No. 01-10-00317-CR
Opinion issued July 7, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Case No. 1223809.
Panel consists of Chief Justice RADACK and Justices SHARP and BROWN.
SHERRY RADACK, Chief Justice.
A jury found appellant, Haywood Chambers, guilty of aggravated robbery, found a felony enhancement true, and assessed punishment at 30 years' confinement. In two points of error, appellant contends that he is entitled to a new punishment hearing (1) because the evidence at punishment was insufficient to show that appellant committed an extraneous offense, and (2) so that appellant can present mitigating evidence. We affirm.
BACKGROUND
As Noe Villarreal was walking up to the front door of his house, appellant approached him with a gun. Appellant forced Villarreal into the house, then took his wallet, car keys, and Blackberry phone. Appellant then forced Villarreal to walk with him through the house as appellant looked for other things to steal. After forcing Villarreal to disconnect a television, appellant shut Villarreal in a closet. When Villarreal later left the closet, appellant and a green Chevy Blazer that Villarreal had noticed earlier were both gone. Villarreal later picked appellant out of a photographic line-up. EXTRANEOUS OFFENSE
In the punishment phase of the trial, the State presented Donte Hall, who testified that his sister, Nekisha, was walking to work when he decided to catch up with her and give her a ride. Nekisha told Hall that a man in a nearby green SUV had been trying to pick her up. As Hall drove past the green SUV, he told the man inside to leave his sister alone. The man in the SUV followed Hall, pulled over next to him, and fired a gunshot that grazed Hall's leg. Hall later identified appellant as the man in the green SUV. On appeal, appellant contends that this extraneous offense evidence was inadmissible at punishment because it was not proved beyond a reasonable doubt, as required by TEX. CODE CRIM. PROC. ANN. art. 37.07, sec. 3(a)(1) (Vernon Supp. 2010). The State responds that appellant has not preserved this issue for our review. We agree. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling he desires the court to make if the specific grounds are not apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A). It is well established that the ground of error presented on appeal must comport with the objection raised at trial; otherwise nothing is presented for review. Crocker v. State, 573 S.W.2d 190, 205 (Tex. Crim. App. 1978); see Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding that point of error on appeal must comport with objection at trial); Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (stating that appellate court cannot reverse on legal theory not presented to trial court by complaining party). At trial, appellant never argued to the trial court that the extraneous offense was inadmissible under article 37.07, sec. 3(a)(1). Instead, appellant argued that the extraneous offense was inadmissible under Texas Rule of Evidence 403. Because appellant did not give the trial court the opportunity to consider the inadmissibility of the evidence for failing to comply with art. 37.07, sec. 3(a)(1), he may not now complain about it on appeal. We will not reverse a trial court's evidentiary ruling on a theory of admissibility or inadmissibility not raised at trial. See Martinez, 91 S.W.3d at 336; Kuecker v. State, No. 01-07-00016-CR, 2008 WL 1747692, at *4 (Tex. App.-Houston [1st Dist.] Apr. 17, 2008, no pet.) (mem.op.). Because his objection at trial differs from his complaint on appeal, appellant has failed to preserve error. Thomas, 723 S.W.2d at 700. We overrule point of error one. MITIGATING EVIDENCE
In point of error two, appellant argues that the Eighth Amendment of the United States Constitution requires "a remand for a new punishment hearing . . . so that mitigating evidence, if any, can be presented and considered." Relying on Graham v. Florida, ___U.S.___, 130 S. Ct. 2011 (2010), appellant argues that "[t]his Court should hold that a reviewing court must examine a particular defendant's own criminal conduct as well as aspect of his `character' which might be mitigating," and that "trial courts should make that review possible by requiring defendants to present whatever mitigating evidence they might have." Essentially, appellant is arguing that Graham requires trial courts to implement a procedure for ensuring that any mitigating evidence is offered so that a defendant's punishment may be individualized. However, Graham is distinguishable from the present case. Graham involved a juvenile defendant who violated his probation by committing a home invasion robbery, possessing a firearm, and associating with people engaged in criminal activity. Graham, 130 S. Ct. at 2018-19. The trial court held a sentencing hearing and considered a punishment range of five years' confinement to life without parole. Id. At the hearing, a presentence report ["PSI"] prepared by the Florida Department of Corrections recommended a departure sentence of four years. Id. The trial court also considered a letter written by Graham expressing remorse and promising to refrain from crime. Id. at 2020. In announcing its sentencing, the trial court noted that Graham had a strong family structure to support him. Id. Nevertheless, the trial court assessed punishment at the maximum — life imprisonment without parole. Id. The Supreme Court held that with respect to a juvenile offender who did not commit homicide, the Eighth Amendment prohibits imposition of sentence of life without parole and requires that a state give some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Id. at 2030. The Graham court did not "revisit the question of whether the Eighth Amendment mandates individualized consideration for a term of years sentence. Therefore, discussion of a constitutional rule regarding mitigating evidence is conspicuously absent from the decision. . . ." Welch v. State, 335 S.W.3d 376, 381 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd) (considering identical argument) (internal citations omitted). In short, Graham did not overrule Harmelin v. Michigan, 501 U.S. 957, 994-95, 111 S. Ct. 2680 (1991), which holds that the Eighth Amendment does not afford criminal defendants the right to produce evidence of mitigating circumstances when the state seeks punishment for a term of years. Graham held only that a juvenile convicted of a non-homicide crime could not face the second-most harsh penalty available — life without parole. Appellant is not a juvenile, thus Graham has no application. See Wilkerson v. State, No. 14-09-00024-CR, 2011 WL 1643567, *2 (Tex. App.-Houston [14th Dist.] May 3, 2011, no pet.) (holding Graham not applicable to non-juvenile defendant and concluding Harmelin still controlling authority). This Court has recently addressed the same issue in Fleck v. State, No. 01-09-00983-CR, 2011 WL 1632168 (Tex. App.-Houston [1st Dist.] April 28, 2011, no pet.). After deciding that Graham did not establish a constitutional rule regarding mitigating evidence, this Court noted that appellant had a statutory right to present mitigating evidence, but did not do so. Id. at *8 (citing TEX. CODE CRIM. PROC. ANN. arts. 37.07 § 3(a)(1)). The same is true in this case. We overrule point of error two. CONCLUSION
We affirm the trial court's judgment.