AFFIRM; Opinion Filed November 29, 2012
In The
Qlourt of 1ppcaTs
If iftj Itritt of exa at OaUa
No. 05-1 1-00704-CR
No. 05-11-00705-CR
No. 05-11-00706-CR
No. 05-11-00707-CR
LUTHER FITZGERALD STINSON
A/K/A LUTHER FITZGERALI) STINSON, JR., Appellant
V.
TilE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 366-82010-10, 366-82011-10, 366-82777-10, and 366-82
811-10
OPINION
Before Justices O’Neill, FitzGerald. and Lang-Miers
Opinion by Justice FitzGerald
A jury convicted appellant Luther Fitzgerald Stinson’ of three counts of aggrav
ated
robbery and one count of engaging in organized criminal activity. On appeal, appellant
complains of the admission of a witness’s in-court identification testimony during
the first phase
of the trial and of the admission of certain extraneous-offense evidence during
the punishment
phase. We affirm.
Fsso of the judgments 01 Conviction relr to appellant as Luther Fitzgerald
Stson. The other two relr to him as Luther Fitzgerald
Stinson, Jr.
I. I3AcKcRoI’ND
Three separate armed robberies were committed in Collin County between about
midnight and 2 a.m. on August 9, 2010. Each robbery took place in a different apartment—
complex parking lot, and each was committed by two men working together. The robbers fled
the scene of the third robbery on foot, and police investigators found a stolen car nearby with its
doors open and engine running. The investigators found some items that had been stolen during
that night’s robberies inside the abandoned car. Appellant’s palm print was recovered from the
door of the car. The police then obtained a search warrant for an apartment that had been
connected to appellant, and on August II they executed the search warrant. The apartment
manager informed the police that the occupants of the apartment to he searched had been given
access to another apartment in the complex because of a water leak. and the manager gave the
police permission to search the other apartment as well. The police searched both apartments
simultaneously, and appellant was present along with several other people.
After they searched the apartments, the police obtained another search warrant for two
vehicles found outside the apartments, one of which was a Ford Taurus. Some 7-Eleven receipts
bearing the name Dan Edwards were found inside the Ford Taurus. Further investigation
showed that Edwards had been robbed on August 7. and that soon after that robbery appellant
and two other people used Edwards’s credit cards to make purchases at a 7-Eleven a few blocks
from the apartment where the search was performed.
Appellant was indicted for the three robberies and for engaging in organized criminal
activity by using Edwards’s credit card. He pleaded not guilty, and his cases were tried to a jury.
The State called as witnesses not only Edwards and victims of the three robberies that took place
on August 9 hut also another crime victim named Ashley Brown. Brown was the victim of an
attack in Dallas on August 7. the same night Edwards was robbed. Brown was in a car in a hotel
parking lot when a partially masked man approached her side of the car and then shot her in the
leg. She identified appellant as her attacker.
The jury convicted appellant of all four crimes he was charged with. and it assessed
punishment at forty years’ imprisonment on each count of robbery and ten years’ imprisonment
on the count of engaging in organized criminal activity. Appellant timely appealed.
11. ANusis
Appellant brings three points of error. 1-us first two points concern the admission of a
juvenile predisposition report into evidence during the punishment phase of the trial. His third
point concerns the admission of the identification testimony of a witness during the first phase of
the trial. We will address appellant’s third point of error first.
A. Motion for mistrial
Appellant moved for a mistrial at the end of the first day of trial, and the trial judge
denied that motion. The context of that ruling follows. The last witness to testify that day was
Ashley Brown, who was shot during an apparent attempted robbery in Dallas on August 7, 2010.
This attack happened soon after the Edwards robbery. Brown testified that she and a friend were
returning to their hotel late at night. Brown was in the passenger’s seat of their car. When they
parked in the hotel parking lot, another car pulled up close to them. and Brown saw someone get
out of the other car and come up to her window with a gun. The gunman was wearing a bandana
across his nose and was not wearing a hat or cap. Brown testified that the gunman had no hair.
that his ears were slightly pointed, and that she remembered his eyes. The gunman tapped on the
car window, then stepped back and fired his gun, hitting Brown in the leg. She then testified that
she was “[a] hundred percent” certain that she saw her assailant in the courtroom, and she
Proceeded to identi l appellant as her assailant. Appellant did not object to her identification
testimony. The State then continued its direct examination, which takes up about six and a half
pages of reporter’s record. Appellant crossexamined Brown, which takes up about nine pages
of reporter’s record. After a very brief redirect examination. Brown was excused, and the jury
was sent out of the courtroom.
After the jury left the courtroom, appellant moved for a mistrial on the ground that
Brown’s identification of appellant as her attacker was ‘almost a factual impossibility.” He
added that the identification testimony was too prejudicial for the jury to set aside, and that the
testimony justified a mistrial. The State responded that appellant’s complaint went to the weight
and credibility of the evidence and was not grounds for a mistrial. The trial judge denied
appellant’s motion for mistrial, and an appeal, appellant argues that this ruling was error.
Preservation of error is a systemic requirement on appeal, and we should not address
points of error that were not preserved for appeal in the trial court. Wilson v. State, 311 S.W.3d
452. 472 (Tex. Crim. App. 2010) (per curiam) (op. onreh’g); Fordv. Stale, 305 S.W.3d 530. 532
(Tex. Crim. App. 2009). We conclude that appellant failed to preserve his first point of error. If
a defendant fails to object until after an objectionable question has been asked and answered, and
he can show no legitimate reason to justify the delay, his objection is untimely and any error is
forfeited. Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); Lagrone v. State. 942
S.W.2d 602, 618 (Tex. Crirn. App. 1997). In this case, appellant contends that admission of
Brown’s in-court identification of him as her assailant was erroneous. But the State plainly
asked her to make that identification, and appellant has shown no reason for waiting until the
conclusion of her testimony to raise his complaint instead of objecting as soon as the questions
Although the prosecutor did not mafe a statement such as, Let the record reflect that the witness has identified
the defendani the
State does not contest that I3rown adequately identified appellant as the assailant in her testimony.
4
were asked. Accordingly. he did not preserve error. The fact that he raised his complaint by
motion for mistrial instead of by objection does not change the analysis. “A motion for mistrial
is timely only if it is made as soon as the grounds for it become apparent.” Griggs v. State, 213
S.W.3d 923, 927 (Tex. Crim. App. 2007); accord Hamilton v. State. No. 05-09-00294-CR. 2010
WI. 1136524. at *2 (Tex. App.—Dallas Mar. 26, 2010, no pet.) (mem. op., not designated for
publication). Appellant’s motion for mistrial was untimely under this standard and did not
preserve error.
We overrule appellant’s third point of error.
B. Admission of evidence
In his first and second points of error, appellant complains about the admission of part of
State’s Exhibit 25, which was a collection of several certified documents that the State
introduced during the sentencing phase of the trial. Specifically, appellant argues that the trial
judge erred by admitting a six-page predisposition report by the Dallas County Juvenile
Department as part of State’s Exhibit 25. That report contained allegations that appellant
participated in two aggravated robberies in September 2008 when he was fifteen. In his first
point of error, appellant argues that admission of the predisposition report violated his rights to
confrontation and due process under the Sixth and Fourteenth Amendments to the United States
Constitution. In his second point of error, appellant argues that the trial judge erred by admitting
the predisposition report because the State did not give him notice of its intent to use that
evidence as required by article 37.07 of the Texas Code of Criminal Procedure.
Appellant did not preserve any of his appellate arguments in the trial court. A party’s
complaint on appeal must comport with his objection in the trial court, and the trial objection
must be specific enough to put the trial judge on notice of the objecting party’s legal theory.
Pena v. State, 285 S.W.3d 459,464 (Tex. Crim. App. 2009). In a hearing outside the presence of
5
the jury. appellant argued that the predisposition report was inadmissible because there was no
adjudication that appellant had committed the crimes described therein. The judge overruled the
objection. Then. when the trial resumed and the State offered State’s Exhibit 25. appellant
objected that the “unadjudicated offense” was inadmissible because it was “hearsay and not
proven.” The trial judge overruled the objection.
Appellant did not mention the Constitution. due process, or confrontation in either of his
objections. A hearsay objection does not preserve appellate arguments based on the
Confrontation Clause. Revna v. State. 168 S.W.3d 173. 179 (Tex. Crim. App. 2005): Paredes v.
State. 129 S.W.3d 530, 535 (Tex. Crirn. App. 2004). Nothing in appellant’s objections gave the
trial judge notice that appellate was making a due-process objection to the admission of the
predisposition report. Appellant’ s first point of error was not preserved, and we overrule it.
Similarly, appellant did not argue that the trial judge should exclude the predisposition
report because the State failed to give appellant notice as required by article 37.07 of the code of
criminal procedure. He did not even mention the notice requirement in his objections.
Accordingly, he failed to preserve error. See Tracy v. State. 14 S.W.3d 820, 825 (Tex. App.—
Dallas 2000, pet. ref’d) (“Appellant did not object to the lack of notice at trial; accordingly, no
error is preserved for appellate review.”). We overrule appellant’s second point of error.
III. DisPosiTioN
Having overruled all of appellant’s points of error, we affirm the trial court’s judgments.
,
{IiERALD
-
JUSTIQ
1)o Not Publish
TEX. R. App. P. 47
1 10704F.U05
6
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JUDGMENT
LUThER FfI’ZGERALD STINSON a/k/a Appeal from the 366th Judicial I)istrict
LUTHER FITZGERALD STINSON, JR., Court of Collin County, Texas. (Tr.Ct.No.
Appellant 366-82777-10).
Opinion delivered by Justice FitzGerald.
No. 05-1 1-00706-CR v Justices O’Neill and Lang-Miers
participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered November 29, 2012.
KLRRY P. FlT7(IRAll)
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JUDGMENT
LUTHER FITZGERALD STINSON alk/a Appeal from the 366th Judicial District
LUTHER FITZGERALD STINSON. JR.. Court of Collin County, Texas. (Tr.Ct.No.
Appellant 366-8201 1-10).
Opinion delivered by Justice FitzGerald,
No. 05-1 1-00705-CR V. Justices O’Neill and Lang-Miers
participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered November 29, 2012.
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JUDGMENT
LUTHER FITZGERALD STINSON alk/a Appeal from the 3 66th Judicial District
LUTHER FITZGERALD STINSON, JR.. Court of Collin County. Texas. (Tr.Ct.No.
Appellant 366-8201 0-10).
Opinion delivered by Justice FitzGerald,
No. 05-11 -00704-CR V. Justices O’Neill and Lang-Miers
participating.
THE STATE OF TEXAS. Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered November 29, 2012.
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JUDGMENT
LUTHER FITZGERALD STINSON a/k/a Appeal from the 366th Judicial District
LUTHER FITZGERALD STINSON, JR., Court of Collin County, Texas. (Tr.Ct.No.
Appellant 366-8281 1-10).
Opinion delivered by Justice FitzGerald,
No. 05-1 1-00707-CR V Justices ONei II and Lang-Miers
participating.
THE STATE OF TEXAS. Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED,
Judgment entered November 29. 2012.