Opinion by: Sarah B. Duncan, Justice
Sitting: Tom Rickhoff, Justice
Catherine Stone, Justice
Sarah B. Duncan, Justice
Delivered and Filed: September 19, 2001
AFFIRMED
Connie Robinson was charged with and convicted of the offense of unlawful possession of a firearm by a felon and sentenced to ninety-nine years in the Texas Department of Criminal Justice - Institutional Division. He appeals. We affirm the trial court's judgment.
On December 5, 1998, while Robinson was beating Nisha Spikes in Myrtle Edwards' living room, Edwards called 911 and then hung up. Officers Vega and Heinrich responded to the call. When they arrived, Edwards and Spikes were in the living room, while Robinson was just inside the adjoining kitchen. Robinson was taken outside to be questioned by Officer Heinrich, while Spikes was questioned inside by Officer Vega. Spikes told Vega that Robinson had removed a handgun from his waistband and placed it in a pizza box on the stove. The responding officer retrieved the gun. Robinson denied the gun was his. No fingerprints were recovered.
Robinson, a convicted felon, was charged with unlawful possession of a firearm by a felon. After the jury found him guilty, he was sentenced to ninety-nine years in the Texas Department of Criminal Justice - Institutional Division.
Robinson first complains that the trial court committed reversible error in failing to charge the jury that it could not consider extraneous offense evidence that Robinson had stolen a gun unless the extraneous offense had been proved beyond a reasonable doubt. (1) We disagree. The trial court instructed the jury that it could not consider the extraneous offense evidence "in any manner, in proving or tending to prove that the defendant was in possession of a firearm on or about the 5th day of December, A.D., 1998." Moreover, when asked whether this was the instruction he wanted, defense counsel stated it was. Under these circumstances, Robinson has waived the error, if any.
Robinson next complains that the trial court committed reversible error in admitting evidence of an extraneous offense. We again disagree. As noted above, the trial court instructed the jury that it could not consider the extraneous offense evidence in deciding whether Robinson committed the offense with which he was charged. Under these circumstances, Robinson has not demonstrated reversible error.
Robinson next complains that the trial court committed reversible error in excluding evidence that (1) Myrtle Edwards was under deferred adjudication community supervision at the time she testified, and (2) she had romantic feelings towards Robinson. We disagree.
We review a trial court's evidentiary rulings under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990). A trial court does not abuse its discretion if its ruling is "at least within the zone of reasonable disagreement." Id. at 391.
To establish the predicate necessary to inquire about a witness's deferred adjudication status, a defendant must demonstrate the witness has testified against him "as a result of bias, motive or ill will emanating from his status of deferred adjudication." Callins v. State, 780 S.W.2d 176, 196 (Tex. Crim. App. 1986), cert. denied, 497 U.S. 1011 (1990). Thus, if the State promises an early termination of a witness's probation in exchange for her favorable testimony, her probationary status may be inquired about on cross-examination. Paley v. State, 811 S.W.2d 226, 229 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd). See also Soliz v. State, 809 S.W.2d 257, 258 (Tex. App.-San Antonio 1991, pet. ref'd). That is not the case here. Rather, Robinson argues Edwards' status was relevant because her possession of a firearm would be a violation of the terms of her probation; therefore, to avoid revocation of her probation, she testified Robinson was in possession of a firearm. To afford Robinson an opportunity to establish bias or prejudice, the trial court permitted Robinson to question Edwards outside the jury's presence. As the trial judge pointed out, however, there was no evidence Edwards had received favorable treatment from the State in exchange for her testimony and no evidence "to tie [Edwards] with the gun." Under these circumstances, we hold the trial court acted within its discretion in excluding evidence that Edwards was under deferred adjudication community supervision.
Robinson also complains that the trial court committed reversible error in excluding copies of letters written by Edwards to Robinson while he was in jail. According to Robinson, these letters demonstrate Edwards had romantic feelings towards him and feelings of jealousy towards Spikes and therefore a motive to keep Robinson and Spikes apart by ensuring that Robinson was convicted. We disagree. The trial court permitted defense counsel to question Edwards about the letters and her feelings towards Robinson. Edwards admitted writing and sending the letters but denied having true romantic feelings towards Robinson; she testified Robinson initiated the correspondence to convince her to retract her statement and she wrote back because she was afraid of him. As the trial court stated, to permit defense counsel to go into the actual content of the letters would be impeachment on a collateral matter.
Robinson complains the trial court committed reversible error in excluding his denial of owning the gun. However, his denial was in fact admitted into evidence.
Robinson complains that the trial court committed reversible error when it overruled his objection to the following argument:
You know, if a convicted felon that you have seen assault a woman and that you are afraid of, starts asking you to help him with his case, what are you going to do? I mean if Charles Manson starts writing you and says help me, do you want to tick him off? Is that what you really want to do?
We disagree. Placed in the proper context - Edwards' explanation of her correspondence with Robinson - the State's argument amounts to no more than a hyperbolic summation of the evidence. See Green v. State, 876 S.W.2d 211, 213 (Tex. App.-Beaumont 1994, no pet.).
Robinson complains that the trial court committed reversible error by permitting the State to make "repeated arguments that [Robinson] was a murderer." We disagree. In the first place, the State did not make repeated arguments that Robinson was a murderer. "Murder" was used only twice in the State's argument. The first time defense counsel did not object. (2) The second time defense counsel objected and requested an instruction to disregard, which the trial court gave. Nothing is preserved for review when the defendant fails to pursue his improper jury argument objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997).
Robinson complains that the trial court committed reversible error in admitting Officer Vega's hearsay testimony regarding Spikes' statements. However, these statements were clearly admissible as excited utterances under Texas Rule of Evidence 803(2). See Tejeda v. State, 905 S.W.2d 313, 316 (Tex. App.-San Antonio 1995, pet. ref'd).
The judgment is affirmed.
Sarah B. Duncan, Justice
Do not publish
1. The State proved that the gun recovered from Edwards' house had been stolen from a convenience store located within two miles of Robinson's home. However, as the trial judge noted, there was no evidence Robinson had stolen the gun.
2. In responding to defense counsel's argument that Nisha Spikes had not testified, the State argued:
All right. There's two witnesses to a murder and we can't find one. Well, I guess we're just never going to try the case. Criminals are going to walk free. That's going to be the new policy of the District Attorney's Office. How do you like it?