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 JUSTICEAffirmed and Opinion Filed May 27, 1992

In The (£ourt ofAppeals ¥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 ajury trial, the jury assessed punishment at thirty years' confinement in the state penitentiary. In nine points of error, he argues that (1) the evidence is insufficient to support his conviction and (2) the admission of suggestive, pre-trial photographic lineups tainted the in-court identification oftwo witnesses. Hefurther argues thatthetrial court erred inadmitting (3) the hearsay testimony of four witnesses and (4) evidence of extraneous offenses. Because

### the evidence is sufficientto supportJones's conviction, the in-courtidentifications werenot 

### 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'sjudgment.
FACTUAL AND PROCEDURAL HISTORY Yolanda Graves and Stevie Jones met and began dating in high school. AfterJones 

### 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 JerryWayne 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 Hunterwent into 

### the store to buy cigarettes. While Hunter was in the store, Jones drove up and parked behind Leffall's car. Jones then got outofhis carandwalked to the driver's side ofLeffall's
car. Jones asked Leffall ifhis name was "John." Leffall told him "no," and Jones fired at 

### him twice. Leffall laid on the seat ofhis carand pretended to be shot. Jones stepped back arid started shooting again. Jones then gotbackinto his car and shotat Leffall again before 

### he left. When he heard the shots, Hunterran out ofthe 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 toldhim thathewas dating Graves and that angeredJones. 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 ofJones. 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 ofhis 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 tookthe clothes from her closet thathe hadboughtfor herandleft. Laterthatevening, Graves talkedto heraunt, PatsyHenderson, on thephone. Henderson said that Graves put her on hold for five to ten minutes while she answered her

-3-

### callwaitingontheotherline. HendersonsaidthatwhenGraves switchedbackshewasvery upset. Graves said that shehadbeen speakingwithJones, andhe saidthathekilledLeffall. 

### Henderson testified that Jones interrupted their telephone conversation again. When Graves switched back to Henderson again, Graves told her that Jones said that ifhe could 

### not have Graves, then no one else would. Hendersonbegged Graves to come staywithher 

### 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 thattheyoverheard Graves as she talked on thephone 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 a judge 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 theJohnson house to interview Graves aboutthe Leffall shooting. Officer Rodgers testified that Graves told him that Jones had admitted to her that he had tried to

shoot Leffall.

-4-

### 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 thelivingroomfloorwith sixgunshotwounds and calledthepolice andan ambulance. When thepolice arrived, Graveswas able to tell themthat "Stevie" had 

### fired the shots. One ofGraves's stepsisters told the police that "Stevie" was Stevie Jones. The ambulance took Graves to the hospital, where she later died. 

### Lawrence Durham, the neighborwho lives two houses down from Johnson, testified that he heard gunshots on the night ofGraves'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 

### thathe 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 

### aimedtoward the couch. Dr. Charles Petty, chiefmedical examinerfor Dallas Countywho performed Graves's autopsy, testified that Graves was notpregnant and that she died from
her gunshot wounds.
SUFFICIENCY OF THE EVIDENCE 

### In his first point oferror, Jones contends thatthe evidence is insufficientto support

-5-

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

as the murderer. 

### Indeterminingthe sufficiencyofthe evidence, weviewthe evidenceinthelightmost 

### 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 offact could have found the elements ofthe offense 

### beyond areasonable doubt. Turner, 805 S.W.2dat427. This standardapplies inbothdirect and circumstantial evidence cases. Id. In acircumstantial evidence case, the "reasonable 

### doubt" portion ofthe test is satisfied ifthe 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 ifevidence 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 offact is charged with the responsibility ofresolving factual questions. Id. In this process, a trieroffact mayrejectevidence andtestimony that suggests innocence. Id. The trier offact is the solejudge ofthe witnesses' credibility and
can believe all or any part ofthe testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984).

iooiI Th!Cu°Urt iS 3Ware °fthC C°Urt °fCrirainal APPeals °Pinion in Geesa v. Slate 820 SW 2d 154 161 (t„ r • a

-6-The record shows that: 

### (1) Gravesjust 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 ofthe 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, sawJones run away from the Johnson house. Viewing this evidence in the light most favorable to the verdict, arational trier offact 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 oferror.
EXTRANEOUS OFFENSE 

### In his second point oferror, Jones contends that the trial court erred in admitting evidence ofan 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. Inhis seventhand eighthpoints oferror, Jones contends thatthe suggestivepre-trial identification procedures tainted Hunter's and Leffall's in-court identification ofhim as the
one who shot Leffall on March 6, 1988. He argues that the photographic procedures the

### police used produced asubstantial likelihood ofmisidentification that amounts to adenial 

### ofhis rightto due process. At apretrial hearing on the extraneous Leffall shooting, Jones challenged the admissibility ofthe extraneous shooting and Hunter's in-court identification

of him. Admissibility ofthe 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 ofthe 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 errorfor 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 

### ofthe extraneous offense. Therefore, this Court need only address the relevancy ofthe shooting. The evidence ofJones trying to kill Leffall the day before Graves's death was 

### relevant to show Jones's motive for killing Graves-extremejealousy 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 

### ofmisidentification. Turnerv. 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 acomplaining witness's in-court identification, this Court must determine the 

### witness's ability to reconstruct an accurate independent image ofthe criminal wrongdoer, 

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

### circumstances reveals no substantial likelihood ofmisidentification despite the suggestive pretrial photographic identification procedure, then this Court will deem the identification

-9-

## testimonyreliable andtherefore admissible. Madden , State, 799S.W.2d683, 695 (Tex 

## Crim. APP. 1990),cert,denied, 111 S.W.2dS.Ct. 2912 (1991). Inassessingthex^ of the in-court identification, we weigh the following nonexclusive factors against the corrupting effect ofthe suggestive identification procedure: 

### (1) The witness's opportunity to view the criminal at the time ofthe crime. (2) The witness's degree of attention. 

### (3) The accuracy ofthe witness's prior description ofthe criminal. (4) The level ofcertainty 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 

## evidencehearing, a, the tria, court'sphotographicprocedurehearing, andbeforetheJury. The record shows that the trial court heard the following testimony: 

## 0) e^cnX" tHe CrtaC fr°m e''8h' fce' ^ 'hr0U8h a *" » «* (2) Huntersaw the photographic lineup the day afterthe shooting; 

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

## (4) pBhoZpJh°snoe;mhra condi,iT fied s,eepy <*>«* iin-p *« pnotographs ofmany persons who have this condition;

•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 aclear 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 ofthe 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 ofmisidentification, 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 oferror. Jerry Leffall 

### Leffall testified at the court's photographic procedure hearing and before thejury. 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 ifhe recognized anyone,

-11-

### and did nothing to suggest to Leffall that he should pickJones'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 shooterand said he would neverforget Jones's face. Leffall had a clear opportunity to observe his shooter, identified Jones from a photographic lineup shown to him two days afterthe shooting, and neveridentified 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 andlikelihoodofmisidentification, we concludethatthephotographicdisplay

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 oferror. Although Jones contends that the trial court should have granted his motion to exclude evidence ofthe extraneous offense and the two in-court identifications ofhim, this Court concludes that the extraneous offense showed Jones's motive to kill Graves-extreme 

### jealousythat she was seeing anotherman and that the in-court identifications presented no substantial likelihood of misidentification. Therefore, the trial court properly admitted

•12-

### evidence ofthe extraneous offense to allowHunter's and Leffall's identification ofJones as the perpetrator ofthe extraneous shooting offense.

HEARSAY In his third, fourth, fifth, and sixth points oferror, Jones contends that the trial court erred in admitting hearsay testimony that denied him the right ofconfrontation and cross

### examination. The Fourth Amendment of the United States constitution, and article I, section ten of the Texas constitution both guarantee the defendant the right to crossexaminewitnesses, insofaras necessaryto effectuate this right. Chambersv. Mississippi, 410 U.S. 284 (1973); Pointer v. Texas, 380 U.S. 400 (1965). This right is not absolute and can 

### be deniedwhen the evidencebears the indiciaofreliabilityto ensure the integrityofthe fact 

### finding process. Dutton v. Evans, 400U.S. 74 (1970); Coulterv. 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 orcondition made while the declarantwas under 

### the stress ofexcitementcausedby an event orcondition." Tex. R. Crim. Evid. 803(2). To establish this exception to the hearsay rule, one must show: 

### (1) an occurrence sufficientlystartlingtoproduce aspontaneous andunreflecting

-13-statement; 

### (2) the declarant made the statement while influenced by the event; and (3) the utterance relates to the circumstances ofthe 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 ofthe statement in light ofthe 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 tobe true. A statement 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 ofthe Texas Penal Code specifically allows the admission ofall 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

-14-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 ofaconversation, 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 ofproper commentbythe prosecutor, the defendant "opens" the doorand creates aright ofreplyfor the State. Parrv. 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 oferror, Jones's contends that the trial court erred in allowing 

### Johnson, Graves's father, to testify aboutwhat 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.

-15-

### From this evidence, we conclude thatthe State established the necessaryrequisites to show that Graves's statement to Johnson constituted an excited utterance. Because this excited utterance is an exceptionto the hearsayrule, the trial courtdidnoterrin allowingJohnson'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 aconversation she heard between Graves and Jones the daybefore 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 ofGraves'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

-16-

### (4) wMe Graves was on the phone with Jones, she overheard Graves tellJones
Statements(1), (2), and(3)areadmissibleundersection 19.06(a)oftheTexasPenal 

## Code. These statementsshowthestateofJones'sandGraves's relationshipthe daybefore herdeath. Otherevidence corroborates these statements to show that Graves no longer wantedto date Jones. These statements alsohelp to establish the motivefor the killingJones's jealousy ofLeffall. 

### Statement (3) is also admissible as a statementagainstpenal interest. Tex. R. Cum. 

## Evd. 803(24). Tbis statement by Jones subjects him to potential criminal liability and provides a motivefor the Graves's killing. Areasonable man inJones'spositionwouldnot have made the statement unless he mean, it. Otherevidence corroborates this statement that Jones intended to kill Leffall. 

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

### (1) Rivers sat near Graves while she had a phone 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. 

### Fromthis evidence, we conclude thatthe State establishedthe necessaryrequisites to show thatthe statementRivers overheardGraves maketoJonesconstitutedanexcitedutterance. 

## 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

-17-

## undersection 19.06(a) and as a statementagainstpenal interest, and tha, hertestimony about statement (4) was admissible as an excited utterance, the trial conn did no, err in allowing Rivers's testimony. We overrule Jones'sfourth point oferror.
Patsy Henderson 

### In his fifth poin, oferror, Jones contends that the trial court erred in allowing Henderson, Graves's aunt, to testify about two statements Graves made to herabout the Leffall shooting the day before Graves's death. The State argues that the statements
constitute excited utterances.
The record shows that: 

### (1) JonesinterruptedthetelephoneconversationbetweenHendersonandGraves; 

## (2) ^Ta?daIxciLed;medt0^ COnVerSati°n^ HendCrSOn'GraVCSS0Unded 0) IGkTl"dMmediatt-,0TdvHnnderS°n^ J°neSSaid"W*dead- lMledWm, Ikilled him

... .Did Ikill your boyfriend? Did Ikill your married man?" 

### (4) Jones interruptedthe telephoneconversationbetweenHendersonandGraves 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 ifhe could not have her, that no one else could have her either. 

### Fromthis evidence, we conclude that the Stateestablishedthe necessaryrequisites to show that Graves's statements to Henderson constituted excited utterances. Because the State

•18-

### showed Graves's statementswere excitedutterances, the trial courtdidnoterrinallowing Henderson's testimony. We overrule Jones's fifth point oferror. OfficerPaul Rodgers 

### In his sixth point oferror, Jones contends the trial court erred in admitting Officer 

### Paul Rodgers's testimonyconcerning statements Graves made to the officerthe daybefore 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 thatJones had calledherand admitted to shooting atLeffall's


### car. Priorto this testimony, however, defense counselhad cross-examinedOfficerRodgers

as follows: Q. Officer, did Yolanda Graves say she saw Stevie Jones shoot Jerry Leffall?
A. No, sir. 

### When the defense counsel questioned OfficerRodgers about his conversationwith 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 oferror.

•19-ADMISSION OF EXTRANEOUS OFFENSE EVIDENCE AT PUNISHMENT PHASE 

### In his ninth point of error, Jones contends that the trial court erred in admitting evidence ofunproven, extraneous offenses that have not resulted in final convictions. He argues that section 3(a) ofarticle 37.07 ofthe Texas Code ofCriminal Procedure precludes the admission ofspecific conduct to show his character at the punishment phase oftrial. At the punishment phase, Jones testified that he never sold drugs for himself or Jamaican drug dealers. Afterboth 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 ofthe case and generally to People's testimony. Topreserve errorfor appellate review, onemustmake atimely and specificobjection 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.

-20-We affirm the trial court's judgment.

Do Not Publish Tex. R. App. P. 90 901026F.U05

-21- ED KINKEADE JUSTICE