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

NO. 03-17-00162- CR

Mario Andreas C om pany, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NO. D-1 -DC- 16- 9040 95, H ONO RAB LE B OB P ERKI NS, JUDGE P RESIDING

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

Mario Andre as Company appea ls his convictions for ag g rava ted robber y
. See Tex.
Penal Code § 29.03. Company enter ed a plea of g uilty to both counts, the jury assessed punishment
at twenty -three y ear s’ imprisonment on eac h count, and the district c ourt rende red its judg ment of
conviction on both counts with the sentenc es running concur rently

. On appe al, Company contends that the district court e rre d by sustaining the State’ s objection t o exclude testimony about the leng th of sentenc e that Company ’s accomplice rece ived.
The State c ontends that Company failed to pre serve this appellate issue for revie w. We ag ree and will affirm the judg ments of conviction.BACK GR OUND 1 Company was char g ed by indictment with two counts o f ag g rava ted robber y committed ag ainst a husband and wife involving a violent home invasion. As a re sult of this incident, the husband stated that he suffe red a sever e head injury requiring 200 stitches and causing

perma nent scar ring , sever e jaw injuries, broken denture s, and an “orbital blowout” of his r ight ey e leaving him with perma

nent ey e damag e, including a pupil that will not dilate. During his hospital
stay , the hus band was trea ted by Dr. Timothy

McGe e, a pla stic surg eon. Dr. McGe e testi fied that
the husband had broken fac ial bones and multipl e fac ial cuts, at least eig ht major wounds to his head,
and trauma to his rig ht ey e. Dr. McGe e also testified that the husband was in critica l condition upon

arr ival at the hospital and would have died without tr ea t ment beca use of his blood loss and his
concussive sy

ndrome. Dr. McGe e further testified that as a result of the attack, the husband suffe red

perma nent n er ve damag e in his ey e. After trial, the jury found Company g uilty of both counts as char g ed in the indictment and assessed his punishment, and the district court rende red judgme nt in

acc ordanc e with the jury ’s ver dict. This appea l followed.

DISCUSSIO N Company contends th at the district court err ed by sustaining the State’s objection excluding him from introducing evidenc e of the sentenc e that his ac complice r ece ived for his role
in these ag g rava ted robber ies. Company complains specific ally that such information was rele vant

The fac ts are summarized from the testimony and exhibi ts admitted into evidenc e at trial. 1
2under Texas Rule of Evidence 401 and would have provided a useful co m p ar i s o n for the jury in

deciding the leng th of his sentence for his role in the of fense s. See Tex. R. Evi d. 401.
Be fore addre ssing t h e merits of Company ’s appellate issue, we must deter mine
whether he prese rved it for revie w. “[I ]t is the duty of the appellate courts to ensure that a claim is

prese rved in the trial court befor e addre ssing its merits.” Obella v. State , 532 S.W .3d 405, 407 (Tex.
Crim. App. 2017) (quoting W ilson v. State , 311 S.W .3d 452, 473 (Tex. Crim. App. 2010)); Ford v.
State , 305 S.W .3d 530, 532 (Tex. Crim. App. 2009) (stating that appellate courts should not addre ss merits of issue that has not b ee n p re s er v ed for appea l). To prese rve err or for appellate revie w, a
p ar t y m u s t m ake a t imely and specific objection at t he earliest pos sible opportunity and obtain an adver se ruling from the trial court, and the complaint on appea l must corr espo n d t o t h e objection
made at trial. Y

azdchi v. State , 428 S.W .3d 831, 844 (Tex. Crim. App. 2014); see Tex. R. App. P. 33.1(a)

. Her e, Company rec eived no adver se ruling on his objection. Du ri n g a bench
confe renc e, the following exchang e occur red and the court was never asked to rec onsider its ruling :

[P rosec utor]: Your Honor, it’s cl ea r fr o m the case law that it is

inappropria

te and not admissible mitigating evidenc e to talk about or include in punishment what a co-de fenda nt rec eived 2 beca use what this jury is being asked to d o is decide the punishment for this defendant for the actions that he committed and for the lifesty le that he has led, not for
a n y th in g c o mp a

r a tive to a co-de fenda

nt and the circ umstanc e s in the co-de fenda

nt’s case , and part of the rea son they do that

The State notes that during t ri al Company ’s acc omplice was ref err ed to as his “co- 2 defe ndant,” but the rec ord does not show that they wer e char g ed in the same char g ing instrument or prosec uted in the same le g al proc eeding

. 3is beca u s e o f t h is very case here wher e y ou have a situation wher e the co-de fendant may have g otten a very g ood deal beca use there was no evidenc e conne ct i n g him to the case , and that would just open up a whole new case of why did the co-de fenda

nt g et what he g ot and g oing throug h all o f t h at, and that’s not what we’ re here to decide

. What we’ re here to decide is what does this defe ndant dese rve.
I think both Evans v. State states very specific ally that eac h defe ndant should be judge d by his own conduct and participa tion by his own circ umstances, and it’s not releva nt the punishment of a co-de fenda nt and should no t be mitigating

. And then additionally in J oubert v. State, it looks like Florida had at some point allowed this informati o n in. The Court of Criminal Appea ls ree valuated what they thought was rele vant and mitigating in punishment, and they restate d very specific ally that they have reje cted that arg um en t and they don’t believe that that rela tes to either the defe ndant’s char acte r or his rec ord or the circ umstances of the offe nse, and it should have no be aring on the def

endant’ s own moral culpability

. THE COURT: All rig ht. Any arg ument from the De fense ? [Defense counsel 1]: Yo u r Honor, we would arg ue that I need an op p o rt u n i t y t o

look at my

own ca se law.

. . . . [Defense counsel 1]: What I would ask, Your Honor, is that we can move forwa rd sustaining that objection. We’ll look up the evidence or the case s over the brea

k. I f I find s omething, may be we can rehe ar it, but we’ re r eady

to move forwa

rd.
THE COURT: I ’m happy for y ou to continue to look for stuff. That’s fi n e.

All rig ht. At this time then I do find that the motion in limine of course was well put, and I do sustain the State’s objection to that particula

r statement. I do fee l that his testimony about his opinion as to what he thinks is appropr iate, I think he can g ive that, but I do sustain their objection to it being compar ed to any other pe rson’s sente nce.

4[Defense counsel 2]: I ’m sorry , J u d ge, j u s t s o t h at I ca n b e cl ea r an d s o Mr. Company can unde rstand.
THE COURT: Right. So, Mr. Company , y ou understand that I ’m g oing to le t

y ou testify , they had asked y ou a question as to what y ou thought was a fair sentenc e, y ou’ve said ten y ear s. You wer e starting to explain the rea sons why when the object ion was made. I think y ou can g o into those rea sons, but wha t y ou cannot say is any

thing compar ing y our sentenc e with [accomplice]’s sentenc e or any thing about what [accomplice] g ot or any

thing like that. You cannot g o into t h at

. Do y ou understand tha

t?
THE DEF ENDAN T: Yes, sir.
THE COURT: Okay

.

There was no adver se ruling to Company

. Thus, he failed to prese rve err or as to the
exclusion of the leng th-of-se ntence evidenc e. See Tex. R. App. P. 33.1(a) ; Y azdchi , 428 S.W .3d at
844. We overrule Company ’s appe llate issue.

CONCLUSION
We affir m the district court’s judg ments of conviction.

J eff Rose, Chief J ustice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med
Filed: Jul y

20, 2018
Do Not Publish

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