Ernest Gonzalez A/K/A Ernesto Gonzalez v. State

• Court: Court of Appeals of Texas
• Decided: August 15, 2013
• Docket: 13-12-00305-CR
• Status: Published

Opinion

NUMBER 13-12-00305-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ERNEST GONZALEZ A/K/A ERNESTO GONZALEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant Ernest Gonzalez a/k/a Ernesto Gonzalez appeals his convictions for two

counts of assault involving dating violence, a third-degree felony, see TEX. PENAL CODE

ANN. § 22.01(a)(1), (b)(2)(A) (West 2011), enhanced to a second-degree felony by a prior

felony conviction, see id. § 12.42(a) (West Supp. 2011). The jury found appellant guilty of the two counts, and the trial court assessed punishment at eight years’ confinement in

the Texas Department of Criminal Justice, Institutional Division, for one count and

eighteen years’ confinement for the other. The trial court ordered the two sentences to

run concurrently. By one issue, appellant argues that the admission of State’s Exhibits

numbers 12 through 14 was improper. We affirm.

I. BACKGROUND1

The State indicted appellant for three instances of assaultive conduct on his

girlfriend, but the State abandoned one of the counts during jury deliberations. At trial,

the trial court admitted State’s Exhibits numbers 11 through 14, which were photographs

of the complainant that showed injuries she sustained from an alleged assault.

Appellant did not object to the photographs’ admission. Thereafter, the photographs

were frequently referenced during testimony. Appellant still did not object. Before the

jury retired to deliberate, the trial court noted that State’s Exhibits numbers 1 through 15

would be sent to the jury room during deliberations. Appellant again did not object.

Appellant subsequently moved for a new trial on constitutional grounds, but appellant did

not discuss the exhibits that he is challenging on appeal. Appellant’s new-trial motion

was overruled by operation of law. See TEX. R. CIV. P. 329b(c).

II. PRESERVATION OF ERROR

By his sole issue, appellant contends the admission of State’s Exhibits numbers 12

through 14 was to the detriment of appellant, cumulative, prejudicial, and inflammatory.

In the absence of a timely and proper objection, this issue is not preserved for our review.

1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 Preservation of error is a prerequisite to presenting a claim on appeal. See TEX. R. APP.

P. 33.1(a). To preserve error, an appellant must present a timely objection to the trial

court, state the specific grounds for the objection, and obtain a ruling. Id; see Griggs v.

State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Appellant failed to do so.2 We

overrule appellant’s sole issue.

III. CONCLUSION

We affirm the trial court’s judgment.

GREGORY T. PERKES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 15th day of August, 2013.

2 We note that objection at trial is unnecessary where the error alleged is “fundamental”—that is, when the error causes the defendant to suffer “egregious harm” and prevents him from receiving a fair and impartial trial. Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); see TEX. R. EVID. 103(d). No “fundamental” error is alleged here. Therefore, appellant was required to preserve his issue at trial. See TEX. R. APP. P. 33.1(a). 3