IN THE
TENTH COURT OF APPEALS
No. 10-02-253-CR
BRENT KENNETH REED,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 2001-482-C
MEMORANDUM OPINION
After a jury trial, Brent Kenneth Reed was convicted of theft of property valued less than $1,500. The offense was enhanced to a state jail felony because of Reed’s two prior theft convictions. Reed was sentenced to two years’ confinement in the Texas Department of Criminal Justice–Institutional Division and fined four thousand dollars. He brings two issues on appeal: (1) that the court erred in allowing the State to tell the venire panel that Reed had two prior convictions for theft, and (2) that the court erred in refusing to allow Reed to introduce evidence implicating another person in an extraneous offense that was attributed to Reed. Because we find that Reed waived his complaint regarding voir dire and that the court did not abuse its discretion in excluding evidence, we will affirm.
BACKGROUND
Reed’s indictment centers on the disposition of a mountain bike that Reed received from James Van Winkle, who had hired Reed to do odd jobs. Van Winkle testified that he loaned the bike to Reed; Reed argued that the bike was a gift. Van Winkle said that when he asked Reed to return the bicycle, Reed told him that it had been stolen. Waco police detective Keith Kellum, who investigated the bicycle’s disappearance, testified that Reed told him the bike belonged to someone named Charlie. At the punishment stage, Reed testified that, believing the bike to be a gift, he had pawned it. Police eventually recovered the bike from a pawn shop. Reed’s aunt, Barbara Hertado, testified for the State, saying that Reed stayed in one of her houses after being released from prison. She said that while he was in possession of the house, some of her belongings stored there went missing. Reed denied taking any of Hertado’s belongings. These items, however, including tools, ladders, antique glass, and antique dolls, were never recovered. At punishment, the State introduced exhibits showing that Reed had previously been convicted of burglary of a habitation and possession of drug paraphernalia.
VOIR DIRE COMMENT
In his first issue, Reed argues that the trial court erred in allowing the prosecutor to advise jurors during voir dire that Reed had twice before been convicted of theft offenses. Specifically, Reed complains of the following interchange, which took place during voir dire, in the presence and hearing of the venire panel.
PROSECUTOR: The elements of this offense allege that it happened on or about August 5th of 2000, that it happened here in McLennan County, Texas, which gives this Court jurisdiction over the case. That Brent Kenneth Reed, the defendant, intentionally appropriated by acquiring, or otherwise exercising control over property, to-wit: a bicycle in this case, valued at under $1,500.00, and that the defendant had two prior theft convictions, from the owner, James Van Winkle, who you heard mentioned earlier, without the effective consent of Mr. Van Winkle, and with the intent to deprive—
DEFENSE ATTORNEY: I am going to object. [The prosecutor] said that Mr. Reed had two prior convictions from Mr. Van Winkle, I think the panel may have misunderstood that.
PROSECUTOR: I think I said, your Honor, that Mr. Van Winkle was the victim in the case, that he would be the one whose consent was required, and who was deprived of his property.
COURT: Overrule the objection.
PROSECUTOR: Is that more clear on who the victims are, and who the alleged suspect is, the defendant. That the defendant having had two prior theft convictions deprived Mr. Van Winkle the benefit of owning the bicycle, the benefit of having it in his possession, without Mr. Van Winkle’s consent . . . .
Reed did not reurge his objection after the prosecutor restated the element of the offense involving his two prior convictions. See Tex. Pen. Code Ann. § 31.03(e)(4)(D) (Vernon 2003).
As a prerequisite to preserving a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of . . . Criminal Evidence or the Texas Rules of . . . Appellate Procedure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Tex. R. App. P. 33.1. The Court of Criminal Appeals has recently reiterated the two policy reasons for requiring specific objections. Aldrich v. State, 104 S.W.3d 890, 894 (Tex. Crim. App. 2003). A specific objection is required to inform the trial judge of the basis of the objection and to afford an opportunity to rule on it. Id. A specific objection is also required to give opposing counsel an opportunity to remove the objection. Id. Moreover, the issue on appeal must correspond to the objection at trial; that is, an objection stating one legal theory may not be used to support a different legal theory on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
Reed objected to the prosecutor’s phrasing, which he believed suggested that Reed had stolen from Van Winkle twice before. On appeal, however, he complains about any mention of his prior theft convictions, an objection that was not raised at trial. Because his appellate issue does not comport with his objection at trial, nothing is preserved for our review. Tex. R. App. P. 33.1; Broxton, 909 S.W.2d at 918. We overrule Reed’s first issue.
EXCLUSION OF EVIDENCE
Reed also challenges the court’s exclusion of certain evidence that Reed contends would have implicated another person in the commission of an extraneous offense. Specifically, during the punishment phase, Reed’s aunt testified that a number of her belongings disappeared from her house while Reed was staying there. Reed wanted to ask her when her son, who also had lived at the house, was released from jail. The court sustained the State’s objection to this question.
We review a trial court’s ruling regarding the admissibility of evidence for abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will uphold the trial court’s ruling if it was within the zone of reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Questions of relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993) (citing Montgomery, 810 S.W.2d at 391.).
Reed argues that the question was relevant to the issue of punishment, because it would have established that someone else had an opportunity to take the missing items. The State, on the other hand, argues that this question was properly excluded because it was speculative and an improper attempt to impeach Hertado’s credibility based on her son’s prison record. In addition, the State suggested other questions that could have been asked to elicit the sought-after information. Finally, the State noted at oral argument that Reed did not lay an adequate predicate before asking this particular question.
Although it may have been relevant to establish that somebody else had access to the objects that went missing from Hertado’s house, we believe that the court’s ruling on the particular questions asked and sought-to-be asked was within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542. Accordingly, we overrule Reed’s second issue.
CONCLUSION
Having overruled both of Reed’s issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed July 23, 2003
Do not publish
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