f* -

(Utfuri of Appeals

mttli Stsirtri of Okxas at Dallas

JUDGMENT

STEVIE DEWAYNE JONES, Appellant Appeal from the 265th Judicial District

Court ofDallas County, Texas. (Tr.Ct.No.

No. 05-90-01026-CR V. F88-81145-PR).

Opinion delivered by Justice Kinkeade,

THE STATE OF TEXAS, Appellee Chief Justice Enoch and Justice Baker

participating.

Based on the Court's opinion of this date, the judgment of the trial court is

AFFIRMED.

Judgment entered May 27, 1992.

edkinkeadIe

JUSTICE
Affirmed and Opinion Filed May 27, 1992

In The

(£ourt of Appeals

¥xfttf district of Okxas at Dallas

No. 05-90-01026-CR

STEVIE DEWAYNE JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court

Dallas County, Texas

Trial Court Cause No. F88-81145-PR ,

OPINION

Before Chief Justice Enoch and Justices Baker and Kinkeade

Opinion By Justice Kinkeade

Stevie DeWayne Jones appeals his conviction formurder. Following a jury trial, the

jury assessed punishment at thirty years' confinement in the state penitentiary. In nine

points of error, he argues that (1) the evidence isinsufficient to support his conviction and

(2) the admission of suggestive, pre-trial photographic lineups tainted the in-court

identification oftwo witnesses. He further argues thatthe trial court erred inadmitting (3)

the hearsay testimony of four witnesses and (4) evidence of extraneous offenses. Because
the evidence is sufficient to support Jones's conviction, the in-court identifications were not

tainted, and the trial court did not err in admitting the four witnesses' testimony under

exceptions to the hearsay rule and the extraneous offenses to show Jones's motive to kill

Graves, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL HISTORY

Yolanda Graves and Stevie Jones met and began dating in high school. After Jones

started buying Graves expensive presents and taking her on trips, Graves's father, W.D.

Johnson, asked her to move from his house. At this time, Graves also dated Jerry Wayne

Leffall, who is known as both "John" and "Chief."

The Leffall Shooting

At about 5:30 to 6:00 P.M. on March 6, 1988, Jerry Wayne Leffall took Frederick

Hunter to the grocery store to buy cigarettes. Leffall waited in the car as Hunter went into

the store to buy cigarettes. While Hunter was in the store, Jones drove up and parked

behind Leffall's car. Jones then got out of his car and walked to the driver's side of Leffall's

car. Jones asked Leffall if his name was "John." Leffall told him "no," and Jones fired at

him twice. Leffall laid on the seat of his car and pretended to be shot. Jones stepped back

arid started shooting again. Jones then got back into his car and shot at Leffall again before

he left. When he heard the shots, Hunter ran out of the store, opened Leffall's car door,

and saw that Leffall was not hurt.

The two then went to Hunter's house and called the police. Dallas Police Officer
Paul Rodgers responded and interviewed Hunter and Leffall about the shooting. He

testified that Leffall told him that he was dating Graves and that angered Jones. Leffall told

the officer where Graves lived. The officer then talked to Graves who said that Jones had

admitted to her that he had tried to shoot Leffall. The day after the shooting, Hunter

picked out Jones's picture from aphotographic array as the person who tried to shoot him.

The next day, Leffall also selected Jones's picture from the same photographic array.

The Graves's Shooting

Graves moved back into her father's house aweek or two before her murder. Soon

after Graves moved home, Johnson testified that Graves told him that she thought that

Jones would kill her and that she was scared of Jones. Graves slept on the living room

couch. On March 5, Graves's stepsister, Yolanda Rivers, overheard Jones and Graves

talking in the living room while she got something to eat in the kitchen. Jones told Graves

that he loved her and that she owed her love to him. Jones also reminded Graves of his

gifts to her. Graves then came into the kitchen, and Jones followed her. In the kitchen,

Graves told Jones that she was pregnant with Leffall's baby. Jones replied that he would

now kill Leffall.

On March 6, Jones spent the afternoon with Graves at her father's house. When

Graves went to the restroom, Jones took the clothes from her closet that he had bought for

her and left. Later that evening, Graves talked to her aunt, Patsy Henderson, on the phone.

Henderson said that Graves put her on hold for five to ten minutes while she answered her

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call waiting on the other line. Henderson said that when Graves switched back she was very

upset. Graves said that she had been speaking with Jones, and he said that he killed Leffall.

Henderson testified that Jones interrupted their telephone conversation again. When

Graves switched back to Henderson again, Graves told her that Jones said that if he could

not have Graves, then no one else would. Henderson begged Graves to come stay with her

because she feared what Jones might do. Henderson testified that Graves called again

around midnight to tell her that Jones had called her father and told him that he gave his

daughter syphilis. Graves told Henderson that she only talked to Jones because she wanted

to tell him that he was aliar. Henderson testified that she told Graves to quit answering

the phone because that is how Jones knew that she was at home.

Johnson and Rivers each said that they overheard Graves as she talked on the phone

with Jones. Johnson testified that he heard Graves tell Jones that she knew he tried to kill

Leffall, and that she was going to tell the police about the shooting and ask ajudge for a

peace bond to keep him away from her. Rivers testified that Graves also told Jones that

he should hurt her and not Leffall because she was the one that ended their relationship.

After the conversation on the phone ended, Graves told her father that Jones tried to shoot

Leffall. Johnson demanded that Graves not talk to Jones again. That same day Officer

Rodgers came to the Johnson house to interview Graves about the Leffall shooting. Officer

Rodgers testified that Graves told him that Jones had admitted to her that he had tried to

shoot Leffall.

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At about 3:00 A.M. on March 7, someone fired gunshots into the Johnson home

through the living room windows. The Johnson household ran into the room and found

Graves unconscious on the living room floor with six gunshot wounds and called the police

and an ambulance. When the police arrived, Graves was able to tell them that "Stevie" had

fired the shots. One of Graves's stepsisters told the police that "Stevie" was Stevie Jones.

The ambulance took Graves to the hospital, where she later died.

Lawrence Durham, the neighbor who lives two houses down from Johnson, testified

that he heard gunshots on the night of Graves's shooting. When Durham turned on his

porch light, he saw Jones run from Johnson's house toward his house, get into acar, and

leave the scene.

Dallas Police Detective Fred Milligan collected the physical evidence from the

shooting scene. He testified that the gunshots came through the living room windows and

that he recovered fifteen shell casings from the shooting scene. Detective Milligan said the

shots fired into the living room were fired in adownward motion towards the couch on

which Graves slept. He also said that the shots were not random, but were localized and

aimed toward the couch. Dr. Charles Petty, chief medical examiner for Dallas County who

performed Graves's autopsy, testified that Graves was not pregnant and that she died from

her gunshot wounds.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, Jones contends that the evidence is insufficient to support

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his conviction. Jones argues that the testimony of the State failed to establish his identity

as the murderer.

In determining the sufficiency of the evidence, we view the evidence in the light most

favorable to the verdict. Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.), cert,

denied, 112 S.Ct. 202 (1991). We must consider all the evidence, whether properly or

improperly admitted. Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988). We

determine whether any rational trier of fact could have found the elements of the offense

beyond areasonable doubt. Turner, 805 S.W.2d at 427. This standard applies in both direct

and circumstantial evidence cases. Id. In acircumstantial evidence case, the "reasonable

doubt" portion of the test is satisfied if the evidence excludes every reasonable hypothesis

except the appellant's guilt. Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App.

1983)(op. on reh'g).' Even if evidence presented at trial suggests innocence, the trier of

fact can find the defendant guilty. Castro v. State, No. 835-90, slip op. at 3(Tex. Crim.

App. January 8, 1992). The trier of fact is charged with the responsibility of resolving

factual questions. Id. In this process, atrier of fact may reject evidence and testimony that

suggests innocence. Id. The trier of fact is the sole judge of the witnesses' credibility and

can believe all or any part of the testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex.

Crim. App. 1984).

iooiI Th!Cu°Urt iS 3Ware °f thC C°Urt °f Crirainal APPeals °Pinion in Geesa v. Slate 820 SW2d 154 161 (t„ r • a

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The record shows that:

(1) Graves just before she died identified Jones as the person who shot her;

(2) Jones recently had threatened to kill Graves;

(3) Jones recently had tried to shoot Graves's other boyfriend, Leffall;

(4) Jones was familiar with the layout of the Johnson house;

(5) Jones knew that Graves slept on the living room couch;

(6) Jones knew Graves was at the Johnson house that night;

(7) Physical evidence showed that the shots were fired through the living room

window toward the couch where Graves slept; and

(8) After hearing gunshots, the neighbor, Durham, saw Jones run away from the

Johnson house.

Viewing this evidence in the light most favorable to the verdict, arational trier of fact could

have found beyond areasonable doubt that Jones killed Graves. Because the evidence is

sufficient to support Jones's conviction, we overrule Jones's first point of error.

EXTRANEOUS OFFENSE

In his second point of error, Jones contends that the trial court erred in admitting

evidence of an extraneous shooting. Jones argues that the Leffall shooting was unrelated

to any material issue in the case and its probative value is outweighed by its prejudicial

effect. In his seventh and eighth points of error, Jones contends that the suggestive pre-trial

identification procedures tainted Hunter's and Leffall's in-court identification of him as the

one who shot Leffall on March 6, 1988. He argues that the photographic procedures the
police used produced asubstantial likelihood of misidentification that amounts to adenial

of his right to due process. At apretrial hearing on the extraneous Leffall shooting, Jones

challenged the admissibility of the extraneous shooting and Hunter's in-court identification

of him.

Admissibility of the Offense

Generally, extraneous offenses are inadmissible. Williams v. State, 662 S.W.2d 344,

346 (Tex. Crim. App. 1983). To be admissible, an extraneous offense must be relevant to

amaterial fact issue, and the probative value of the evidence must substantially outweigh

the potential for unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 388-89(Tex.

1990)(op. on reh'g). To preserve error for an extraneous offense, the defendant must (1)

object that the evidence is extraneous under rule 404(b) and (2) lodge an additional

objection under rule 403 that the evidence's probative value is substantially outweighed by

its prejudicial effect. Id. Aparty that objects on the grounds of an extraneous offense

preserves error only on the trial court's relevancy determination. Id. Absent aclear abuse

of discretion, we will not disturb the trial court's decision on appeal. Montgomery, 810

S.W.2d at 390-91.

At the pre-trial extraneous offense hearing, Jones objected to the admissibility of

testimony involving the Leffall shooting on the basis that such testimony constitutes an

extraneous offense. Jones failed, however, to lodge an additional objection under rule 403

that the evidence's prejudicial effect outweighed it probative value. Because Jones failed

-8-
to object properly, he waived his right to complain on appeal about the prejudicial effect

of the extraneous offense. Therefore, this Court need only address the relevancy of the

shooting. The evidence of Jones trying to kill Leffall the day before Graves's death was

relevant to show Jones's motive for killing Graves-extreme jealousy that she was seeing

another man. Because the State introduced the offense to show Jones's motive for killing

Graves, the trial court did not abuse its discretion in admitting the evidence. We overrule

Jones's second point of error.

Admissibility ofIn-Court Identification Regarding the Extraneous Offense

Before setting aside a conviction based on an eyewitness identification at trial

following a pretrial photographic identification, the court must determine that the

photographic display was impermissibly suggestive and gave rise to asubstantial likelihood

of misidentification. Turner v. State, 614 S.W.2d 144, 145-46 (Tex. Crim. App. [Panel Op.]

1981). Absent clear and convincing evidence that the in-court identification is tainted by

improper pretrial procedures, the in-court identification is always admissible. Jackson v.

State, 626 S.W.2d 446, 448 (Tex. Crim. App. [Panel Op.] 1982). When the defendant

challenges a complaining witness's in-court identification, this Court must determine the

witness's ability to reconstruct an accurate independent image of the criminal wrongdoer,

in comparison with the defendant's in-court appearance. Id. If the totality of the

circumstances reveals no substantial likelihood of misidentification despite the suggestive

pretrial photographic identification procedure, then this Court will deem the identification

-9-
testimony reliable and therefore admissible. Madden , State, 799 S.W.2d 683, 695 (Tex

Crim. APP. 1990), cert, denied, 111 S.W.2d S.Ct. 2912 (1991). In assessing the x^

of the in-court identification, we weigh the following nonexclusive factors against the

corrupting effect of the suggestive identification procedure:

(1) The witness's opportunity to view the criminal at the time of the crime.

(2) The witness's degree of attention.

(3) The accuracy of the witness's prior description of the criminal.

(4) The level of certainty demonstrated at the trial confrontation.

(5) The time in between the confrontation.

Madden, 799 S.W.2d at 695.

Frederick Hunter

Hunter testified about the pre-trial identification procedures a, the extraneous

evidence hearing, a, the tria, court's photographic procedure hearing, and before the Jury.

The record shows that the trial court heard the following testimony:

0) e^cnX" tHe CrtaC fr°m e''8h' fce' ^ 'hr0U8h a*"» «*

(2) Hunter saw the photographic lineup the day after the shooting;

(3> stailafto°ST" HineUP C°ntainCd fiVe Photo«raP^ of males that were similar to Jones in height, weight, and hair type;

(4) pnotographs pBhoZpJh°snoe;mhra of many persons condi,iTwho have fiedthiss,eepy condition; <*>«* iin-p *«

•10-
(5) The police did not tell Hunter which photograph to pick;

(6) Hunter chose Jones's photograph; and

(7) Hunter identified Jones as Leffall's shooter without hesitation at trial and

testified that his in-court identification was based from memory.

Hunter had a clear opportunity to observe the shooting, identified Jones from a

photographic lineup shown to him one day after the incident, and never identified anyone

else as the shooter. Hunter testified he could have identified Jones without the aid of the

photographic lineup. Viewing the totality of the circumstances and likelihood of

misidentification, we conclude that the photographic display was not impermissibly

suggestive, that it did not give rise to asubstantial likelihood of misidentification, and that

Hunter independently identified Jones as Leffall's shooter. Because the pre-trial

identification was not impermissibly suggestive, the trial court did not error in allowing

Hunter's in-court identification. We overrule Jones's seventh point of error.

Jerry Leffall

Leffall testified at the court's photographic procedure hearing and before the jury.

The record shows that the trial court heard the following testimony:

(1) Leffall saw Jones for at least five seconds before Jones started shooting at

him; 6

(2) Leffall saw the photographic array two days after the shooting;

(3) Leffall saw the same photographic array as Hunter;

(4) The police handed the array to Leffall, asked him if he recognized anyone,

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and did nothing to suggest to Leffall that he should pick Jones's photograph;

(5) Leffall testified that the police did not suggest that he pick Jones's

photograph;

(6) Leffall chose Jones's photograph and positively identified Jones as the man

who shot at him; and

(7) At trial, Leffall identified Jones as the shooter and said he would never forget

Jones's face.

Leffall had a clear opportunity to observe his shooter, identified Jones from a

photographic lineup shown to him two days after the shooting, and never identified anyone

else as his shooter. Leffall knew Jones from aprevious encounter. Leffall identified Jones

in open court as the person who tried to shoot him. Viewing the totality of the

circumstances and likelihood of misidentification, we conclude that the photographic display

was not impermissibly suggestive, that it did not give rise to a substantial likelihood of

misidentification, and that Leffall independently identified Jones as the shooter. Because

the pre-trial identification was not impermissibly suggestive, the trial court did not err in

allowing Leffall's in-court identification. We overrule Jones's eighth point of error.

Although Jones contends that the trial court should have granted his motion to

exclude evidence of the extraneous offense and the two in-court identifications of him, this

Court concludes that the extraneous offense showed Jones's motive to kill Graves-extreme

jealousy that she was seeing another man and that the in-court identifications presented no

substantial likelihood of misidentification. Therefore, the trial court properly admitted

•12-
evidence of the extraneous offense to allow Hunter's and Leffall's identification ofJones as

the perpetrator of the extraneous shooting offense.

HEARSAY

In his third, fourth, fifth, and sixth points of error, Jones contends that the trial court

erred in admitting hearsay testimony that denied him the right of confrontation and crossexamination. The Fourth Amendment of the United States constitution, and article I,

section ten of the Texas constitution both guarantee the defendant the right to crossexamine witnesses, insofar as necessary to effectuate this right. Chambers v. Mississippi, 410

U.S. 284 (1973); Pointer v. Texas, 380 U.S. 400 (1965). This right is not absolute and can

be denied when the evidence bears the indicia of reliability to ensure the integrity of the fact

finding process. Dutton v. Evans, 400 U.S. 74 (1970); Coulter v. State, 494 S.W.2d 876 (Tex.

Crim. App. 1973).

Courts find the requisite indicia of reliability to be present when the hearsay

statement is shown to be an excited utterance. Sellers v. State, 588 S.W.2d 915, 918 (Tex.

Crim. App. 1979); Although the statements constitute hearsay, an excited utterance is an

exception to the hearsay rule. Tex. R. Crim. Evid. 803(2). An excited utterance is defined

as "a statement relating to astartling event or condition made while the declarant was under

the stress of excitement caused by an event or condition." Tex. R. Crim. Evid. 803(2). To

establish this exception to the hearsay rule, one must show:

(1) an occurrence sufficiently startling to produce aspontaneous and unreflecting

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statement;

(2) the declarant made the statement while influenced by the event; and

(3) the utterance relates to the circumstances of the startling occurrence.

Martinez v. State, 533 S.W.2d 20, 23 (Tex. Crim. App. 1976); Sellers, 588 S.W.2d at 918;

Woodward v. State, 696 S.W.2d 622, 626 (Tex. App.-Dallas 1985, no pet.). The focus of

the court is to determine the reliability of the statement in light of the cumulative effect of

the three requisites. Sellers, 588 S.W.2d at 918.

Rule 803(24) also creates another exception to the hearsay rule. It provides as

follows:

(24) Statement Against Interest. A statement which was at

the time of its making so far contrary to the declarant's

pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid aclaim by him against another, or to make him an object of hatred,

ridicule, or disgrace, that a reasonable man in his position

would not have made the statement unless he believed it to be

true. Astatement tending to expose the declarant to criminal

liability is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement.

Tex. R. Crim. Evid. 803(24).

Additionally, section 19.06 of the Texas Penal Code specifically allows the admission

of all relevant testimony concerning the killing in murder cases. Purtell v. State, 761 S.W.2d

360, 370 (Tex. Crim. App. 1988). Section 19.06 provides in part:

In all prosecutions for murder or voluntary manslaughter, the

state or the defendant shall be permitted to offer testimony as

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to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and

the deceased.

Tex. Penal Code Ann. §19.06(a) (Vernon Supp. 1992).

Finally, when one party offers part of aconversation, the whole conversation on the

same subject may be inquired into by the other party. Tex. R. Crim. Evid. 107. When

defense counsel pursues asubject that would ordinarily be outside the realm of proper

comment by the prosecutor, the defendant "opens" the door and creates aright of reply for

the State. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977); Austin v. State, 712

S.W.2d 591, 594 (Tex. App.-Tyler 1986, no pet.).

W. D. Johnson

In his third point of error, Jones's contends that the trial court erred in allowing

Johnson, Graves's father, to testify about what Graves said regarding the Leffall shooting.

The State argues that the testimony was properly admitted under the excited utterance

exception to the hearsay rule.

The record shows that:

(1) Johnson sat near Graves while she had aphone conversation with Jones;

(2) During the phone conversation, Graves appeared upset and excited;

(3) Johnson heard Graves tell Jones that she was going to report him to the

police; and

(4) Immediately after the phone conversation, Graves told Johnson that Jones

had told her that he had shot at Leffall.

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From this evidence, we conclude that the State established the necessary requisites to show

that Graves's statement to Johnson constituted an excited utterance. Because this excited

utterance is an exception to the hearsay rule, the trial court did not err in allowing Johnson's

testimony. We overrule Jones's third point oferror.

Yolanda Rivers

In his fourth point of error, Jones contends that the trial court erred in allowing

Rivers, Graves's stepsister, to testify about a conversation she heard between Graves and

Jones the day before the killing and about astatement she overheard Graves make to Jones

while she talked on the phone with him. The State argues that Rivers's testimony

concerning Graves's statements to Jones was admissible to show the extent of Graves's and

Jones's relationship. The State also argues that River's testimony about Jones's statements

to Graves during this same conversation were admissible as declarations against penal

interest. The State further argues that Graves's statements to Rivers made after Graves's

telephone conversation with Jones were admissible as excited utterances.

At trial, Rivers testified that:

(1) she heard Jones tell Graves that he loved her, wanted her back, and she owed

him her love;

(2) she heard Graves tell Jones that she was pregnant and that he was not the

baby's father;

(3) in response to this statement by Graves, she heard Jones tell Graves that he

would kill Leffall; and

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(4) wMe Graves was on the phone with Jones, she overheard Graves tell Jones

Statements (1), (2), and (3) are admissible undersection 19.06(a) ofthe Texas Penal

Code. These statements show the state of Jones's and Graves's relationship the day before

her death. Other evidence corroborates these statements to show that Graves no longer

wanted to date Jones. These statements also help to establish the motive for the killingJones's jealousy of Leffall.

Statement (3) is also admissible as astatement against penal interest. Tex. R. Cum.

Evd. 803(24). Tbis statement by Jones subjects him to potential criminal liability and

provides amotive for the Graves's killing. Areasonable man in Jones's position would not

have made the statement unless he mean, it. Other evidence corroborates this statement

that Jonesintended to kill Leffall.

Statement (4) is admissible as an excited utterance. The record shows that:

(1) Rivers sat near Graves while she had aphone conversation with Jones;

(2) During the phone conversation, Graves appeared upset and excited; and

(3) Rivers heard Graves tell Jones that he should hurt her and not Leffall.

From this evidence, we conclude that the State established the necessary requisites to show

that the statement Rivers overheard Graves make to Jones constituted an excited utterance.

Because the State showed that Rivers's testimony about statements (1) and (2) was

admissible under section 19.06(a), that her testimony about statement (3) was admissible

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under section 19.06(a) and as astatement against penal interest, and tha, her testimony

about statement (4) was admissible as an excited utterance, the trial conn did no, err in

allowing Rivers's testimony. We overrule Jones's fourth point of error.

Patsy Henderson

In his fifth poin, of error, Jones contends that the trial court erred in allowing

Henderson, Graves's aunt, to testify about two statements Graves made to her about the

Leffall shooting the day before Graves's death. The State argues that the statements

constitute excited utterances.

The record shows that:

(1) Jonesinterrupted the telephone conversation between Henderson and Graves;

(2) ^Ta?daIxciLed;med t0 ^ COnVerSati°n ^ HendCrSOn' GraVCS S0Unded

0) IGkTl"d Mm ediatt-,0 TdvHn nderS°n ^ J°neS Said "W* dead- lMled Wm, Ikilled him ... .Did Ikill your boyfriend? Did Ikill your married man?"

(4) Jones interrupted the telephone conversation between Henderson and Graves

again;

(5) Once again when Graves returned to her conversation with Henderson Graves sounded upset and excited; and nenaerson,

(6) Graves immediately told Henderson that Jones had told her that if he could

not have her, that no one else could have her either.

From this evidence, we conclude that the State established the necessary requisites to show

that Graves's statements to Henderson constituted excited utterances. Because the State

•18-
showed Graves's statements were excited utterances, the trial court did not err in allowing

Henderson's testimony. We overrule Jones's fifth point of error.

Officer Paul Rodgers

In his sixth point of error, Jones contends the trial court erred in admitting Officer

Paul Rodgers's testimony concerning statements Graves made to the officer the day before

her death. The State argues that Jones opened the door to the officer's statement.

Officer Rodgers testified that he investigated Leffall's shooting and that he

interviewed Graves in connection with the investigation. After ahearsay objection, he

testified that Graves told him that Jones had called her and admitted to shooting at Leffall's

car. Prior to this testimony, however, defense counsel had cross-examined Officer Rodgers

as follows:

Q. Officer, did Yolanda Graves say she saw Stevie Jones

shoot Jerry Leffall?

A. No, sir.

When the defense counsel questioned Officer Rodgers about his conversation with Graves,

he opened the door for the State to introduce the entire conversation to explain that Jones

had called Graves and admitted to her that he had tried to kill Leffall. Because the State

had aright to fully explain the matter opened up by the defense counsel, the trial court did

not err in overruling Jones's objection. We overrule Jones's sixth point of error.

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ADMISSION OF EXTRANEOUS OFFENSE EVIDENCE AT PUNISHMENT PHASE

In his ninth point of error, Jones contends that the trial court erred in admitting

evidence of unproven, extraneous offenses that have not resulted in final convictions. He

argues that section 3(a) of article 37.07 of the Texas Code ofCriminal Procedure precludes

the admission of specific conduct to show his character at the punishment phase of trial.

At the punishment phase, Jones testified that he never sold drugs for himself or

Jamaican drug dealers. After both sides closed, the State asked the trial court's permission

to reopen the case and allow LaTonya Peoples to testify and rebut Jones's testimony.

Peoples testified that Jones sold drugs for aliving and that she had visited his drug house

where she had seen Jones put marijuana and cocaine in a sink. Jones objected to the

State's reopening of the case and generally to People's testimony.

To preserve error for appellate review, one must make atimely and specific objection

that sets forth the grounds for the objection. Cisneros v. State, 692 S.W.2d 78, 82-83 (Tex.

Crim. App. 1985). Although Jones objected to Peoples's testimony at the pre-trial

extraneous offense hearing on the grounds that her testimony constituted an extraneous

offense, he failed to renew his objection at trial. At trial, he failed to state any grounds for

his objection. Because Jones failed to renew his objection or specifically object, he failed

to preserve error and presents nothing for this Court to review. We overrule Jones's ninth

point of error.

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We affirm the trial court's judgment.

Do Not Publish

Tex. R. App. P. 90

901026F.U05

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ED KINKEADE

JUSTICE