Jose Alexander Rivera v. State

• Court: Court of Appeals of Texas
• Decided: September 27, 2017
• Docket: 09-16-00065-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-16-00065-CR _________________

JOSE ALEXANDER RIVERA, Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________________________________________________

On Appeal from the County Court at Law No. 1 Montgomery County, Texas Trial Cause No. 15-303311 ________________________________________________________________________

MEMORANDUM OPINION

Appellant, Jose Alexander Rivera, was charged by information with the

misdemeanor offense of burglary of a vehicle. See Tex. Pen. Code Ann. § 30.04(a)

(West 2011). A jury found Rivera guilty of the offense, and the trial court assessed

punishment at ten months of confinement in county jail. On appeal, Rivera argues

that his rights were violated by the State’s failure to preserve potential evidence. We

affirm the trial court’s judgment.

1 In his sole issue on appeal, Rivera argues that his right to due course of law

under the Texas Constitution was violated because the State failed to “disclose,

collect or preserve” evidence from the crime scene that could have been useful to

him. See Tex. Const. art. I, § 19 (providing that “[n]o citizen of this State shall be

deprived of life, liberty, property, privileges or immunities, or in any manner

disfranchised, except by the due course of the law of the land.”). Specifically, Rivera

contends that the officer that arrested him failed to take into evidence various tools

found lying on the ground next to the vehicle that Rivera was accused of

burglarizing, arguing that the tools could have been tested to see if they showed

evidence of having been handled by Rivera.1

To preserve a complaint for appellate review, a party must show that he

presented to the trial court a timely request, objection, or motion that stated the

specific grounds for the ruling desired, and that the trial court either expressly or

impliedly ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a). In other

words, he must “let the trial judge know what he wants, why he thinks himself

entitled to it, and . . . do so clearly enough for the judge to understand him at a time

when the trial court is in a proper position to do something about it.” Lankston v.

1 The tools were described in the trial as “some pliers, a screwdriver and tools” and referred to as “burglary tools.” 2 State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Failure to comply with this

requirement generally results in forfeiture of a complaint on appeal. See Mendez v.

State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).

During the trial, Rivera developed evidence regarding the tools through cross-

examination of the arresting officer. The officer acknowledged that the tools could

have been checked for fingerprints if he had collected them as evidence. The officer

also conceded that he did not taken them into evidence, at least in part because he

did not expect the crime analysis lab to have the time to run forensic tests in this type

of case, and also because he had an eyewitness that “had eyes on” Rivera

continuously throughout the burglary and the subsequent arrest.

On appeal, Rivera complains that the presence of “burglary tools” at the scene

was not disclosed before trial and that he only learned of the existence of the tools

at the time of the arresting officer’s testimony. A complaint is timely if it is made

“as soon as the ground of objection becomes apparent.” Pena v. State, 353 S.W.3d

797, 807 (Tex. Crim. App. 2011) (quoting Hollins v. State, 805 S.W.2d 475, 476

(Tex. Crim. App. 1991)). Even accepting as true Rivera’s factual assertion that he

only learned of the existence of the tools during the officer’s testimony, the record

indicates that at no time after the officer first mentioned the tools near the burglarized

vehicle did Rivera lodge any objection regarding the State’s failure to collect them

3 as evidence. He did not move to strike or exclude the officer’s testimony regarding

the tools. He did not seek a mistrial or dismissal of the charge based on any alleged

constitutional violation, nor in any way otherwise bring to the trial court’s attention

any complaint about the tools. Rivera did not request an adverse inference

instruction or any other jury instruction related to the uncollected evidence. Finally,

he did not file a motion for new trial or any other post-judgment motion.

Accordingly, the issue was not properly raised and ruled upon in the trial court and

therefore, is not preserved for review. See Tex. R. App. P. 33.1.

We overrule Rivera’s appellate issue and affirm the trial court’s judgment.

AFFIRMED.

______________________________ CHARLES KREGER Justice

Submitted on June 13, 2017 Opinion Delivered September 27, 2017 Do Not Publish

Before Kreger, Horton, and Johnson, JJ.