated robbery. On appeal, Jones argues for reversal because: (1) the prosecutor improperly displayed the knife to the complainant and discussed it with him during a break in the complainant’s live trial testimony; (2) the evidence is legally and factually insufficient; and (3) the trial court erred by permitting the State to introduce evidence of Jones’s unadjudicated extraneous offenses.
We affirm.
Background
Just before 3:00 a.m. on December 21, 2006, Harrison Le drove to his house in Fort Bend County. He noticed that a white car was following him, and he became suspicious. Le drove around the block and stopped his car down the street from his house. Shador Jenkins was driving the car following Le, and Jones was in the passenger seat. Jenkins pulled his white sedan parallel to Le’s car. Jones got out of the car, opened Le’s door, punched Le in the face, and demanded money. Le refused and fought back for approximately ten minutes, while Jenkins and Jones punched Le and hit him in the head with a hammer or mallet. Le testified that Jones tried to stab him with a knife but missed.
Le drove home and called the police, who broadcasted an advisory that officers should “be on the lookout” for a white sedan with a partial license plate of G-4-5 carrying two black men wearing dark clothing. Tiffany Cortez, an in-uniform, off-duty Fort Bend County Sheriff’s deputy, heard the alert on her radio. At the time, Cortez was close to the scene of the robbery, patrolling a subdivision as a private security officer. Within approximately fifteen minutes of the “be on the lookout” alert, Cortez saw a white sedan with a license plate number that included “G” and “4” in the first three places. She followed the car in her unmarked, personal truck. Two black men wearing dark clothing got out of the car. Deputy Cortez asked them to sit on the curb, as she waited for backup to arrive. She noticed that one of the men had a cut on his hand and blood on his shoe. Jenkins and Jones identified themselves to Cortez. After additional law enforcement officers arrived, they obtained consent to search the car. The officers found Le’s driver’s license, social security card, credit card, wallet (with four dollars), and a “butterfly” or switchblade knife on the passenger side of the car. They found two mallets and Le’s toolbelt in the trunk.
The sheriff’s deputies arrested Jones and took him into custody. After advising Jones of his rights, the deputies questioned him about the aggravated robbery. During the interview, Jones confessed to robbing Le but denied using a knife or any other weapon during the robbery.
At trial, the State introduced photographs showing the evidence found in Jenkins’s car, the switchblade knife, and Jones’s written confession. Jones did not object to the admission of any of this evidence, including the knife. Jones’s written confession stated:
On December 21, 2006, Shador Jenkins picked me up at my house. I have known Shador since July of this year. We were just planning on riding around. The only weapon I had brought [sic] switch blade knife. But we each had a hammer mallet. Shador and I spotted this Asian guy about the same time. He was driving [sic] white small car. It may have been a Honda, an old school model. We decided to trail him. Trail means we wanted to get him, to take his money. I think the Asian guy knew we were behind him. He disappeared for a minute. I had a bad feeling but the guy turned back up. We followed him into a neighbor hood [sic] and he pulled up to a house. Shador pulled up next to the Asian guy and I met him before he could get out of the car. I told the guy to give me his money. The Asian guy was arguing saying he didn’t have anything. He even tried to drive-off by putting the key in the ignition, but I was right there, I was too quick. I got the key from the guy and put it on the outside of the windshield or on the ground, I don’t remember which. We started fighting with each other. The Asian guy was throwing punches as well. I guess the guy had pride. I yelled back for Shador to help me. I did grab a white tool belt and through [sic] it back to Shador. I believe it may have cut Shador’s hand. Shador came around and while the Asian guy worried with me Shador got his wallet. This is when we got in to leave.
The Asian guy tried to hold my door but he had to let go when we moved. I then saw the Asian guy trying to get our plate number. We left and got lost. I did throw the guys [sic] cell phone and wallet out the window of Jenkins’ [sic] car. I can show the detectives where I did that. We saw a truck following us. We didn’t know it was a lawman. We put the hammers and some of the stuff from the robbery in the trunk of our car. I didn’t hit the Asian guy with anything but my fist. I did have the hammer but I didn’t need it. I don’t think Shador had the hammer when we were robbing the guy.
Le testified through a translator. He identified Jones as one of the robbers. He said that the robbers hit him in the head with a hammer, punched him with their fists, and knocked out one of his teeth. He testified that Jones also tried to stab him. Le said that the robbers stole his tool belt (containing a screwdriver and a pair of cutters), his cell phone, and his wallet holding approximately four dollars.
Le repeatedly testified that he saw a knife. Le described the knife as “bright steel” and shiny. He said that Jones tried to stab him but missed. He said that he felt threatened and that he feared for his life. Le testified that he could not recall some details of the crime because he “was in pain.”
Le’s testimony began one afternoon and continued the next morning. Before Le testified the second day, Jones asked to speak directly to the trial court. Jones informed the trial court that he saw the prosecutor speak to Le during a break the previous day. Jones accused the prosecutor of misconduct by showing Le the knife that had already been introduced into evidence without objection. Jones accused the prosecutor of “misleading [Le] to believe that this was the weapon used in my case.” The trial court informed Jones that both the State and Jones’s lawyer were permitted to talk to Le. The trial court also noted that Jones’s own lawyer could question Le about the knife. On cross-examination, Le reiterated that he saw a knife, but not the handle, and that he could not positively identify the knife in evidence as the knife which Jones used in the robbery.
After Le’s testimony, Jones moved for a directed verdict, which the trial court denied. Jones’s attorney argued that in light of the prosecutor’s off-the-record conversation with Le, Jones wanted to oppose the prior admission of the knife into evidence. Jones’s attorney stated, “I’m arguing now that you should at least tell the jury that they’re not to consider this particular knife, to strike it and not allow them to consider it as an example of the type of knife that might have been used.” The trial court denied Jones’s motion to strike the knife from evidence.
Although the State had already offered Jones’s written confession into evidence, as part of his defense case Jones elected to introduce the videotaped interview. This decision was consistent with Jones’s apparent trial strategy to show himself as forthcoming and honest by confessing to the robbery but denying that it was an aggravated robbery. In the videotaped interview, Jones denied using a knife, stating:
No, I ain’t got a knife. That’s what—I don’t know how he—he thought I had a knife, for some reason, but I had—I did have a switchblade, though. But I ain’t had a knife at the time, because he was like forcing—he wasn’t trying to doing nothing. He wasn’t doing nothing. So, when I came up time to him, I just came up to him with me, aggressive.
Jones also denied striking Le with anything other than his fists, saying, “I didn’t even use the hammer. I used my hand alone,” and “I didn’t hit him with a mallet. I hit him with straight fist, all fist.” Jones said that after the robbery, he and Jenkins stopped and put the mallets in the trunk of the car.
In the interview, Jones admitted to the deputies that he had a prior theft conviction and five outstanding warrants related to a traffic violation, but he denied any other trouble with the law. “Just I got a theft one time. . . . That’s basically all the trouble I’ve been in. I got into theft, and I get into fights. I get into fights a lot. That’s basically it. But I cooled down on the fights.” In particular, Jones said he had never robbed anyone before, “No, I never robbed nobody.” He said he respected the way that Le fought back, “Yeah, I respect it. I respect it. I ain’t never—I ain’t never done it before, so I—I didn’t know what to expect, actually, but I wasn’t expecting that . . . .”
Jones also asserted several times over the course of the interview that he was telling the truth. “I got to be truthful, you know. . . . To process quicker. It’s quicker and . . . I got a better chance—I got a better chance of getting less time if I tell the truth.” “I got to think about my future. I’d rather sit my time out and learn my lesson, to really learn my lesson, get out and know what not to do, you know.” “Got to tell the truth so I can . . . saves time.” “Then you got to worry about, you know what I’m saying, coming back with a different story. If you lie, you got to come back with a different story. You might mess around. It’s on notes, you know what I’m saying?”
Immediately after the defense played the videotape for the jury, the State informed Jones and the trial court that it intended to offer rebuttal evidence to correct the false impression left by the videotape in which Jones said that he had never before done anything like this robbery. The State informed the trial court that it intended to offer two witnesses who would testify that Jones had been indicted for two similar robberies that occurred in Harris County days before the aggravated robbery of Le. After considering the arguments of counsel, the trial court ruled that it would allow the State to introduce evidence of extraneous offenses to rebut the false impression left by the videotape.
Immediately after the trial court’s ruling, Jones testified. On direct examination, Jones testified that he watched the videotape and stood by his statement that he had never before “done anything like this.” He admitted that he had “scrapes and brushes” with the law, but he was vague as to the nature and extent of his criminal history.
On cross-examination, Jones admitted that he had previously been in trouble with the law and that he had been a member of the Bloods “organization.” He testified that he had never robbed anyone with a knife before or committed a robbery at all. He testified that the knife found in the car and admitted into evidence was his and that he knew it was illegal to possess a switchblade knife. When he gave inconsistent answers about whether the switchblade was in his pocket, he asserted that he was confused but truthful, “I had no reason to lie about that.”
The trial court permitted the State to impeach Jones by questioning him about the Harris County robbery indictments. Jones admitted that he was aware of the charges against him.
Admission of Knife Evidence
In his first issue, Jones contends that it was improper for a prosecutor to show an item in evidence to a witness during a break in his ongoing trial testimony if the purpose was to permit the witness to describe it on the witness stand in later testimony. Jones argues that the trial court should have ordered a mistrial. Alternatively, Jones argues that the trial court should have struck from evidence the knife and Le’s testimony about the knife and that the jury should have been instructed to disregard that evidence.*
Mistrial
After Le’s testimony, Jones moved for a directed verdict of not guilty, which the trial court denied. Jones did not move for a mistrial. To preserve a complaint for appellate review, a defendant must make a timely, specific objection to the trial court. Tex. R. App. P. 33.1(a); see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection stating one legal basis may not be used to support a different legal theory on appeal. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). A complaint on appeal that does not comport with an objection made at trial does not preserve appellate review of the complaint. Wilson, 71 S.W.3d at 349; Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996); Flores v. State, 125 S.W.3d 744, 746–47 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Accordingly, because Jones failed to move for a mistrial, he has not preserved any complaint about the trial court’s failure to grant a mistrial.
Motion to Strike Evidence and for Limiting Instruction to Jury
Jones also argues that the trial court should have struck the knife evidence and instructed the jury to disregard it. In this regard, Jones contends that the prosecutor behaved improperly by showing the knife to Le and discussing it with him during a break in his testimony. Jones also alleges that the State led Le to commit perjury in his testimony about the knife that had previously been admitted into evidence without objection. On cross-examination, Jones’s lawyer asked Le about the knife, but Le could not positively identify it as the specific knife that Jones used in the robbery:
Q. But you never identified this knife. That’s accurate, isn’t it?
A. I said I saw the knife when they attacked me, but I did not say that I saw that knife, because I didn’t remember the handle.
On redirect examination, the State also sought clarification:
Q. Okay. And you’re not telling this jury that this is the exact knife, just that the blade is similar?
A. Correct.
. . .
Q. So, we don’t know, because you didn’t see this handle, whether this is the exact knife?
A. Correct.
Q. But you are positive that you saw a knife?
A. Correct.
After Le’s testimony, Jones moved to strike the knife from evidence and asked the trial court to instruct the jury not to consider it. The trial court denied Jones’s motion to strike the knife and so instruct the jury.
As a preliminary matter, we note that Jones has not established any prosecutorial misconduct. Article 36.06 of the Code of Criminal Procedure, which codifies “The Rule” as applied in criminal trials, provides:
Witnesses, when placed under rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under rule. The officer who attends the witnesses shall report to the court at once any violation of its instructions, and the party violating the same shall be punished for contempt of court.
Tex. Code Crim. Proc. Ann. art. 36.06 (Vernon 2007). The text of The Rule as codified generally prevents attorneys from conversing with witnesses about the case once The Rule has been invoked, but that restriction is expressly qualified to except communications that occur “by permission of the court.” Id. The record in this case reflects that the attorneys had the permission of the trial court to speak to the witnesses, as reflected by the trial judge’s response to Jones, upon hearing Jones’s allegations about the communication, in which the trial court stated:
The prosecution certainly has the right to talk to these witnesses to see what they have to say and to know what evidence to put on during the trial . . . . And your lawyer has the right to talk to these witnesses, too, to find out what they have to say. So there’s nothing wrong with that.
In any case, the trial court did not err in declining to strike the previously admitted evidence of the knife and Le’s testimony about the knife. We review a trial court’s ruling on the admission of evidence for abuse of discretion. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). We “must uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case.” Id.
The knife itself was relevant evidence. See Tex. R. Evid. 402. The knife was admitted into evidence before Le testified, through the testimony of a law enforcement officer who testified that it was found in Jenkins’s car, on the passenger side where Jones had been riding, near Le’s driver’s license. A photograph showed the exact location where the knife was found. Jones did not object to the admission of the knife into evidence or request a limiting instruction at that time. Likewise, Le’s testimony about the knife was relevant evidence, and it too was admitted without any contemporaneous objection.
The Rules of Evidence permit a limiting instruction to be requested when a trial court admits evidence, which is admissible for one purpose but not admissible for another. Tex. R. Evid. 105(a). However, a request for a limiting instruction must be made at the introduction of the evidence. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001); see Tex. R. Evid. 105. When a defendant does not request a limiting instruction at the first opportunity, the evidence is admitted for all purposes. See Hammock, 46 S.W.3d at 895. Once evidence is admitted for all purposes, a trial court need not issue a limiting instruction to the jury regarding that evidence. Id.
We hold that the trial court did not abuse its discretion by refusing to strike from evidence the knife or Le’s testimony about the knife. Because the evidence was properly admitted, relevant evidence, the trial court did not err by refusing Jones’s request for a limiting instruction. Id.
We overrule Jones’s first issue.
Legal and Factual Sufficiency
In his second issue, Jones challenges the legal and factual sufficiency of the evidence.
Legal Sufficiency Standard
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
Factual Sufficiency Standard
In a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
In reviewing the factual sufficiency of the evidence, appellate courts should afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record. Id. The jury may choose to believe some testimony and disbelieve other testimony. Id. at 707.
Aggravated Robbery
A person commits aggravated robbery when he commits robbery and he causes serious bodily injury to another, or uses or exhibits a deadly weapon. See Tex. Penal Code Ann. § 29.03. A deadly weapon is:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2009). A knife can be found to be a deadly weapon based on the nature of its use or intended use. Id. § 1.07(a)(17)(B); Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Objects used to threaten deadly force are deadly weapons, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Evidence that a knife is displayed in a manner conveying a threat that serious bodily injury or death will be inflicted is sufficient to establish use or exhibition of a deadly weapon. Billey v. State, 895 S.W.2d 417, 422 (Tex. App.—Amarillo 1995, pet. ref’d). By producing the knife and exhibiting its blade, even if only in part, a defendant can achieve his desired effect of placing a person in fear of death or serious bodily injury. Id. at 422–23.
Discussion
Jones argues that if the trial court had suppressed the knife from evidence, the remaining evidence would have been insufficient to support his aggravated robbery conviction. However, in conducting a legal sufficiency review, we “must evaluate all of the evidence in the record, both direct and indirect, whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
Jones confessed to robbing Le. Several law enforcement officers testified that a knife could be a deadly weapon. Le testified that his attackers had a knife and that Jones tried to stab him. Although he denied using a knife in the robbery, Jones admitted ownership of the switchblade knife found in Jenkins’s car near Le’s wallet and driver’s license. Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found beyond a reasonable doubt that Jones used or exhibited a knife while robbing Le, and it was therefore legally sufficient to support Jones’s conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798. Viewing the evidence in a neutral light, we hold that the evidence is neither so weak that the verdict is clearly wrong and manifestly unjust nor against the great weight and preponderance of the evidence, and it was therefore factually sufficient to support the conviction. Johnson, 23 S.W.3d at 11.
We overrule Jones’s second issue.
Extraneous Offense Evidence
In his third through sixth issues, Jones challenges whether the videotape was testimony such that the State could rebut it with prior unadjudicated extraneous offenses. Jones argues that the videotaped confession was not testimony and, therefore, not susceptible to challenge by way of rebuttal evidence. Moreover, Jones argues that his trial testimony on direct examination corrected any alleged false impression left by the videotape about his criminal history. Having clarified that issue on direct examination, Jones argues that the State was not entitled to introduce evidence of the Harris County crimes. The trial court disagreed, reasoning that Jones’s statements that he had never before robbed anyone, that he had not used a knife, and that his criminal history was limited to the theft and the traffic-related warrants created a false impression that he had never committed or been accused of committing robbery.
Preservation of Error
To preserve a complaint for appellate review, a defendant must make a timely, specific objection to the trial court. Tex. R. App. P. 33.1(a); see Wilson, 71 S.W.3d at 349. An objection stating one legal basis may not be used to support a different legal theory on appeal. See Heidelberg, 144 S.W.3d at 537. A complaint on appeal that does not comport with an objection made at trial does not preserve appellate review of the complaint. Wilson, 71 S.W.3d at 349; Goff, 931 S.W.2d at 551; Flores v. State, 125 S.W.3d at 746–47.
On appeal, Jones argues that the trial court abused its discretion in permitting the State to cross-examine Jones about whether he was aware of the pending Harris County charges against him. In four issues, he argues that this was improper based on Texas Rules of Evidence 401 to 405 and 607 to 609. After introduction of the videotape, the State announced its intention to offer rebuttal evidence, and Jones argued in opposition to that, but he never objected to the State’s cross-examination of Jones about extraneous offenses. Jones testified, and the State cross-examined Jones about the Harris County cases:
Q. Well, tell the ladies and gentlemen of the jury what kind of problems you’ve got in Harris County right now.
A. In Harris County?
DEFENSE ATTORNEY: Objection, Your Honor. Could we approach?
JONES: No, I’ll answer the question.
DEFENSE ATTORNEY: I have an objection.
(Bench conference)
DEFENSE ATTORNEY: I think we need to bring the jury out so I can talk a little louder.
TRIAL COURT: Why?
DEFENSE ATTORNEY: Well, I’m moving for a mistrial . . . .
The parties then argued about whether the State was entitled to present rebuttal evidence and to what extent and in what manner the State could impeach Jones. Near the end of the parties’ arguments, Jones’s attorney stated:
. . . [I]f he’s not guilty of either of those crimes in Harris County, that would explain his statement that “I’ve never done anything like this before,” because if he didn’t do those other two, this is his first time. We’re all assuming that he’s lying.
So, I think it would be enough for him to say that he realizes he’s been charged in Harris County with robbery involving a mallet that occurred prior to this, the case is still pending. I don’t know what more he’d want to say.
(Emphasis supplied.)
The trial court ruled that the State could ask Jones about the charges against him. The State cross-examined Jones about the Harris County robberies without further objection as follows:
Q. Mr. Jones, despite what you have been telling the jury for the last hour and a half or two hours, is it not true that you currently have pending in Harris County, Texas, not one, but two aggravated robberies against you, sir?
A. It’s true.
Q. And the first one is Cause No. 1098277 out of the 263rd District Court?
A. I read that’s true.
Q. In that particular case, you are alleged to have on December the 19th, 2006, two days before this alleged offense, to have made an aggravated assault on a victim named Billie Murski, using a deadly weapon, to-wit, a hammer. Is that not true, sir?
A. It’s true.
Q. Also, sir, you have a second aggravated robbery offense pending in Harris County, Texas, in Cause No. 1097927 out of the 263rd District Court as well. Is that correct?
A. That’s true.
Q. That’s also for another offense dated December the 19th, 2006, again, two days before this particular offense. Is that true?
A. That’s true.
Q. In that particular case, a victim named Erick Perez, alleged to have been assaulted with a deadly weapon, to-wit, a sledge hammer. Is that true, sir?
A. That’s true.
Q. Three aggravated robberies, three hammers. Does that seem a little bit coincidental to you?
A. Well, it’s kind of—you said three aggravated robberies, three hammers?
Q. Yes, sir.
A. Well—
Q. You heard the victim say—
A. It’s two aggravated robberies with actually two different hammers. I think you said with a sledge hammer.
Q. A sledge hammer is alleged in Cause No. ’927, yes, sir.
A. The second case you brought up?
Q. The case ending in 277 is hammer.
A. A hammer. Not a mallet, a hammer?
Q. It says a hammer.
A. Okay. And the second one is a sledge hammer.
Q. One sledge hammer, one hammer, and in this case the victim described a mallet being used, or a rubber hammer.
A. I understand it.
Q. Does that seem more than just mere coincidence to you?
A. Yeah—no, it don’t. It seems—
Q. It’s just that, it’s just a coincidence?
A. Yeah, it’s a coincidence. Somebody had it.
There were no further objections, and the trial court did not rule on Jones’s motion for mistrial. On appeal, in four issues, Jones challenges the admission of this evidence. We find in the record, however, no timely and specific objection to the questions posed by the State. Furthermore, Jones’s attorney essentially waived any challenge to the questions posed by the State by conceding that “it would be enough for him to say that he realizes he’s been charged in Harris County with robbery involving a mallet that occurred prior to this.” We hold that Jones waived these evidentiary challenges by failing to make a timely, specific objection at trial that comports with his arguments on appeal and to obtain a ruling from the trial court. See Tex. R. App. P. 33.1(a); see Wilson, 71 S.W.3d at 349.
We overrule issues three through six.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. Tex. R. App. P. 47.2(b)
* At trial, Jones moved to strike the knife evidence, and the trial court denied the motion to strike. In his appellate brief, Jones refers to a “motion to suppress,” and argues that the knife evidence should have been “suppressed.” Black’s Law Dictionary distinguishes a “motion to strike” (“[a] request that inadmissible evidence be deleted from the record and that the jury be instructed to disregard it”) from a “motion to suppress” (“[a] request that the court prohibit the introduction of illegally obtained evidence at a criminal trial”). Black’s Law Dictionary 1110 (9th ed. 2009). Accepting these definitions, a “motion to strike” is not only what Jones actually offered at trial, but it also better describes the procedural posture at the time of the motion. We construe Jones’s argument on appeal to be that the trial court erred by failing to strike the knife evidence, which had previously been admitted without objection. To the extent that anything different is intended by Jones’s references to a “motion to suppress,” that argument has been waived because no motion to suppress was made in the trial court. See Tex. R. App. P. 33.1(a).