### TEXA S COU RT O F AP PEAL S, THIR D DISTRIC T, AT AU STIN

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4444 NO. 03-99-00522-CR

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4444 Carl os Adal berto Soto, Appel

lant
v. The State of Texas , Appellee

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4444444444 FROM THE DISTRICT CO URT OF TRAVIS COUNTY, 299T H JUDICIAL DIST RICT

NO. 0984849, HONORABLE JON N. WISSE R, JUDGE PRESIDING

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4444444444 Appellant Carlo s Ada lberto Soto was co nvict ed by a jury of t he offe nse o f attempted capital murderof Hea ther H esskew and Y vette Tw idw ell. SeeTex. Penal Code Ann. §§ 15.01, 19.03( a)(7) (West 1994). The jury als o made an affirmative finding that ap p ellant useda deadly weapon during the commission of the o ffense as al leged in th e indi ctm ent. The trial c ourt asse ssed pun ishm ent at thirt y years’ im prisonm ent.
Points of Error Appellant advances twelve points of er ror, mostly complaining of evident ia ry rulings by the trial court. I n the first two points of er ror, appe llant complains of the admission into evidence of pil lowcases and a photograph of gu ns, contending that this evidence was the productof an illegal search andseizure. In the third p oint , appel lant u rges tha t the t rial co urt erred in excluding evidence of the bias and interest of oneof the complainants. In point of error2

four, appellant argue s that th e tria l court err ed inexcluding proper evidenc e under Rule 404(b) of the Texas R ules of Eviden ce concerning w itness Eric C haney
. SeeTex. R. E vid. 4 04(b). In points of error five through nine, ap pellant c ontends that extraneous acts were admitted into evidence contra

ry to theproce duresrequir ed by Rule 40 4(b) . In p oints ten and eleven, appellant complains that the tr

ial cour t faile d to condu ct a proper b alancin g test and that evidence was admitted in violation of Rule 403. Tex. R. Evid. 403. In the las t point of error , appellant contends th at

th e t ri al co ur t e rred inov er ru li ng a mi st

ri al mot io n b as ed

on imp roper

ju ry
argument b y the pr os ec ut or . W e wi ll af fi rm. Backgr ound There is no challenge to the suff iciency of evidence. A brief recitation of the voluminous facts will place the points of error in prop er perspect ive. It i s clear from the reco rd that appella

nt sh ot sixteen-year-old Yvette Twidw ell and twenty-three-year-old Heather Hesskew with a rifle in an apartment in Austin on the night of August 25 , 1998. Both underwent extensive surgery to save t heir lives.

Kika Wat son, driv ing h om e from work on th e afterno on of A ugust 25, 1998, picked up appellant andhis co-defendant, Arturo Malagon, who were walking. They were all friends. Appellant and M alago n had bee n drinki ng beer . Later , the thr eesome drove to Eri c Chan ey’s ap ar

tme nt inth e P ie rre Marq

ui s Ap ar tme nt comple x. Watson was a friend of Chaney’s. Appellant and M alagon di d no t kn ow Chaney. Watson’s purpos e was to get Chan ey’s ol de r g irlf

ri en d ( Hes sk ew) to buy s ome beer for them as the threesome were all under age. Hesskew told

them that Chaney, who w as at work, had her ide ntification card. She invited1 The argument was appa r ently over th e fact th at H esskew had no t wa shed C haney ’s

clothes that day and he was without clean clothes for his birthday party. 3 the three some to re turn ab out 6:30 p. m. to celebr ate Chaney’s birthday. After getting someone else to buy beer for

them, Watson, appella

nt, and Malagon retu

rned to the Chaney

apart ment. Upon their return, they found Chaney and Hesskew arguing and fighting. 1 When the argument ended, the men went out on the balcony of the upstairs apar

tment 213. Heather Hesskew then locked the door and later yelled that she was going to kill herself. The men forced the door open and found Hesske w with a knife, that she had used to cut herself on

the stomach. Soon Cheney and Hesskew “made up,” and the birthday par ty continued. Later, Rob DeLuna and his gi rlfriend, S usan, arriv ed and they w ere joined by Wesley Welc h, his girlf riend, Yvette Twidwell, and W esley’s b ro ther, St eve Welch. The Welches and Twidwell lived in an apartment downstairs. Twidwell did not remain at the party long
. She returned to her apart ment. Watson, appellant, and Malagon e ach ha d six beers or more to drink when DeL una’s gi rlfriend, S usan, pa ssed by a ppell ant in the sm all ap artm ent. Appellant told her to get him a beer and she told him to get it himself

. As shewalked pas t, appel lant “ flippe d her off” wit h an obsc ene gest ure. De Luna confront ed app ellan t and a n argum ent en sued. Chane y intervened. Shortly t

herea fter , DeLuna and

Susan le ft the apa rtment. Chaney, who knew Watson but n ot app ellan t or M alagon , confront ed app ellan t abou t his co nduct wit h Ch aney’s guests. An argument erupted, but Watson inter vened. Later, a

ppellant became sickand went outside whe re he threw u p. Wh en Malagon left to go outside, Chaney asked if Malagon was going to “check onhis girl [appellant] ?” Neither appellantnor Malagon returned to the party.4 When Watson decided to leave the party, no onewanted him to drive as he was drunk. Watson insisted and went to the parking lot and dr ove away. He was followed by the Welch brothe rs and C haney in W esley W elch’s car. Hesskew and Twidwell, who had appeared
on the parking lot, could not get in the small car so theywent to apar tment 213 wherethe par

ty had been in prog ress.

Chane y testified that he and the Welch brother s found Watson’s a utomobi l e parked in his dr iveway at hishome and as sumed that hewas saf e. They b rief

ly stoppe d at a Mc Don ald’s restauran t before ret urn ing to t he apartment complex. In the parking lot they encountered

two brothers, one of

whom had been a security guard at the apartment complex. While t hey were tal king, Chan ey heard shots.

HeatherHesskew heard a knock at her a partment door. When she opened it, she
was shot i n the c hest. A second shot h it T wid wel l in t he shou lder. Hesskew identified appellant
as the man who shot her. She told Chaney, “They came back.” Twidwell w as heard to sa y: “I know who shot me.” Both women were taken

to the ho spital and un derwe nt surge ry. Offic ers found 7.62 x 39 caliber

shells at the scene
. Co-defendant

Malagon testified for the State. He related tha t when he and appellant left the party, they went to appellant’s near by home. Malagon stated that appellant
ca me out of his home with a rifle and an “off -white orbeige cloth or soft-sid ed gun bag.” They returned to the Chaney-Hesskew apartment. Malagon knocked on the door. When the door opened, appellant fired two shots. Malagon repor ted that he and appella

nt then ran, but

in different direct ions. M alago n talk ed to a ppell ant th e next day vi a the t eleph one. The Pill owcases5 In his first point of

error , appellant complains that the trial court err ed inadmitting evidence that was seized during the execution of a search warrant “when the information in the search warrant aff

idavit was stale in vio lation of the Fourth Amendment to the U nited States Con stitu tion and A rticle I, sectio n 9 of th e Texa s Con stitu tion .”

The complained- of evid ence ap pearsto be two pi llow cases (State’s exhibits no s. 68 an d 69 ). As the State notes, appella nt does n ot point out

where he objecte d to the admission of the pillowcases on the grounds now urged on appeal or where he obtained an adver se ruling
so as to preser

ve error. SeeTex. R. App. P. 33.1(a). Appellant does give a record citation to the location of his objection, but a review of the record ther e reveals that the pillowca ses were adm itte d wi thou t obj ectio n or “no further ob jecti ons.”

The pillowcases were introd uce d durin g the c ross-exam inati on of ap pella nt’s
mo ther. This occurred late in the guilt/innocenc e stage of the trial after earlier legal dis cussions of search and s eizure issue s. At the time in question, no evidence from the search had been intr oducedinto the reco rd. Gu adalu pe Sot o testi fied th at her t wo so ns, appe llant and G ilbert Soto, Jr., lived with her at her house. She was still marrie d but was not living with her husband. She t estified that appellant came home shortly after 10:00 p.m. on the night in question. Appellant was d runk an d threw up in the ba throom
. Appellant’s mother related that she locked t he doo r a

nd a ppe lla nt did n ot l eave ag ai n th at night. On c ro ss -e xamina tio n, thefo llo wi n g occurred:

Q: (By Ms. Casner) Ms. Soto, I’m going to show you what’s been marked as State’s Exhibit 68 and State’s Exhibit 69. Do you recognize thes e?6

A: Yes , Ma ’a

m. Q: Oka y. Do y ou

kn ow wh ere t

he y c amefr

om? A: I had them on top of tw o rifles. Q: Okay. Inside your hous e? A: Yes , Ma ’a

m. Q: Do you remember if it was in your bedroom or in a closetsom ewh ere wh ere they were located? A: In the l iving ro om closet. Q: Okay, in a closet? An d these were draped o ver two rifles? A: Yes . Ma ’a

m. Q: Okay. And just so the jury knows, these were taken by the police officer s at [sic] a s earch warrant that was exe cuted on your house? A: Yes , Ma ’a

m. Q: Okay. MS. CA SNER : I’ll off

er State’s Exhibits 68 and 69 into evidenc e. MR . KIR K [D efense C ounsel ]: No further ob jecti ons, Y our H onor. THE COU RT: O kay. I think the C ourt has ruled on th e objection s.2 The court reporte r’s records reflect that these exh ibits were pillowcases, not photographs of pillowcases . The color of thes e pillowcases is not ref lected in the record.
3 The caliber of theserifles was never established, but the record makes clear that none of the firear ms found in the ho use duri ng th e search w ere conn ected w ith t he shoo ting s or we re of the same cal iber as the weap on or rifle used to infli ct the w ounds on the co mplai nants.

4 This proposition of law is an exception to the r ule discussed in Purte ll v. State , 7 61 S.W.2 d 360, 3 68 (Te x. Cri m. A pp. 198 8). 7

Stat e’s exhibits nos. 68 and 69 were then admitted into evidence. 2 On r edi rect examination, Guadalupe Soto stated that the rifles, which she voluntarily mentioned, belonged to her husband. 3

Normally, a specific objec tion is required to be made each time an off er of inadmissib le evidence is made in order to preserve any error f or review
. Purte ll v. State , 761 S.W.2d 360, 368 (Tex. Crim. App. 1988 ). Appel lant doesnot point o ut ho w erro r was preserved . How ever, when a trial court overr ules a pretr

ial motion to suppress evidence, error is pres erved

as to thesubjec t matter of the motion pr esente d to t he trial court, without the
neces sityof a furthe r trial o bject ion. Livingston v. State , 739 S.W.2d 311, 334 (Tex. Crim. App. 1987); Gearin

g v. State , 685 S. W.2d 326, 329 (Tex . Crim
. App. 1985) ; Krey ssig v . State , 935 S.W.2d 886, 888 (Tex. App.—Texarka na 1996, pet. ref’ d); Wade v . State , 814 S.W.2d763, 765 (Tex. A pp.— Waco 1991, n o pet.). 4

Appellant fileda motion to suppress evidence seized in the execution of a search
warran t. At the suppression hear ings, appellant claimedthat the a ffid avitunderlying the search warrantlacked p robab le cause in that the infor mation contained therei n wa s stale. See Sherlock
v. State , 632 S .W.2d 604, 60 8 (Tex . Crim . App . 1982). At one of the suppress ion hearings, the aff idavit, the searc h wa rrant, and the ret urn the reon w ere int roduced . The ret urn on the search5 See Jonesv. State , 833 S.W.2d 118, 123-24 ( Tex. Crim. App. 1992); Carr oll v. State , 911 S .W.2d 210, 21 8 (Tex . App .—A ustin 1995, n o pet.). 8 warrantreflects the police officer s seized “two off- white/cream colored, embroidered pillow cases; one photo o f susp ect’s b edroom displ aying a long barreled gun.” A t the t hird suppress ion hearing, the trial court eventually overr uled the motion to suppress. I t would thus appear that appellant preserved er ror as to the a dmission of the pillowcases and a photograph. Having preser

ved error by the over ruling o f the s uppre ssion motion , it is incum bent o n appe llant to dem onstrat e that the tri al cou rt erred in its adv erse rulin g. Guzman
v. State , 9 55 S .W. 2d 8 5 ( Tex . Cr im. App . 1 997 ), ha s s et thest an dard

of re vie w o n pr etrial suppress ion ru lin gs . We afford great defer ence to the trial court’sdetermination of the historical factsunder anabuse of discretion s tandard, but we decide de novo whether the trial court er red in apply ing t he law to th ose facts. Id . at 87- 88; Hypolite v. State , 985 S.W.2d 18 1, 185 (Tex. App.—San Antonio 1998, no pet.). Because we do not determine credibility, our de novo review of probable cause be comes a de novo review of a legal questi on. Guzman , 955 S.W.2d at 87-89; State v. Derrow

, 981 S.W.2d776, 77 8 (Tex . App .—H ousto n [1st D ist.] 1998, pet. ref ’d) (c iting Ornelas v. United States , 517 U .S. 690 , 697-99 (1996)).

The facts in the instant ca se regarding the search are clear-cut and undisputed. The ques tion pr esented is whether the infor mation in the search-warrant a ffidavit was stale, therebyprevent ing t he affida vit an d its fo ur corners 5 from establishing probable c ause. The aff id avitby Austin Detec tive Gena Cur tis re flect ed an ong oing inves tigation of the inst a n t offense , which occurred on August 25, 1998; that the victims of the shootings had iden tifie d appellant as the shooter a nd Malagon as the one who forced the door open prior to the shootin gs;9

and that Malagon ha d given a c onfes sion to hi s involvem ent in the o ffense implicating ap pellant. The affidavit then recited Malagon’s version of the offense . The affiant expr essed the belief

that
an assault-type r

ifle used to commit the offense had been retriev ed by appellant from 8203 Parkdale Cove in Austin. The affidavit sought the is suance of a s earchwarran t to sea rch for a 7.62 x 39 caliber rif

le and ammunition and an “off-white orbeige colored cloth or s oft-sided gun bag.” The aff

idavit was dated October 23, 1998. The warrant was issue d on the same day. Appellant ackno wle dges th at M alago n’s confe ssion w as given on October 22, 1998, but notes thatthis fact was not included in the aff idavit, rendering stale the information contained therei n. Appellant argues that the warra nt was issued almost two m onths after the offense , and that the objects sought , if c onnecte d with the crime, would no longer be on the premises in question.

Probab le cause to support the is suance of a s earc h warra nt exist s where the fa cts given to the magist

rate a re su ffic ient to jus tif

y a conc lu sion tha

t the obje ct of th e sear

ch is probably on the premises to be s earched at the tim e the w arrant is i ssued. Bow er v. Stat e , 769 S.W.2d 887, 902 (Tex. Crim. App. 1989 ). Thefactsset out i n the affidavi t must not have be co me stale when

the magistrate is s ues the warran t. Hafford v. State , 989 S.W.2d 439, 440 (Tex. App.— Houston [1st Dist.] 1999, pet . ref’d). The facts attested to must be so closely related to the tim e of the issu ance of t he warrant as to justif y a finding of proba

ble cause. Hered ia v. State , 468 S .W.2d 833, 83 5 (Tex . Crim . App . 1 971); Wachte r v. State , 961 S.W.2d 598, 600 (T ex. A pp.— San A nton io 19 97, pet . ref’d). It is eno ugh, however, that a per son of “rea sonablecaution” w ould belie ve that the objects sought were located at the pla ce to be6 Appellant has not preserve d error under the Texas Constitution. A reviewing court will not decide the issue of whether an appellant’srights were violated under the state cons titution whe re appellant in his brief ha s failed to distinguish his r ights under the state cons titution from those of the fed eral con stitu tion
. Dew berr y v. State , 4 S.W.3d 735, 748 (Tex. C rim. A pp. 199 9). Appellant has not o ffe red s pecif ic arguments and autho rities suppor ting his state constitutional 10 searched. Wachter , 961 S .W.2d at 600. There is no es tablished time limit on how old the inform ation may be. Moore v. St ate , 456 S .W.2d 114, 11 5 (Tex . Crim . App . 1970).
Probab le cau se has an im portant tim e elemen t. Probable cause ceases to ex ist when it is no longer reas onable to presume that items once located in a specif ied place are s till there. Conversely, it may be rea sonableunder all the circumstances to pres ume that th ey ar e still where they onc e were, even af ter a c onsider

able lapse of time. A mong the factors t hat may be considered when evaluating the reasonableness of a magistrate’sinference tha t the suspect proper

ty is likely to be foundwhere it was last s een are the le ngth o f time elapsed, the nature of the property, the nature of the cr iminal activity, and the likelihood that the contraband

mi ght b e mo ved. Gonzales v. State, 761 S. W. 2d 80 9, 813 (Tex. App .—A ustin 1989, p et. ref’d). State v. Bradley , 966 S .W.2d 871, 87 5 (Tex . App .—A ustin 1998, n o pet.).

We mu st use t he “to tali ty of th e circum stances ” to de term ine if t he affi davi t ref lects probab le cause
. Illinois v. Gates , 462 U.S . 213, 23 8-39 (19 83); Bowe r , 769 S.W.2d at 902. In making thedeter mination, theaff

idavit must beinterp reted in a common sens e, r ealisti c
man ner. A hy per-t echni cal ana lysis sh ould be avo ided. Gibbs v . State , 819 S.W.2d 821, 830 (Tex. C rim. A pp. 199 1).

The instant

aff idavit is no model. We conclude, however, from the totality of the circumstances and ou r de novo r eview tha t the se arch- warran t aff idavit ad equately ref

lects proba ble ca us e. The tria l c ourt

di d n ot er r i n o ve rr ul in g the mo tion to suppr ess. We rejec t appellant’s claim of a Fourth Amendment violation. 6claim
. See Brooks v. Stat e , 990 S .W.2d 278, 28 8 (Tex . Crim . App . 1999).
7 Twidwell did not make an in-cou rt iden tific ation of a ppellant. She had, ho wev er, selected appellant from a photographic ar ray, and said right after the s hooting that she knew who shot h er. Hessk ew i denti fied app ellan t at al l tim es as the shoot er. 11 If ourconclusion is wrong, the admission of the two pillowcases into evidence is, nevertheless , harmless er ror beyon d a reason able d oubt
. See Tex. R. App. P. 44.2(a). The two pillowca ses in qu estion w ere admitt ed wit hout further object ions during th e crossexamination of appel lant’s mother. While she stated the two pillowcases were seized, none of the officer s who executed the search warr ant ever identified the pillowcases as being the ones at issue in the particular seizure in ques tion. The pillowcases have significance o nly because of Malagon’s testimony. He never identified the two pillow cases as resembling or being like the singular

“off -white or beige cl oth or soft- sided gun bag.” Appellant’s mother volunteered that she had the pillowcases “on top of two rifles.” She explained that the riflesbelonged to her husband. These rifles were not introduced into evidence, and th ere is no show ing t hat th ey w ere connected in any way with the offense char ged. The evidence against appellant was overwhelming. Both victims at one time or another 7 identifiedappellant as the man who shot them. Co-defendant Malagon testified that appellant shot both w omen with a rifle while he w as prese nt. All the evidence showing appel lant’s guilt renders theadmission of the two pillowcases insignificant. We find beyond a
reas onable doubt that

the er ror, if any, did not contribute to the conviction or punishment. Tex. R. A pp. P. 4 4.2(a).

In part B of the firs t point of error , appellant switches gears . In a m ultifariou s veinhe clai ms t hat, for t he sam e reasons he urged earlier, the trial cour t erred in admitting12

Stat e’s exhib it no . 53 (a ph otog raph of t he tw o pil low cases) int o evid ence. O ur ex amination
reveals that State’s exhibit no. 53, while authorize d to be introduced, was never offered by the State before the jur

y. Appellant’s firs t point of error is overruled. A Photogr

aph of Guns In th e secon d point of

error, a ppellant asse rts th at the “tr

ial cour t erred in admitting, over ob jecti on, evide nce that was the fruit of a n illegal seizure in violation of the Fourth Amendment to the United Stat es Const i tuti on, Article I, Section 9 of the Texas Con stitu tion , and A rticle 38.23 o f the T exas C ode of C rimi nal P rocedure .”

In his brief

, appellanttells usthe evide nce in que stion is State’s exhibit no. 54. This exhibit i s a photograph of a display of numerous guns found in the house whereappellant lived. The guns were not seized, but a photograph of the guns was made at the t ime of the search. Appellant s ubmits that thetaking of the photo graph o f the guns was tantamount to a seizure. Appellant readily acknowledges that his objectionto St ate’s exhibit no. 54 was sustained and the exhib it was not be forethe jur y. Appellan

t, however, calls o ur atte ntion to his
mo ther’s later volunteered tes timony about tw o rifles, admitted without objection. Any earlier sustained objection to the photograph of numerous f irearms and a knife(State’s exhibit no. 54) didnot, without further objection, preserve error as to the m other’s limi ted testim ony on crossexamination. The second point of error is overr uled.

Lack of C onfrontation13 In the th ird point of error , appellant urges that the “ trial c ourt er red in r efus ing to all o w appella

nt to ques tion the c omplainant [ Hesskew] concer ning her bias or intere st in this proceed ing i n vio lati on of th e Six th A men dm ent to the U nited Stat es Con stitu tion .”

Thus, appella

nt pres ents a federal constitutional question of lack of conf rontation. Appellant fails to tell us where he made an objection on the basis he now urges on appeal
. See Tex. R. A pp. P. 3 8.1(h). To preserve error for appellate review , the comp laining p arty must make a timely specific objection and obtain an a dverse r uling on th e obje ction
. SeeTex. R. App. P. 33.1( a); Broxton v

. State , 909 S .W.2d 912, 91 8 (T ex . Cr im. Ap p. 1995). Moreover, the complaint on app eal m ust com port w ith t he tria l obj ectio n. Broxton , 9 09 S .W. 2d a t 91 8. An objection stati ng one theory may not b e used t o suppo rt a diff erent legal the ory on a

ppeal. Johnso n v. State , 803 S .W.2d 272, 29 2 (Tex . Crim . App . 1990).

Most constitutional claims are subject to wai ve r unless timely presented to the tr ial cour t. Thorntonv. State , 994 S. W.2d 845, 854 n.5 ( Tex. App.—For t Worth 1999 , pet. ref’d); Haw

kins v. State , 964 S.W.2d 767, 769 (Tex. App.—Beaumont 1998, pet. ref’ d) (including confrontation clause err

or). An accuse d must lodge a proper and timely objection at trial on the lackof confrontation, due p rocess, or due course of law in orde r to preserv e error. Phelps v. State , 999 S.W.2d 512, 518 (Tex. App.—Eastland 1999, no pet.) (citing Holland v. State , 802 S.W.2d

696, 699 -700 ( Tex. Crim. App. 1991); Briggs v. State , 789 S.W.2d918, 924 (Tex. Cr im. App. 1990)). Thus, a ppellant’s failure to present any allege d confrontation clause
error to the trial court re sults in aproc ed ur al de fa ul t o f t hat c la im. Jenkins

v. State , 912 S.W.2d 793, 81 5 (Tex . Crim . App . 1995).8 Rule 608 (b) provides: Specif ic instan ces of th e cond uct of a witn ess, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be inquired into oncross- examination of the witness, or proved by ext rinsic e viden ce. Tex. R . Evid . 608(b).

9 The testimony related t o a specific ac t of the witn ess’ s conduct—hindering apprehension

o f Eric Chaney by being untruthful concer ning his whereabouts. The misdemeanor offense resulted in a defer redadjudication disposition that was later dischar ged prior to the instant trial. There w as no conv icti on to be used for im peachm ent. SeeTex. R. Evid. 609.

10 Seegener

ally 1 Ste ven G oode, O lin G uy W ellbo rn III, & M . Michael Sharlo t, Guide to the Texas Rules of Evidence: Civil and Criminal § 613.6 , at 651 (Texas P ractice 1993). 14 Prior to Hesskew’s cross -examination, appellant ’ s counsel indicated that he wanted to inquire about her “one time lying on [Eric Chaney’ s] be half a nd being a

rre sted f or it and trying to hide Eric.” The trialcourt suggested that a ppellant’s counsel was attempting to impeach wit h a speci fic inc ident of cond uct, w hich w as not p ermi ssible
. SeeTex. R . E vid
. 608(b). 8 The trial court held that the testimony could not be u sed for impeachment purposes under Rul e 608(b ). 9 Appellant did not advance any ot her theo ry of impeachment supporting the admission of the testimony.

Neverthel ess, appellant, in addition to the now rejected constitut ion al cl ai m, advances for

the first time the claim that the testimony was admi ssible under a different theory of im peachm ent. SeeTex. R . Evid . 613(b). Rules 608(b) and 613(b)serve distinct and dif ferent purposes in the im peachmen t of witn esses. 10 Any trial objectio n base d on Rule 608(b) does not preser ve error for review under R ule 61 3(b). Dixon v. Sta te , 2 S.W.3d 263, 273 (Tex. Crim. App.15

1998) (op. on reh’ g). Appellant has not pres erved any error for re view under Rule 613(b). The third point of error is overr uled for all the reasons stated.

Rule 4 04(b) In the fo ur

thpo in t o f e rr

or , a pp el lant cl ai ms that the “trial court er red in ref using to admit pr ope r e vid enc e pu

rs uant to T ex. R. Evid. 404(b) co ncernin g Eric Chan ey.” W e are toldthat “[ a]ppe llant was no t permitted t o introd uce evid ence tha

t E ric w as on parole f

or an assault ive offen se.”

Prior to Chaney’s testimony, the prosec utor raised the que stion of whether appellant could

inqu ire int o the n ature of a n offense m ade th e basis o f a finding of delinquent conduct that resulted in Chaney’s com mitm ent to the T exas Yout h Counci l. The prose cuto r objectedthat the evidence would be irrelevant, but if relevant, ina dmissible underRul e 403. See Tex. R. Evid. 403. Appellant responded that the evidence was ad mi ssible under R ule 40 4(b). Tex. R. Evid. 404(b). Acknowledging that Chaney was not a victim nor a defendant, appellant urgedthat the evidence was admissible to show Chaney’s “intent” and the fa ct that Chaney was convicted of an

assaultive off

ense would support “the defense [contention] tha t he might have been invo lved.” The trial court sustaine d the State’s objection, but held that appellant co uld use other e videnceabout thejuvenile commitment.

The jury heard evidenc e that Chaney was comm itted to the Texas Youth Coun cil,
was released on par

ole to a half-way house, a bsconded, and was an

es ca pe e a t the ti me of the shooting. It was also shown that he was later arr ested a

nd retu rned to the Texas Youth Council. At the tim e of the trial, Chaney was again on par ole and living with his parents in Wyoming.16 To suppor

t the admission of the nature of the juvenile offens e, appellant relies upon Tate v. State , 981 S .W.2d 189 (T ex. Cri m. A pp. 199 8). Thi s relian ce is m isplac ed. Tate is distingui shable on the facts and the law . Moreover, R ule 609(d) provides:
Ev idence of juvenile adjudications is not admissible, e xcept for proc eeding s c on ducted pursuant to Title III , Family Code, in which the w itness is a par ty, under this r ule unless required to be admitted by the Constitution of the United States or Texas.
Te x. R. Evi d. 60 9( d) . A pp el lant do es no t r el y u

po n a co ns ti tuti on al ba si s f

or hi s c la im. A trial court has br

oad discretion in admitting orexcludin g evidenc e. Onlywhen
a trial c ourt ha s abused its di scretio n shoul d a re viewing court conclude that the ruling was
erroneous. Montgomer

y v. State , 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1990) (op. on reh’g). Before evidence i s a dmissib le, it mus t be re lev ant as def ine d by Rule 401 . Te x. R
. Evid. 401. Whether evidence of “ other crimes, wrongs or acts” has relevance apart f rom character confo rmity, as requir

ed by Rule 404(b), is also aquesti on for th e trial court. Moreno
v. State , 944 S.W.2d 685, 691-92 (Tex. A pp.— Hou ston [14 th D ist.] 19 97, aff’d , 22 S.W.3d 452 (Tex. Cr im. App. 1999) . The trial cour t didnot abuse its discretion in excluding the evidence in qu estion
. See also Tex. R . Evid . 103(a).

If it could be argued therewas error in the e xclus io n of the evidence of the underl ying basis of C haney ’s juvenile delin quenc y, it w as non-co nstit utio nal error. SeeTex. R. App . P. 44.2
. Appellant’ s subs tantial r ights were not affected gi ven all the ci rcumstances. The on ly eviden ce excluded was th e fac t that Chane y was char ged in juvenile cour

t with a n assaultive off

ense. The four

th point of error

is overruled.11 Rule 404 (b) provides: OtherCrimes , Wrongs or Acts . Evidence of other crimes, wrongs or

acts is not ad mi ssible to prov e the ch aracter of a pers on in order to show action in conformity t herewith. It may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absenceof mistake or accident, provided that

upon timely reque st by theaccus ed in a cr iminal case , re asona

ble notic e is given in advance of trial of inte nt to introd uce in the S tate’s case-in- chief such evidence other

than that arising in the same trans action. Tex. R . Evid . 404(b). 17 Claim Not Pr

eserve d In point of

error fi ve, ap pell ant urge s that the trial court er red in admitting “evid ence of ex traneou s bad act s of appel lant w hen th e Stat e did n ot id entify the purpose for which it was o ffered as requ ired by Tex. R . Evid . 404(b).” In the six th po int o f error, appellant cl ai ms that the “trial court er red in failing to require theState to identify the purpose f or which it was offering the e xtra neous evidence.” Although diff erent recor

d references arecited, appellant states t hat th is lat ter co ntention isthe same asthe fif th point, although diffe rently stated. Rule 404(b) 11 does not express ly set forth the pr ocedure desc ribedby appella nt. He relies upon Montgomery, which state s in per tinent pa rt: When a party attempts to adduce evidence of “other crimes, wrongs or

acts, ” in order to preserveerror

on appeal, the opponent of that evide nce must object in a timely fash ion. . . . Once t hat complaint

is lodged, it is incumbent upon the proponentof the evidence to satis fy the trial court that the “other crime, wrong, oract” ha s rel evanceapart from its tendenc y “to prove chara cter o f a person in order to sho w th at he ac ted in conform ity t herew ith.” R ule 40 4(b), supra. The trial court should honor any re quest by the opponent

of the evidence for articulation18

into the record of thepurpos e for w hich evi dence is either offered by the proponent or ultima tely admitted by th e trial court.
Id ., 810 S.W.2d at

387 (e mphasis a dded) ; see also Masse y v. State , 933 S.W.2d 582, 586 (Tex. App .—H ousto n [1st D ist.] 19 96, no p et.).

Appellant, under

point of error

five, has failed to di rect our a ttent ion t o the rec ord where his request was made and where the trial court failed to require the State to identify the purpose for wh ich th e evid ence w as bein g offered. T he sing le cit ation to th e record t o suppo rt his contention under the fif th point does not refl ect a R ule 40 4(b) obj ectio n or a requ est. W e are only generally ref

erred to “var

ious bench conferences and hear ings outside the jury’ s presenc e when Appellan t’s 404(b) objection was discussed.”This does not comply with our briefing rules. SeeTex . R. Ap p. P. 38.1 (h). The right to appell ate re view extendsonly to complai nts made in accordance with our rules of ap pella te proce dure. Burks v . State , 876 S.W.2d 877, 901 (T ex. Crim. App. 1994). Nothing is presented for review if appellant does not dire ct the appella te court to the specif

ic portion of the re cord where the objectionor reques t was made and
an adverse ruling obtai ned. Lape v. State , 893 S.W.2d 949, 953 (Tex. App.—Houston [14 t h Dist.] 1994, pet. ref’d) (citing Cook v. State, 611 S .W.2d 83, 87 (T ex. Cri m. A pp. 198 1)).

Under the sixth point of error, appe llant doe s make reference to a recor d page whe re a request was made. In t he middle of a r

unning co lloquy, a

ppellant ’s tr

ial couns el did mention that the S tate had not identified t he purpose for which the firear ms were being offered and reque sted tha

t t he tria l court as k the S tate t o artic ulate the pu rpose “for t he record .” App ellan t’s argum ent, ho wev er, continued unabated. Other matters were raised and pur sued. App ellan t’s counsel never menti oned the request again nor obtained an adver se ruling in order19

to preserve erro r, if any. SeeTex. R. App
. P. 33.1 (a). The fi fth and sixth poin ts of error are overruled. Non-Compliance with Briefing Rules

In the seventh poin t of er ror, appella

nt conten ds that t

he “trial cour

t erred in failing to identify the fact of consequence f

or which it received the extra neous evidence.” The appellate brief stat es: Appellant asse rts th e same principlesof law dis cuss ed inpoints of error five and six, sup ra , requirethis Court to also find that the trial cour t erred in f

ai ling t o ident ify the fact of c on sequence for which it received the extraneous of fense. App ellan t refers thi s Cou rt to t he anal ysis in those p oint s of error.
This is the sum total of point of error seven. It is not adequately briefedand pres ents noth ing for rev iew
. Law ton v
. State , 913 S.W.2 d 542, 5 54 (Te x. Cri m. A pp. 199 5); Foste r v. State , 779 S .W.2d 845, 86 4 (Tex . Crim . App . 1989); Turro v. State , 950 S.W.2d 390, 401 (Tex. App.—Fort Worth 1997, pet. ref ’d). Point of error s even is overr uled.
Lack of Rel evancy An alys is In the eighth pointof error, appellant claims that the “trial court er

red in failing to conduct a complete relevancy analysisupon 404(b) objection by the de fense.” Appellant does not claim that he made a relevancy objection, but contends that when aRule 404(b) objection is made it is inclusive of “a Rule 402 objection.” See Rankin v. State , 974 S.W.2d 707, 709 (Tex. Crim . App . 1996).20 By a record page reference, appellant cit es us to a pret ri al hearing on the suppress ion motion where hiscounse l made mention of Rule 404(b) in

his argument to the trial court. We, however, f

ind no objection on the b asis o f Rule 404 (b), nor was th e rulethe bas is of the moti on to suppress evidenc e. Moreover, if therewas a pr etria l Rule 404(b) obje ction to evidence of “pillowcases draped over firear ms,” appellant has not pointed it out, and we have not found, where appellant obtained an a dverse r uling on the obje ction so as to preserve erro r. SeeTex. R . App . P. 33.1 (a)(2)(A). Further, appe llant has not informed us what evidence was introduced pretr

ial over his objection, if

any. The eighth point of error is overr uled.
Failure to Give Proper

Notice In the ninth

point of error , appellant urges that the “trial court er red in admitting,
over appel lant’s objection, extraneous bad acts of appellant when the State failed to give proper notice under

404(b) .” I t is importa

nt to keep in mind the natu re of the actsclaimed to be extraneous an d bad, th e objection made, the trial court’ s ruling, and the evidenc e, if any, introduced over objection.

Appellant tell s us in h is brief t hat the o bjection was addressed to the pr oposed testimony of of

ficer s that, when they ex ecuted a search warrant at the house where appellant lived with his mot her and brother, they found i n a closet tw o pillow cases draped over firearms. Appellant claims that this proposed testimony concerned an extra neous bad act onhis part and was not included in the State’s written notices of intent to us e extraneous bad a ct evidence.

Appellant directs our a

ttention to an objection to the lack of notice of theproposed testimony made during the pretrial hear ing on the suppress ion motion. No ruling w as obtained.12 The record reflects that cer tain photograph s of gun s and the pillowcases had been given by the State to ap pellant a reasonabl e tim e before trial althoug h these items were not listed in the Sta te’s notices of intent to introduce ex traneous bad acts. 21 The matter was raised again afte r the selection of the jury. Again, no ruling was obtained. During trial when Det ective Curtis began to testify about the s earch, the jur y was removed. Afteranoth er hearin g, the t rial co urt ultim ately overruled the Rule 404(b)notice objection stating:
I think t h e Court’ s going to overr ule the ob

jection a nd let the offi cer te stify

to these and how they were found and whe re they w ere drape d . . . the cour t’s s till struggling with the 404(

b), b ut it’s going to overrul e the obje ction to tha t . . . the court finds the State’s notice in that they [defens e] have b een gi ven the photos and the State’s testimony is suff icient even thought the co urt is aw are that it wasn’t listed. 12 (Foot note a dded.)

Therea fter, how ever, the trial court sus tained the objection to State’s exhibit no. 54 (a phot ograph displ aying the firea rms an d a kni fe foundin the hous e) and to State’ s exhibi t
no. 55 (a photograph of a bedroo m and a dog an d a shotgun leaning against the wall or the furnitu re). The trial court overr uled theobj ec tio n to Sta

te ’s ex hib it n o. 53 ( a p hot ogr ap h of two light-colored

pillowcases on a flat surfac e). After the jury retur ned, State’s exhibit no. 53 was
nev er offer ed

int o e vid en ce , a

nd n o of fi ce r t es tif

ie d be fo re thejur

y th at in a se ar chtwo pillowcases were fo und dra ped ov er tw o firearm s. Und er t he record w e find n o merit in appel lant’s “lack of notice” contention. We need not address the State’ s claim of a procedural defau lt that a ppell ant m isdirec ted hi s origi nal requ est for n otice of extraneous matters under Rule 404(b) to the trial cour t and not to the Stat e as requi red. See Mitchell v. State , 982 S.W.2d13 A ppellant has not tied his point of err or in any way to the cross- examination of appel lant’s moth er and the adm ission of State’s exhibi ts nos. 68 and 69 without further objection s. 22 425, 426 n.1 (Tex. Crim. App. 1998). Further , we need not consider whether Rule 404(b) was inapplic able because the firearms and two pillowcases found in the searc h were not s hown to be connected to appellant or the cr ime, and thus were not evidence of an extraneous offense or bad act as co ntem plate d by t he rule. See Lock hart v. Sta te , 847 S.W.2d 5 68 , 5 73 (T ex . C ri m. App. 1992). The ninth point of error is overr uled. 13
A Rule 403 Cl aim In the tenth

and elev enth point s of error, appe llant claim s that t he tria l court erred in admitting evidence of appellant’s bad actswhen the proba tive va lue of such evidencewas substa ntiallyoutweighed by the dan ger of unfair prejudice, a

nd in doing s o, did no t conduct a proper ba lanci ng test under R ule 40 3. SeeTex. R. Evid. 403.

Strangely, the only evidence men tion ed in a ppell ant’s brief is State’ s exhibit no. 54 (photograph of f

irearms found in the housesearched) . A defense trial objec tion to the exhibit
was sustained. While the exhibit is in the record, it was never admitted into evidence before the jury. Moreover, appellant never points out in the record where his particular Rule 403 objection to the exhibit was made. Appellant relies upon a statement of the trial court in over ruling an “objection based on the search w arrant,” that includ ed the remarks “and doe sn’t find tha t it should be exclu ded unde r 403 f or unf air prejudicial value.” The trial court had earlier refuse d to admit State’s exhibit no. 54 into evidence. It is not clear that the trialcourt’s later remarks23

were addresse d to State’s exhibit no. 54. The tr ial court’s remarks may have been gratuitous at the time they were made.

The trial c ourt must c onduct a Rule403 balan cing t est, if requ ested. Santellan v. State , 939 S.W.2d 155, 169 (Tex. Crim. App. 1997 ); How land v. State , 966 S.W.2d 98, 103 (Tex. App.—H ouston [1st D ist.] 19 98), aff’d., 99 0 S .W .2 d 2 74 (T ex . C ri m. App. 1999) . It ne ed not, how ever, condu ct a form al heari ng or eve n announc e on the record that it hasmentally conductedthis b alanci ng test . Yates v. State , 941 S.W.2d 357 , 367 ( Tex. App.—Waco 19 97, pet
. ref’d). If the tri al cou rt did i n fact ov errule a R ule 40 3 obj ectio n, the t ri al c ourt ne cess arily conductedthe ba lanci ng test by con siderin g and o verruli ng th e obje ction
. Poole v . State , 974 S.W.2d 892, 897 (Tex. App.—Austin 1998, pet. ref’d). W e find n o m erit in appel lant’s tenth and eleventh points of er ror. They are overruled.

Jury Argum ent Lastly, appel lant c laim s that t he tri al c ourt erre d in overruling his motion for mistrial based on improper argument by the prose cutor outside the re cord.

At the guilt/innocence s tage of the trial during the jury ar gument of the prosecutor, the record reflects: [Prosecut or]: You also heard the tes timony -- and I fi nd it -- I fin d it

interesting, and I hope youdo to o, that Mr. Turne r finds A rturo Ma lagon ’s story si lly. Because he encourage d Arturo Malagon not to testify. MR. TUR NER [DefenseCounsel] : I obje ct to that. MS . CA SN ER [Prosecut or]: Y ou hea rd the t estim ony of --.24

THE COURT: Wha t’s -- wh at’s -- MR. TURNER: I ask

for a n instr uction on t

hat. THE COURT: What’s the objection? MR. TURNER: I object to her insinuating that I ever told a witness to lie, and

I object to her going into facts outs ide the r ecord. There ’s no evidenc e of tha

t. MS. CASNER: It’s a reason able i nference, Y our H onor. THE COURT: Okay, the jurors ar e instructed

that your verdict must be based solely on the evidence that yo u obser ved and h eard i n this courtr oom together

with any reasonable inf erence. I think we should sustain the objection. MR. TURNER: Move for a mistrial. THE COURT: That request will be denied. MS. CASNER: You heard the testimony of Arturo Malagon. That he met with

Mr. Turne r last F riday, t he Fr iday before tr ial started. And when asked i f M r. Tur

ner ev er exp lained to him that “Hey, if you don’t testify, if

you refuseto testify, the State may not have enough evidence against your buddy, Carlos Soto, t o convict him.” He made that statement to Arturo Malagon. You m ake the inference. You decide w het her that encou rages A rturo Malagon to get up on the stand and tell the truth or dis courage hi m. And w hy wou ld that st at eme nt be m ade to him by M r. Turne r. To the rephrased a

rgument there was no further objection. Proper jury ar gument normally

falls within one of four area s: (1) s umm ation of the evidence; (2) r

easonable deductions f

rom the evide n ce; (3) response to argument of opposing counse l; and (4) a plea for l aw en forcem ent. Guidry v. State , 9 S.W.3d133, 154 (Tex. Cr im. App . 1999); Wilso n v. State , 7 S.W.3d 13 6, 147 ( Tex. Crim. App. 1999); Dinkins v. State ,25

894 S.W.2d 330, 357 (Tex. Crim. App. 1995). Evenwhen an argument exce eds thepermiss ible bounds o f thes e are as, such will not co nstitutereversible error unless, in light of the record as a whole, the argument is extreme or man ifestly im proper, vi olati ve of a m andat ory statute, or injects new facts harm ful to t he accu sed. Todd v. State , 598 S. W. 2d 28 6, 29 6- 97 (T ex . C ri m. App. 1980); see also Guidry , 9 S.W.3 d at 154; Allridge v . State , 762 S.W.2d 146, 155 (Tex. Cr im. App . 1988). The rem arks m ust hav e been a wil lful an d calcu lated effort on t he part of the prosecution

to deprive the accused of a fair and im partia l trial
. Cantu v. St ate , 939 S.W.2d 627, 633 (T ex. Cri m. A pp. 199 7).

In the instant case, on c ross- examination of the co-defendant Malagon, appel lant’s counsel elicited from M alagon that Malagon had met w ith police officer s and the prosecutor and the m eeting w as recorded. The record then reflects: Q: And you met with me and an inv estiga tor abo ut a week ago , cor rect? A: Yes, si r. Q: And I ask ed you if

I could recor d it, cor rect? A: Yes, si r. A: And you declined? A: Yes, si r.

Subseq uen tly, on re-dire ct examination, the prosecutor e stablished that Malagon had met with her and with police officer s and had not beenthreatened. The record then reflects:26

Q: And you m et also wit h De fense A ttorne y, M r. Turner. A: Yes , ma ’a

m. Q: Did he ever sugges t to you that if you chose to ref use to testify that your buddy , Carlo s Soto , mi ght g et off? A: I don’t remember, no. Q: You don’t remember that? A: No. Q: Did he ever su ggest t o you t hat if y ou di dn’t te stify t hat th ere was a good chance he m ight get off. A: Yes. MS. CASNER: No oth er questions.
This testimony was n ot clarified, rebutt ed, or otherwis e challe nged. The prosecutor’ s jury argument was substantiated by the record. It was proper f or the prosecution to summarize the evide n ce and d raw reaso nable deduc tion s and in ferences th erefrom
. See Guidry, 9 S.W.3d at 154. While appellan t obj ected and reques ted an instruction, he did not obtain an instruction to the jury to disregard the argu men t. Mo reover, the rephras ed argument appar entlysuitedappellant as he m ade no further ob jecti on. Gardne r v. State , 730 S.W.2d 675, 698 (Tex. Crim. App. 1987). Under the circumstances , it cannot be said thatthe argument was “outsid e the r ecord” as cl aimed by appe llant.

Forthe fir st time on app eal, a ppellant contendsthat th e prosecutor in her argument was st riking at app ellan t over t he shou lder of h is coun sel. See gen erally 42 George E. Dix & R obert O. D awso n, Criminal Practice and Procedure § 37.61, at 596-97 ( Texas Practice27

1995). Appellate co urts h ave sh own specia l concer n about jur

y argu ments that c onstitute uninvited and unsubstantiated accus ations of improper con du ct dire cted at a defend ant’s attorney. Gomez

v. State , 704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985 ); see also Wilson v. State , 938 S.W.2d 57, 59 (T ex . C ri m. App. 1996). Here, however, theargument is supported by the record. Further, this c omplaint on appeal does not comport with any trial objection a n d pres ents noth ing for rev iew
. Turner v. State , 805 S .W.2d 423, 43 1 (Tex . Crim . App . 1991); Skillern v. State , 890 S.W.2d 849, 859 (Tex. App.—Austin 1994, pet. ref ’d). An objection stating one legal basis may not be used to sup port a d ifferent l egal t heory o n appe al. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). The trial cour t did not abuse its discre tion in overruling the motion for a mistrial. Point of error twelve is over ruled. The j udgm ent is a ffirmed
.

John F . Onion, Jr., Justice Be f ore J us ti ce s K i dd, Ye akel

an d O ni on * Af fi rmed File d: January

19, 2001 Do No t Publis

h28 * Bef ore Joh n F. On i on , J r., Pre si di n g J udge (re ti re d) , C our

t of Cr i m i n al A pp ea l s, si tt in g b y ass i gnm en t. SeeTex . Gov’ t Code A nn . § 74.00 3(b ) (We st 1998 ).