IN THE

TENTH COURT OF APPEALS

No. 10-07-00317-CR

DERRICK DWAYNE GRANT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2007-1417-C2

OPINION ON REMAND

Derrick Dwayne Grant pled guilty to the offense of burglary of a habitation with 

the intent to commit aggravated assault with a deadly weapon. TEX. PENAL CODE ANN.

§ 30.02 (Vernon Supp. 2010). He elected to have a jury determine his punishment, 

which was assessed at fifty-five years in prison. In his original brief on appeal, Grant 

raised two issues. He complained that the trial court erred by ruling that the State’s 

peremptory challenges were not improperly racially motivated and that the trial court 

abused its discretion in allowing the State to question Grant’s witnesses regarding 

whether Grant should be placed on community supervision or sent to prison. On 
Grant v. State Page 2

original submission, we sustained Grant's first issue and reversed and remanded for a 

new punishment hearing.

The State appealed this Court’s decision to the Texas Court of Criminal Appeals. 

The Court reversed and remanded the case to this Court for consideration of Grant’s 

remaining issue. Following remand, we gave the parties the opportunity to file 

supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App. 

1990). The State filed a waiver and Grant did not file a brief. We now consider the 

remaining issue from Grant’s brief on original submission. We overrule Grant’s 

remaining issue and affirm the judgment of the trial court.

Improper Witness Questioning

Grant complains that the trial court erred by allowing the State to question 

witnesses presented by the defense regarding whether or not he should go to prison for 

the offense. There were four witnesses, including Grant himself, who were questioned 

regarding whether a person who shoots someone should go to prison.

Standard of Review

We review the admission of evidence under an abuse of discretion standard. 

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its 

discretion if its ruling is outside the zone of reasonable disagreement. Id.

Preservation of Error

The State contends that Grant’s complaints were not properly preserved at trial 

or do not comport with their complaints on appeal. As a prerequisite to presenting a 

complaint on appeal, a party must have made a timely and specific request, objection, 
Grant v. State Page 3

or motion to the trial court. TEX. R. APP. P. 33.1(a)(1)(A). Rule 33.1 also requires an 

adverse ruling to preserve error for purposes of appeal. See Moff v. State, 131 S.W.3d 

485, 489 (Tex. Crim. App. 2004) (recognizing that the rules of evidence prescribe that a 

complaining party obtain “an adverse ruling from the trial judge . . . to preserve error in 

the admission of the evidence”). 

Timeliness

An objection is timely if it is made as soon as the ground for the objection 

becomes apparent, i.e., as soon as the defense knows or should know that an error has 

occurred. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). Generally, this 

occurs when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. 

App. 1995). If a party 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 error is waived. Id. 

Specificity

The purpose of the specificity requirement in rule 33.1(a) is to (1) inform the trial 

court of the basis of the objection and give it an opportunity to rule on it; and (2) give 

opposing counsel the opportunity to respond to the complaint. Resendez v. State, 306 

S.W.3d 308, 312 (Tex. Crim. App. 2009). Additionally, a party’s “point of error on 

appeal must comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346, 

349 (Tex. Crim. App. 2002); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 

1995) (point of error raised on appeal must correspond to objection made at trial).
Grant v. State Page 4

Failure to Continue to Object

It is also necessary that the objecting party must continue to object each time the 

objectionable question or evidence is offered, obtain a running objection, or request a 

hearing outside the jury’s presence in order to preserve a complaint for appellate 

review. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Fuentes v. State, 

991 S.W.2d 267, 273 (Tex. Crim. App. 1999). When, in response to an objection, the State 

rephrases the question and no objection is made to the rephrased question, there is no 

adverse ruling to complain about on appeal. See Badall v. State, 216 S.W.3d 865, 872 

(Tex. App.—Beaumont 2007-, pet. ref’d).

Testimony of Grant

Grant testified on his own behalf. The questioning about which Grant complains 

was:

State: How many times do you think you should be able to shoot 

somebody before you go to the penitentiary?

Grant: Can you repeat the question?

State: How many times do you think you should be able to shoot 

somebody before the right thing is done and you go to the 

penitentiary?

Grant: I don’t think anybody deserves to be shot—

State: I didn’t ask you that.

Grant: --period.

State: I asked you, how many times do you think you should be able to 

shoot somebody before this jury does the right thing and sends you 

to the penitentiary?
Grant v. State Page 5

Defense counsel: I object, Your Honor. He’s talking about the jury 

doing the right thing. And, in fact, the objection more 

appropriately is the question evades (sic) the province of the jury. 

They’ll tell us. So we object to the question.

State: Judge, he’s asking this jury for probation. In fact, he has told the 

jury he would do probation. I’m asking him simply how many 

times does he think he should be able to shoot somebody before he 

goes to the penitentiary.

Defense Counsel: Counsel has just made an argument and said this jury 

to do the right thing would be to send him to the penitentiary.

The Court: I’ll ask the State to rephrase the question.

State: Thank you, Judge. 

State: How many times do you think you should be able to shoot 

somebody before you go to the penitentiary? That’s the question. 

How many times?

Grant: Do you—

Grant: Is he going to rephrase the question or what?

The Court: He did.

Grant: Can you repeat it one more time?

State: How many times do you think you should be able to shoot 

somebody before you go to the penitentiary?

Grant: I think none.

Grant did not object to the question after it was rephrased after his initial 

objection. Therefore, any objection to these questions was waived. Fuentes, 991 S.W.2d 

at 273.
Grant v. State Page 6

Testimony of Ripley

Ripley was Grant’s manager at Target. On cross-examination, the following 

questioning took place:

State: But you’re going to tell those at Target that the Defendant is a good 

person to hire for Target.

Witness: I could recommend, yes sir.

State: Okay, let me ask you if your opinion would change if he had shot 

your loved one. Would your opinion change?

Defense counsel: Your Honor, I’m going to object to that. He’s talking 

about his personal loved one. Of course. That’s an improper 

question.

The Court: Sustained.

State: What kind of punishment, then, do you think somebody should get 

when they shoot somebody at least five times?

Defense counsel: Your Honor, that’s an improper question. He is 

attempting to evade (sic) the province of the jury. It’s patently 

improper unless he wants me to put some witnesses on in 

connection with that. It’s an improper question.

State: Judge, I will say that my understanding is the objection that it 

evades (sic) the province of the jury is no longer even an objection. 

I don’t totally understand what he’s objecting to. The jury will 

make their decision.

Defense counsel: It is not within a witness’s capacity to render 

judgment on this case, Your Honor.

The Court: Sustained.

Defense counsel: Your Honor, at this point I’m going to ask that the 

jury be instructed to disregard the inquiry.

The Court: I’ll instruct the jury to disregard the last question of counsel.
Grant v. State Page 7

Defense counsel: We move for a mistrial, Judge.

The Court: Denied.

The first objection to Ripley’s testimony was waived due to Grant’s failure to 

seek an adverse ruling after the trial court sustained his initial objection. See Moff v. 

State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Grant did, however, properly 

preserve his second objection and his motion for mistrial was denied. We will address 

the denial of the motion for mistrial below.

Testimony of Velasquez

Velasquez knew Grant through his step-daughter Priscilla, who was involved 

with Grant at the time of trial. Grant complains about the following questioning:

State: Mr. Velasquez, would your opinion change of Derrick Grant if he 

had shot Priscilla five times?

Defense counsel: Your Honor, I’m going to object to that. Again it’s—

Judge, would my opinion change if Melanie, if she shot me five 

times? Of course. It’s an improper question. It plants prejudice, 

bias, and sympathy into the witness and into the minds of the jury. 

It’s apparently an illegal question.

State: It’s not at all, Your Honor. I have every right to ask him that.

The Court: I’m going to allow the question.

State: Mr. Velasquez, would your opinion of him change?

Witness: Yeah. I would feel just the same way I feel now.

***

State: Okay. Would you welcome him into your family as happy father 

of the bride or stepfather of the bride?
Grant v. State Page 8

Witness: Yeah. I feel he’s a good guy. I really do. I mean, what I see, 

you know, like I said. I don’t think he’s a bad guy.

State: Would your opinion change if he abused your stepdaughter.

Witness: Yeah.

Defense Counsel: Same objection, Judge. Even with the Court 

overruling it or sustaining. We object to this line of inquiry, Your 

Honor. It is that line of inquiry attempting to infect prejudice into 

these entire proceedings.

State: I’m just trying to figure out whether this witness would have a 

different opinion if some of the stuff was a little bit more personal 

to him. He’s already testified he wasn’t sitting in here and listening 

to the victim testify.

The Court: I’ll allow the question.

In both segments of Velasquez’s testimony, Grant’s objection at trial was that the 

testimony was unduly prejudicial. However, on appeal, he complains that the 

testimony improperly sought the witness’s opinion regarding what Grant’s sentence 

should have been. His objection on appeal does not comport with his objections at trial. 

Therefore, Grant’s complaint on appeal was not properly preserved. Wilson v. State, 71 

S.W.3d 346, 349 (Tex. Crim. App. 2002). Additionally, the second objection to 

Velasquez’s testimony was not made timely because it was not made until after the 

question had been answered and Grant did not justify the delay. Dinkins v. State, 894 

S.W.2d 330, 355 (Tex. Crim. App. 1995). 

Testimony of Jones

Finally, Grant complains of the following questioning of Jones, Grant’s father:

State: Let me ask you. What do you think should happen to someone 

who shoots another person at least five times?
Grant v. State Page 9

Witness: What do I think should happen?

State: Yeah.

Witness: I think if the individual demonstrated they know that he had

the love for the person that he had for Daisy, I think, like I said, in 

my opinion, he snapped. Like I said, it was wrong for what he did. 

Definitely wrong. But I don’t think he should be jailed for 99 years 

or nothing like that. Everybody makes a mistake in life. They 

should have a chance to make that up.

State: Surely you think he should go to the penitentiary somebody who 

does that?

Witness: In my opinion?

State: Yes. Shoots another human.

Witness: It depends on the jury.

State: I’m asking you. What do you think?

Witness: No, I don’t think so.

State: Okay. You don’t think he should go to prison?

Witness: No. I’m not going to tell you to send my son to jail. I mean, 

that’s an honest opinion.

 

No objection was made to any of Jones’s testimony. An objection was necessary 

to preserve error. Any possible error to the admission of this testimony was waived 

because there was not a timely objection.1 See TEX. R. APP. P. 33.1(a)(1)(A). 

Thus, the only complaint of Grant’s which was not waived is the denial of the 

motion for mistrial that was denied by the trial court during the testimony of Ripley.

 

1 Because of our holding regarding preservation of error relating to Grant’s complaint, we do not reach 

the merits of whether the substance of the questioning by the State was proper.
Grant v. State Page 10

Motion for Mistrial

Mistrial is appropriate for only “highly prejudicial and incurable errors,” and 

“may be used to end trial proceedings when faced with error so prejudicial that 

‘expenditure of further time and expense would be wasteful and futile.’” Hawkins v. 

State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Simpson v. State, 119 S.W.3d 262, 272 

(Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 

2000)). 

The trial court promptly instructed the jury to disregard the objected-to question 

when requested as described above.2 See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. 

App. 2000) (“Ordinarily, a prompt instruction to disregard will cure error associated 

with an improper question and answer.”). When a trial court instructs a jury to 

disregard certain testimony or questions, we presume that the jury follows the trial 

court’s instructions. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); cf. Wood, 18 

S.W.3d at 648 (noting that a trial court is required to grant a motion for mistrial only 

when the improper question is “clearly so prejudicial to the defendant and is of such 

character as to suggest the impossibility of withdrawing the impression produced on 

the minds of the jurors.”). 

After reviewing the record, we cannot conclude that the jury did not follow the 

trial court’s instructions to disregard the State’s question. This is especially true in light 

 

2 We recognize that the “invading the province of the jury” objection made by Grant is no longer 

recognized as a valid objection. See TEX. R. EVID. 704; Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 

1992) (“invading the province of the jury” no longer valid objection to opinion testimony). However, the 

State does not raise that issue in its brief. Our holding should not be construed to express approval of the 

substance of Grant’s objection or the propriety of the trial court sustaining the objection.
Grant v. State Page 11

of the fact that the other objections to similar questions were not preserved and the 

other witnesses had actually answered the similar questions, whereas Ripley did not 

ever respond to the question. Further, Grant was seeking community supervision for 

burglarizing his ex-girlfriend’s apartment and shooting her five times with their fouryear-old son in the apartment. Evidence was presented during the trial regarding 

Grant’s history of violence toward the victim. Grant was not sentenced to the 

maximum term or the upper range of it, nor was he sentenced anywhere close to the 

minimum term for this offense. We find that the trial court did not abuse its discretion 

in denying the motion for mistrial. We overrule issue two.

Conclusion

Having overruled Grant’s remaining issue on appeal, we affirm the judgment of 

the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed on Remand

Opinion delivered and filed February 16, 2010

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