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Abrego v. State10/23/2003
could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Id. The State contends this provision, coupled with our deferential review, requires us to conclude that Kennedy's opinion was admissible under this article and rule of evidence 602. The State also argues that appellant failed to preserve error because his objection at trial showed only an objection to Kennedy's "conjecture" and not inadmissibility under rule 701 or 702. Tex. R. Evid. 701, 702.
An objection preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). To the extent that appellant's sole issue on appeal is based upon rule 702, it is overruled. We turn to address appellant's contention that the witness lacked personal knowledge sufficient to comply with rules 602 and 701 of the rules of evidence. Tex. R. Evid. 602, 701.
Rule 602 provides, "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Tex. R. Evid. 602. Rule 701 says, " f the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Tex. R. Evid. 701.
The testimony shows that Kennedy had been a probation officer for seventeen years, that she was the probation officer for county criminal court number seven, that appellant's prior case and motion to revoke were pending in the court where she worked, that she maintains the court's community supervision files, and that appellant was on community supervision at the time of trial. She was able to identify the specifics of his misdemeanor community supervision as well as testify to exactly which conditions he had met and which ones he had violated. Further, the question asked was very narrow; the State only asked if appellant's history of non-reporting and other probation violations would make appellant a good candidate for felony probation. Because such lay witness testimony is rationally based on the perception of this witness and helpful to a determination of a fact in issue, we conclude it is in compliance with article 37.07(3)(a)(1) of the code of criminal procedure and rule of evidence 602. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Tex. R. Evid. 602; Turro v. State, 950 S.W.2d 390, 403 (Tex. App.—Fort Worth 1997, pet. ref'd); see also Fryer v. State, 68 S.W.3d 628, 633 (Tex. Crim. App. 2002) (holding victim's opinion on probation admissible in PSI). Thus, the trial court did not abuse its discretion in admitting Kennedy's testimony regarding appellant's suitability for probation. We overrule appellant's sole issue.
Having overruled appellant's sole issue on appeal, we affirm the judgment of the trial court.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
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