Dennis Rivera v. State

• Court: Court of Appeals of Texas
• Decided: May 15, 2013
• Docket: 04-12-00533-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-12-00533-CR

Dennis RIVERA, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2011CR8512 Honorable Sid L. Harle, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice

Delivered and Filed: May 15, 2013

AFFIRMED

The sole complaint raised in this appeal is that the trial court abused its discretion in

admitting testimony by the complainant regarding Dennis Rivera’s commission of a prior

homicide. Rivera contends the testimony was evidence of an extraneous offense that should

have been excluded under Rule 403 or Rule 404(b) of the Texas Rules of Evidence. Because

Rivera failed to preserve his complaint with a timely objection, we affirm the trial court’s

judgment. 04-12-00533-CR

PROCEDURAL HISTORY

Rivera was charged with aggravated assault with a deadly weapon on a family member.

Before trial, the trial court granted Rivera’s motion in limine regarding his commission of a prior

unadjudicated homicide. During the complainant’s testimony, the complainant stated that Rivera

told her that he had “killed somebody.” No objection was made by defense counsel until the

conclusion of the State’s direct examination of the witness. 1

PRESERVATION OF ERROR

To preserve an issue for appellate review, a party must timely object, stating the specific

legal basis for the objection. TEX. R. APP. P. 33.1(a)(1). An objection is timely if made at the

earliest opportunity or as soon as the grounds for the objection become apparent. Gillenwaters v.

State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006); Batiste v. State, 217 S.W.3d 74, 81 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). “[T]he failure to object in a timely and specific

manner during trial forfeits complaints about the admissibility of evidence.” Saldano v. State, 70

S.W.3d 873, 889 (Tex. Crim. App. 2002). In this case, counsel’s objection to the witness’s

statement was untimely.

Acknowledging that the objection was untimely, Rivera suggests that this court review

the admission of the extraneous offense as fundamental error. Both the Texas Court of Criminal

Appeals and this court, however, have refused to review the admission of an extraneous offense

as fundamental error. See Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980) (“failure

to object waives any error in admission of evidence tending to show an extraneous offense”);

Smith v. State, 961 S.W.2d 501, 506 (Tex. App.—San Antonio 1997, no pet.) (rejecting

contention that admission of extraneous offense evidence is “egregious enough to be the basis of

a reversal where [the claimed error was] unpreserved at trial”).

1 The objection appears in the record approximately forty pages after the complainant made the statement.

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CONCLUSION

Because Rivera failed to preserve his complaint regarding the admission of the

complainant’s statement referencing a prior unadjudicated homicide, his complaint is overruled,

and the trial court’s judgment is affirmed.

Catherine Stone, Chief Justice

DO NOT PUBLISH

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