AFFIRM; and Opinion Filed October 30, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01541-CR
JERAMIE LEON HORTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2011-1-0370
MEMORANDUM OPINION
Before Justices FitzGerald, Fillmore, and Stoddart
Opinion by Justice Fillmore
Appellant Jeramie Leon Horton appeals from the revocation of his community
supervision. In a single issue, Horton contends the trial court erred by permitting testimony of a
witness at the revocation hearing. We affirm the trial court’s judgment.
Background
Horton pleaded guilty to, and on June 13, 2011 was convicted of, the Class B
misdemeanor offense of driving while intoxicated (DWI). He was sentenced to 180 days’
confinement and a $500 fine; his sentence was suspended, and he was placed on community
supervision for a period of eighteen months. See TEX. PENAL CODE ANN. § 12.22(2) (West
2011) (individual adjudged guilty of Class B misdemeanor shall be punished by fine not to
exceed $2,000, confinement not to exceed 180 days, or both such fine and confinement). The
State later moved to revoke Horton’s community supervision, alleging Horton violated the
provision of his community supervision that he “shall commit no offense against the law of this
State or any other State or the United States.” In its petition for revocation, the State alleged that
on or about December 7, 2012 in Fannin County, Texas, Horton committed the offense of
purchase of alcohol for a minor.
At the revocation hearing, the August 21, 2013 judgment of Horton’s conviction for the
misdemeanor offense of “purchase furnish alcohol to a minor” in Case No. 46790, County Court
at Law, Fannin County, Texas, was admitted in evidence. See TEX. ALCO. BEV. CODE ANN.
§ 106.06(a) (West Supp. 2013). 1 After Horton pleaded true to the allegation that he committed
the offense of purchase of alcohol for a minor while he was on community supervision for the
DWI offense, Tamberly Robinson was called as a witness on punishment by the State. Robinson
testified that she was familiar with Case No. 46790 and with Thomas Calame, the minor for
whom Horton purchased beer and vodka as alleged in the Information in that case. Thomas
Calame was Robinson’s son. Robinson testified that “[T]he minor that the alcohol was bought
for on December the 7th, one of them was my son and he is dead now.” Horton’s attorney made
the following objection that was overruled by the trial court:
Judge, I’m going to object to any further testimony from this witness on the
grounds that it is not admissible under [article] 37.07 [of the code of criminal
procedure]. It is not admissible under Chapter 56 of the Code of Criminal
Procedure. And it is going to be given, I suspect, a [sic] violation of the 8th
Amendment to the Constitution of the United States under Payne v. Tennessee,
501 U.S. 808.
At the conclusion of the revocation hearing, the trial court found Horton violated the terms and
conditions of his community supervision, revoked his community supervision, and sentenced
him to 180 days’ confinement.
1
The judgment of conviction indicates the date of the offense was December 11, 2012; the State’s petition for revocation asserts the offense
occurred on or about December 7, 2012. According to the judgment, Horton pleaded guilty to the offense and was assessed punishment of ninety
days’ confinement in county jail, court costs, and restitution of $60 payable to the Texas Department of Public Safety Crime Lab. The Plea
Agreement entered into evidence at the revocation hearing reflects Horton would plead “no contest” to the offense.
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On appeal, Horton contends the trial court erred by “admitting and considering”
Robinson’s testimony relating to the death of Calame and its impact on her. Horton asserts that
the testimony was evidence of an extraneous crime or bad act, and article 37.07(a)(1) of the code
of criminal procedure requires proof beyond a reasonable doubt the accused committed the
extraneous offense or bad act before such evidence may be admitted and considered as
punishment evidence. According to Horton, there is no evidence showing Horton committed the
“extraneous matters about which Mrs. Robinson testified beyond a reasonable doubt.” Horton
also argues that Robinson’s testimony was not a “victim impact statement” within the meaning
of articles 42.03 and 56.01(3) of the code of criminal procedure because Calame was not a victim
of the DWI offense before the court at the revocation hearing.
To preserve a complaint for appellate review, a party must make a timely and specific
request, objection, or motion with sufficient specificity to apprise the trial court of the complaint.
TEX. R. APP. P. 33.1(a). An objection must be made each time the potentially inadmissible
evidence is offered unless a party obtains a running objection or requests a hearing outside the
presence of a jury. See Haley v. State, 173 S.W.3d 510, 516–17 (Tex. Crim. App. 2005);
Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Horton failed to preserve his
complaint for appellate review because he did not obtain a running objection to or subsequently
object to Robinson’s testimony regarding Horton’s purchase of alcohol for Calame, the events
surrounding the purchase and consumption of that alcohol by her son, and Horton’s criminal
prosecution for that offense in Fannin County. 2 Following the objection to “any further
2
On appeal, Horton asserts that according to Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003),”[a] trial court’s adverse ruling on
the admissibility of testimony is sufficient to preserve the matter for appellate review without the necessity of repeating the objection each time a
question is thereafter asked about the objected-to testimony.” However, Geuder addressed a trial court hearing outside the presence of the jury
concerning an evidentiary objection and ruling that evidence be admitted. Id. In accordance with rule of evidence 103(a)(1), objections made
outside the presence of the jury “shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating
those objections.” Id. (quoting rule of evidence 103(a)(1)). Horton’s revocation hearing was not conducted before a jury. Horton cites no
authority to support the statement in his reply brief that “[t]he requirement that a party must continue to object each time inadmissible evidence is
offered does not apply in bench trials where the trial court initially overrules a timely objection to the evidence.” See Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998) (trial court’s erroneous admission of evidence will not require reversal when other such evidence was received
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testimony from this witness,” Robinson testified without objection that Calame drank alcohol
and “was foolish enough to get behind the wheel of a car and he killed himself” and the
passenger in his vehicle. She identified Horton as the individual who provided Calame the
alcohol he drank before driving his vehicle and what her life was like since the death of her son.
She confirmed that her testimony in the revocation hearing was similar in substance to what she
told the judge presiding in her victim impact statement in Case No. 46790 in Fannin County.
Horton also testified at the revocation hearing that he purchased alcohol for Calame
believing Calame would drink so much of the alcohol that he would be intoxicated. However,
Horton did not believe Calame would drive a vehicle while he was intoxicated. Although he
acknowledged it is possible that an intoxicated individual may decide to drive a vehicle and as a
result of that decision be involved in a vehicular accident, Horton accepted no responsibility for
anything that took place after he purchased alcohol for Calame.
Because Horton failed to preserve the error he asserts on appeal, and in view of his own
testimony concerning the circumstances leading to the death of Calame, we resolve his sole issue
against him. See TEX. R. APP. P. 33.1(a). We affirm the trial court’s judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
.
Do Not Publish
TEX. R. APP. P. 47
131541F.U05
without objection, either before or after the complained-of ruling); Bartee v. State, Nos. 05-07-01437-CR & 05-07-01438-CR, 2008 WL
4743490, at * 3 (Tex. App.—Dallas Oct. 30, 2008, no pet.) (not designated for publication) (in bench trial, where evidence similar to complained-
of evidence is admitted elsewhere at trial without objection, any error in admitting the complained-of evidence is waived).
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JERAMIE LEON HORTON, Appellant On Appeal from the County Court at Law
No. 1, Grayson County, Texas,
No. 05-13-01541-CR V. Trial Court Cause No. 2011-1-0370.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices FitzGerald and Stoddart
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of October, 2014.
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