### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00542- CR

F ranklin Lashaw n Will iam s, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 09- 003- K2 6, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Fr anklin L ashaw n Wil liams was charg ed with two cou nts of agg rava ted assault on

a public serva

nt and one count of ev ad i n g arr est in a motor vehicle. See Tex. Penal Code Ann. §§ 22.02, 38.04 (West Supp. 2010). All three char g es arose from a single incident. The State alleg ed that when police office rs attempted to execute an arr est war rant on Wil liams for ag g rava ted robb ery involving the use of a deadly wea pon, Wil liams fled in his car and tried to run down two police officer s in the proce ss. A j ury convicted Wi lliams on one of the assault counts and on the evading arr est count. On appea l, Wil liams argu es t h at the trial court err ed by admitting testimony reg arding the nature of t h e ar rest war rant poli ce were try ing to execute. He arg ues t hat while the existence of the war rant was rele vant t o explain why the offic ers we re initially pursuinghim, the fac t tha t the war rant was for ag g rava ted robber y with a deadly wea

pon was irrele vant and prejudicia l. We hold that W illiams waived this arg ument at trial. We aff irm his conviction. 1

F ACTUAL AND P ROCEDURAL BACK GR OUND On Dec ember 31, 2008, police office rs undertook to execute an arr est war rant on Wil liams for aggra v at ed robber y involving the use of a handg un. See Tex. Penal Code Ann. § 29.03(a) (2) (West Supp. 2010). The police lear ned th at Wil liams was at a particula r apar tment complex and went to the scene in two car s; office r J erod M o rr i s d rove one, and office r Michae l Hallmark drove the other. As the office rs enter ed the apar tment complex’s parking lot, they

saw Wil liams g etting into his car . The office rs attempted to block Wil liams’s car with their own to preve nt Wil liams from flee ing. The office rs stopped their car s, exit ed them, and beg an approa ching Wil liams’s car on foot while y elling “Stop! Police!” The office rs wer e wea ring vests with the word “Sheriff ” printed on them. Wil liams beg an driving his car towards Morris, and Morris ducked back inside his car to avoid being struck. Wil liams was able to exit the parking lot and b ega n d riving

awa y . The office rs followed Wil liams in their vehicles and eng ag ed in a leng thy pursuit that cover ed larg e portions of west and centr al Geor g etown. At least six police vehicles repr esenting four differ ent ag encie s participa ted in the pursuit, during which W illiams wove in and out of traff ic,

After Wil liams’s counsel filed his brief, this Court rec eived from Wil liams a pro se motion 1 to a mend the brief. I n the motion, Willi ams criticizes counsel’s brief and raises additional issues. Howeve r, a criminal defe ndant has no rig ht to hy brid repr esenta tion or to repr esent himself on direc t appea l. Scheane tte v. S t a t e , 1 4 4 S.W .3d 503, 505 n.2 (Tex. Crim. App. 2004). Acc ording ly , the motion has been m ar k ed “r ec ei v ed not filed,” and we will not rule on or addre ss any of the ar g uments raised in it. See id ; Berry v . State , 278 S.W .3d 492, 495 (Tex. App.—Austin 2009, pet. re f’d)

. 2disreg arde d stop signs and traff ic signa ls, drove on the wrong side of the roadw ay , left the roadw ay , and came close to striking two of the police vehicles. The pursui t en d ed o n ly afte r Wil liams’s vehicle collided with a fence next to a bridg e nea r downtown Ge org etown. W illiams fled on foot afte r his vehicle was disabled, and office rs eventua lly appre hended him atop a rock embankment next t o the San Gabr iel River.

As a result of the incident, the State char g ed Wil liams with two counts of ag g rava ted assault on a public serva nt—one eac h on Officer s M orris and Hallmark—w ith Wil liams’s car play ing the role of deadly wea pon. See Tex. Penal Code § 22.02. The State also char g ed Wil liams with one count of e vading arr est in a m otor vehicle. See id

. § 38.04. Wil liams pleade d not guilty and we nt to trial.

During its opening statement, the State mentioned that the episode in que stion took place while pol ice officer s wer e attempting t o arr est Wil liams fo r aggr av ated robbery involving a deadly wea p o n . Wil liams did not object. The State then called its first witness, Gra ng er Police Chief David Mace , who had joined in the vehicular pursuit of Wil liams. The following exchang e occ urre d:

PROS ECUTOR: Chief, I ’m g oing to direc t y our attention to an investiga tion that y ou wer e conducting back in Dec ember of 2008 invo l v i n g the defe ndant, Fr anklin L ashaw n Wil liams. MACE: Yes. PROS ECUTOR: Okay

. What wa s the investigation, just the offe nse that y ou wer e looking a t? MACE: I was looking at ag g rava ted robbe ry .

3PROS ECUTOR: And ag g rava ted beca use of what k ind of—wha t made it ag g rava ted? DEF ENSE: J udg e, I ’m g oing to objec t to the releva nce of the question. I think the State’s entitled to question whether the re w as an active war rant, but I don’t believe there ’s any

rele vance in what these othe r unprove n alleg ations are

. PROS ECUTOR: I ’ll rephr ase, Y our Honor. THE COURT: Thank y ou. PROS ECUTOR: You had indicated there was an agg rava ted robber y . I g uess the only thing I ’m asking is w hat is a n ag g rava ted robber

y versus a robber

y . What was the ag g rava ting c ircumstance ? DEF ENSE: J udg e, ag ain, I ’m g oing to object to the rele vance . The only thin g t h e jury needs to know is there was a valid war rant, that’s the reason why the person’s being arr ested. PROS ECUTOR: J udg e, I think, to show why the offic er took the steps that he did, not only was there an active warr ant for an agg rava ted robbery , but the dang er tha t was involved in that particula r ty pe of war rant, and that’s what I ’m seeking to elicit. THE COURT: I ’ll overr

ule the objection. I ’ll permit y ou, based on that connec tion. PROS ECUTOR: J ust what was the w eapon? MACE: The wea

pon was a handg un.

L ater , the State called Offic er Morris to the stand. Offic er Morris stated that he first beca me i nvolved i n this case when he lear ned that t h e Grang er Pol ice Depar tment “had a warrant for Ag g rava ted Robbery with a Fire arm on a subject by the name of Fr anklin Wil liams.” Wil liams did not object to this statement. Morris then discussed how he and his fellow office rs had formulated

a strateg y for arr esting Wil liams awa y from his home, hopefully there by deny ing him acc ess to the firea rm that he had alleg edly used in the crime for which they wer e g oing arr est him. The prosec utor

4asked Morris to verify that the crime was ag g rava ted robber

y , and M o rr i s d i d s o. Wil liams’s attorney objected, stating, “Judge, ag ain, I ’m g oing to object to the side bar. We’ve g one over that. I f they want to tell the jury he was char g ed with ag g rava ted robber

y , I think this is the 11th time they ’ve done it. I object to that beca use it’s not rele vant.” The judge overr uled the objection on the basis that the nature of Wil liams’s offe nse was rele vant to explaining the office rs’ ap p ro ac h to

arr esting Wil liams.

The State then called Offic er Marc Vivas, who had ridden along with Offic er Morris

on the day in question. Vivas testified that befor e riding along with Offic er Morris he lear ned “that [W illiams] was wanted for an ag g rava ted robber y with a wea

pon.” Wil liams did not obje ct to this statement. Finally , during closing arg ument, the prosec utor ag ain stated that Wil liams “had a felony

arr est war rant for ag g rava ted assault with a de adly wea pon.” Willi ams did not object. The jury found Wil liams g uilty of evading arr est and of ag g rava ted assault on Offic er Morris. I t found Wil liams not g uilty of ag g rava ted assault on Offic er Hallmark. Wil liams appea ls.

STANDARD OF REVIEW We revie w trial court ruling s on the admissibili ty of evidenc e for abuse of discretion. Carrasco v. State , 154 S.W .3d 127, 129 (Tex. Crim. App. 2005).

DISCUSSIO N Wil liams raises a single point of err or: “The trial court reve rsibly err ed by admitting,

over appellant’ s timely objection, evidenc e that the arr est war rant the police wer e attempting to serve

on appellant was for an ag g rava ted robber y offe nse that involved the use of a handg un.” Wil liams

5bases t his arg ument solely on the above- quoted exchang e involving Chief Mace ’s testimony

.

Wil liams arg ues that Mace ’s testimony was irrele vant under rule of evidenc e 401, and there fore should not ha

ve been admitted under rule of evidenc e 402, beca use the nature of Wil liams’s arr est

war rant wa s irrele vant to whether Wil liams committ ed the of fense s alleg ed in this case. 2 We hold that Wil liams waived this arg ument beca use he did not object ever

y time the nature of his arr est war

rant came into evidenc e. “‘[T]o prese rve err or in admitting evidenc e, a party

m u s t

. . . object each tim e the inadmissible evidenc e is offe red or obtain a running obje ct i o n . An

err or [i f any ] in the admission of evidenc e is cure d where the same evidenc e comes in elsewhe re without objection.’” Lane v. State , 151 S.W .3d 188, 193 (Tex. Crim. App. 200 4 ) (q u oting Valle v. State , 109 S.W .3d 500, 509 (Tex. Crim. App. 2003)). Whil e Wil liams objected to O ffice r Mace ’s t es timony about the nature of his arr est war rant, he objected inconsistently to the same testimony from Offic er Morris and did not object at all to the same testimony from Offic er Vivas.

Even if Wil liams had not waived his objection, any err or i n admitting the office rs’ testimony would be harmless. See Tex. R. App. P. 44.2(b) ( non-constitutional error that does not aff ect substantial rig hts must be disreg arde d); King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997) (Rule 44.2(b) harm standa rd is whether err oneous admission of evidenc e “ha d a substantial and injurious eff

ect or influence in deter

mining the jury ’s verdic t.”). First, the State prese nted strong evidenc e of Wil liams’s g uilt: the jury saw video rec ording s of the pursuit of Wil liams, and office rs

The State arg ues that the nature of the arr est war rant was rele vant to show Wil liams’ s 2 motive and intent in evading arr est and assaulting the pursuing office rs. I t also arg ues that the nature of the arr est war

rant was rele vant to explain the office rs’ approa ch towards arr esting and pursuing Wil liams. 6Morris and Vivas both testified that Wil liams drove his car at Morris afte r Morris identified himself

as a police officer

. Second, the jury char g e ins t ru ct ed t h e j ury that it could consider the nature of Wil liams’s arr est war

rant only insofar as it illumi nated Wil liams’s motive and intent in committing the char g ed offe nses. See W illiams v. State , 273 S.W .3d 200, 227 n.101 (Te x . C ri m . App. 2008) (limiting instruction ca n mitigate ha

rm ca used by improper a dmission of evidence ). For the rea sons stated above, we overr ule Wil liams’s issue and aff irm t h e trial court’ s judgme nt.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Henson a nd Goodwin Affir med Filed: F ebrua

ry 25, 2011 Do Not Publish

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