Darrin Love v. State

• Court: Court of Appeals of Texas
• Decided: July 3, 2002
• Docket: 13-01-00342-CR
• Status: Published

Opinion

                                   NUMBER 13-01-342-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

DARRIN LOVE,                                                                     Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                       On appeal from the Criminal District Court

                                of Jefferson County, Texas.

                          MEMORANDUM OPINION

          Before Chief Justice Valdez and Justices Yañez and Castillo

                                  Opinion by Justice Castillo

Appellant Darryl Wayne Love was convicted by a jury of the first degree felony offense of possession of more than 400 grams of codeine, a controlled substance.^[1]   He elected to have the trial court assess punishment and was sentenced to fifteen years in prison.  In a single issue, Love alleges that the trial court erred in allowing the admission of evidence of extraneous offenses.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. Tex. R. App. P. 47.1.

Appellant admits that he made no objection to the introduction of the alleged extraneous offenses, but argues that their admission was fundamental error and constituted such egregious harm that he was denied due process of law and a fair trial.  Appellant cites Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984), and Abnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994), to support his claim that there may be fundamental error in the admission of testimony regarding the alleged extraneous offenses and asks us to apply the standards of review and harm analysis discussed therein.  However, Almanza and Abnor both dealt with jury charge error, not error in the admission of evidence, and are inapplicable to the question before us.  Almanza, 686 S.W.2d at 161; Abnor, 871 S.W.2d at 728.  Moreover, the court of criminal appeals recently clarified the nature of fundamental error in Texas in an extensive discussion of the same in Saldano v. State, 70 S.W.3d 873, 886-90 (Tex. Crim. App. 2002).  In Saldano, the court noted that while jury charge errors that are so grave as to deny a defendant a fair trial have been recognized as fundamental errors, citing Almanza, errors related to the admission of evidence, even when impacting constitutional rights, are not.  Saldano, 70 S.W.3d at 889 (AWe have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. This is true even though the error may concern a constitutional right of the defendant.@)(citations omitted), and at 889 n.73 (listing evidence of extraneous offenses among the examples of complaints forfeited by failure to object). 

Our decision in the instant case therefore is governed by the well-settled law that failure to object to evidence of an extraneous offense waives any error in its admission.  Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980)(AWe have consistently held that the failure to object waives any error in the admission of evidence tending to show an extraneous offense.@).  As we noted in Hinojosa v. State, admission of evidence of extraneous offenses is Anot fundamental [error] and will not result in reversal when no timely objection is shown.@  659 S.W.2d 914, 916 (Tex. App.BCorpus Christi 1983, pet. ref=d).

We find that appellant waived any complaint as to the admission of the alleged extraneous offenses.  We overrule appellant=s sole issue and affirm the conviction of the trial court.                        

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 3rd day of July, 2002.

---

^[1] Tex. Health & Safety. Code Ann. ''481.118(e), 481.105(1)(Vernon Supp. 2002).