In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00088-CR
JOSHUA KEITH RIGO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court Gray County, Texas Trial Court No. 9323, Honorable Steven Ray Emmert, Presiding
October 29, 2015
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Joshua Keith Rigo appeals his conviction for murder and resulting
ninety-year prison sentence and $10,000 fine.1 Through two issues he asserts the trial
court abused its discretion and reversibly erred by denying his Sixth Amendment right to
confront an adverse witness and by overruling his objection to the qualification of a
witness he asserts rendered an expert opinion. Finding error was not preserved, and
1 TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). even if the claimed error occurred and had been preserved appellant was not harmed,
we will overrule appellant’s issues and affirm the judgment.
Background
Because appellant does not challenge the sufficiency of the evidence, we will
state only those facts necessary for the disposition of the appeal. During December
2012 appellant lived with his aunt in Pampa, Texas. He departed her home on foot
about 11:00 p.m. on December 31 wearing boots and camouflage pants. Before
leaving, he told his aunt he might not see her again.
Kristi Slatten lived in Lefors, Texas. Although married, evidence indicated she
and appellant were involved in a relationship and were together in the early morning
hours of January 1, 2013. At the time, Slatten’s husband was in Corpus Christi where
he was employed. She and her husband spoke briefly by telephone shortly after
midnight on January 1. A photograph on Slatten’s Blackberry cellphone depicted
appellant, shirtless, standing in Slatten’s living room wearing a white baseball cap,
camouflage pants, and cowboy boots. Testimony showed the image was saved to
Slatten’s Blackberry at an unspecified time on January 1, 2013. The image was
transmitted from the Blackberry to appellant’s cellphone at 1:57 a.m. on January 1.
During the mid-morning hours of January 1, Slatten’s father-in-law found her
lying dead on the living room floor of her home. Her body was positioned face down
with arms underneath. Other than a t-shirt and socks, her body was unclothed.
Later in the day, while processing the crime scene and collecting evidence, law
enforcement officers took possession of a bottle of “Mad Dog 20/20 Orange Jubilee,” an
2 enhanced wine beverage, found on an end table in Slatten’s living room. Fingerprints
on the bottle, according to trial testimony, matched appellant’s. Guns from a living room
gun case and knives were discovered missing. Also missing was Slatten’s vehicle, an
Avalanche truck equipped with an OnStar communications and tracking system.
There was evidence Slatten struggled with her assailant. Her nose was bloodied
and appeared broken, her left arm bore a large cut, her hands exhibited defensive
wounds, with bruising visible about her neck. An autopsy identified blunt force injuries
to Slatten’s head and neck. Manual strangulation was determined the cause of death.
Using the OnStar system, law enforcement located Slatten’s truck near
Panhandle, Texas, where it was stopped by local officers. Appellant was the driver. At
the time he was wearing a white baseball cap, camouflage pants, and a pair of cowboy
boots. Slatten’s purse and cellphone were in the vehicle, as was a pair of underwear
Slatten’s husband identified in trial testimony as hers. DNA evidence indicated a
smudge of blood found on one of appellant’s socks was Slatten’s. During the early
morning of January 1, appellant gave the missing guns and knives to his father in
Amarillo as a gift. Evidence at the guilt-innocence phase of trial showed appellant had a
prior felony conviction and could not lawfully “possess or carry or own a firearm . . . for a
period of time.”
Analysis
In his first issue appellant asserts the trial court committed harmful error by
overruling his Confrontation Clause objection to a testimonial statement by a State’s
witness, deputy sheriff Zach Kidd. Appellant contends in his second issue deputy Kidd
3 was not shown to be qualified to render an expert opinion and by overruling an objection
on that ground the trial court reversibly erred. Appellant’s two issues arise from an
exchange during the State’s direct examination of deputy Kidd.
The State argues appellant failed to preserve the error he now claims by not
raising a timely objection. To preserve a complaint for appellate review, a party must
make a timely request, objection, or motion stating the specific grounds for the desired
ruling if they are not apparent from the context of the request, objection, or motion. 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). Ordinarily, an objection is timely if it precedes the objectionable testimony.
Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). “[I]f a question clearly calls
for an objectionable response, a defendant should make an objection before the witness
responds.” Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). An objection
made after the witness answers may nevertheless sufficiently preserve error if an
acceptable reason exists for not objecting earlier. See Dinkins, 894 S.W.2d at 355;
Girndt v. State, 623 S.W.2d 930, 934-35 (Tex. Crim. App. [Panel Op.] 1981) (noting that
lateness may be excused if witness answers question before attorney can object or a
showing is made that counsel misunderstood the question when asked).
After careful review of the record, we must agree with the State’s contention.
Appellant’s objections came during deputy Kidd’s testimony that he scanned appellant’s
fingerprints into an “Automated Fingerprint Index System,” which he described as “a
regional database with people that have been incarcerated in the jails in the top 26
counties in the Panhandle.” The objections came after Kidd testified he “entered”
appellant’s fingerprints into the system, after he responded to another question with a
4 brief description of the function and workings of the system, after he responded
positively to a question asking if he “c[a]me up with any matches on that fingerprint from
the MD 20/20 bottle,” and after he responded to the question asking the identity of the
match.2 We cannot say the record demonstrates a reason for the late objections, or
that it indicates Kidd answered the questions before the objections going to appellant’s
two issues were possible. See Girndt, 623 S.W.2d at 934-35. Appellant’s objections
were not timely raised, and his issues present nothing for our review.
The State also argues, moreover, that even if error were preserved and even if
we were to conclude the trial court erred by allowing Kidd’s testimony that the AFIS
showed the fingerprints lifted from the MD 20/20 bottle were appellant’s, appellant
suffered no harm. We agree with this contention also.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00088-CR
JOSHUA KEITH RIGO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court Gray County, Texas Trial Court No. 9323, Honorable Steven Ray Emmert, Presiding
October 29, 2015
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Joshua Keith Rigo appeals his conviction for murder and resulting
ninety-year prison sentence and $10,000 fine.1 Through two issues he asserts the trial
court abused its discretion and reversibly erred by denying his Sixth Amendment right to
confront an adverse witness and by overruling his objection to the qualification of a
witness he asserts rendered an expert opinion. Finding error was not preserved, and
1 TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). even if the claimed error occurred and had been preserved appellant was not harmed,
we will overrule appellant’s issues and affirm the judgment.
Background
Because appellant does not challenge the sufficiency of the evidence, we will
state only those facts necessary for the disposition of the appeal. During December
2012 appellant lived with his aunt in Pampa, Texas. He departed her home on foot
about 11:00 p.m. on December 31 wearing boots and camouflage pants. Before
leaving, he told his aunt he might not see her again.
Kristi Slatten lived in Lefors, Texas. Although married, evidence indicated she
and appellant were involved in a relationship and were together in the early morning
hours of January 1, 2013. At the time, Slatten’s husband was in Corpus Christi where
he was employed. She and her husband spoke briefly by telephone shortly after
midnight on January 1. A photograph on Slatten’s Blackberry cellphone depicted
appellant, shirtless, standing in Slatten’s living room wearing a white baseball cap,
camouflage pants, and cowboy boots. Testimony showed the image was saved to
Slatten’s Blackberry at an unspecified time on January 1, 2013. The image was
transmitted from the Blackberry to appellant’s cellphone at 1:57 a.m. on January 1.
During the mid-morning hours of January 1, Slatten’s father-in-law found her
lying dead on the living room floor of her home. Her body was positioned face down
with arms underneath. Other than a t-shirt and socks, her body was unclothed.
Later in the day, while processing the crime scene and collecting evidence, law
enforcement officers took possession of a bottle of “Mad Dog 20/20 Orange Jubilee,” an
2 enhanced wine beverage, found on an end table in Slatten’s living room. Fingerprints
on the bottle, according to trial testimony, matched appellant’s. Guns from a living room
gun case and knives were discovered missing. Also missing was Slatten’s vehicle, an
Avalanche truck equipped with an OnStar communications and tracking system.
There was evidence Slatten struggled with her assailant. Her nose was bloodied
and appeared broken, her left arm bore a large cut, her hands exhibited defensive
wounds, with bruising visible about her neck. An autopsy identified blunt force injuries
to Slatten’s head and neck. Manual strangulation was determined the cause of death.
Using the OnStar system, law enforcement located Slatten’s truck near
Panhandle, Texas, where it was stopped by local officers. Appellant was the driver. At
the time he was wearing a white baseball cap, camouflage pants, and a pair of cowboy
boots. Slatten’s purse and cellphone were in the vehicle, as was a pair of underwear
Slatten’s husband identified in trial testimony as hers. DNA evidence indicated a
smudge of blood found on one of appellant’s socks was Slatten’s. During the early
morning of January 1, appellant gave the missing guns and knives to his father in
Amarillo as a gift. Evidence at the guilt-innocence phase of trial showed appellant had a
prior felony conviction and could not lawfully “possess or carry or own a firearm . . . for a
period of time.”
Analysis
In his first issue appellant asserts the trial court committed harmful error by
overruling his Confrontation Clause objection to a testimonial statement by a State’s
witness, deputy sheriff Zach Kidd. Appellant contends in his second issue deputy Kidd
3 was not shown to be qualified to render an expert opinion and by overruling an objection
on that ground the trial court reversibly erred. Appellant’s two issues arise from an
exchange during the State’s direct examination of deputy Kidd.
The State argues appellant failed to preserve the error he now claims by not
raising a timely objection. To preserve a complaint for appellate review, a party must
make a timely request, objection, or motion stating the specific grounds for the desired
ruling if they are not apparent from the context of the request, objection, or motion. 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). Ordinarily, an objection is timely if it precedes the objectionable testimony.
Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). “[I]f a question clearly calls
for an objectionable response, a defendant should make an objection before the witness
responds.” Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). An objection
made after the witness answers may nevertheless sufficiently preserve error if an
acceptable reason exists for not objecting earlier. See Dinkins, 894 S.W.2d at 355;
Girndt v. State, 623 S.W.2d 930, 934-35 (Tex. Crim. App. [Panel Op.] 1981) (noting that
lateness may be excused if witness answers question before attorney can object or a
showing is made that counsel misunderstood the question when asked).
After careful review of the record, we must agree with the State’s contention.
Appellant’s objections came during deputy Kidd’s testimony that he scanned appellant’s
fingerprints into an “Automated Fingerprint Index System,” which he described as “a
regional database with people that have been incarcerated in the jails in the top 26
counties in the Panhandle.” The objections came after Kidd testified he “entered”
appellant’s fingerprints into the system, after he responded to another question with a
4 brief description of the function and workings of the system, after he responded
positively to a question asking if he “c[a]me up with any matches on that fingerprint from
the MD 20/20 bottle,” and after he responded to the question asking the identity of the
match.2 We cannot say the record demonstrates a reason for the late objections, or
that it indicates Kidd answered the questions before the objections going to appellant’s
two issues were possible. See Girndt, 623 S.W.2d at 934-35. Appellant’s objections
were not timely raised, and his issues present nothing for our review.
The State also argues, moreover, that even if error were preserved and even if
we were to conclude the trial court erred by allowing Kidd’s testimony that the AFIS
showed the fingerprints lifted from the MD 20/20 bottle were appellant’s, appellant
suffered no harm. We agree with this contention also.
Because of appellant’s relationship with Slatten, nothing in the record indicates it
was remarkable to find his fingerprints on an item located in her home. Indeed, from the
record it is impossible to determine whether appellant handled the MD 20/20 bottle
while he was present at Slatten’s home or whether he gave the bottle to Slatten at
another location and she took it to her home. In this respect, law enforcement found an
identical bottle of MD 20/20 “Orange Jubilee” during the search of appellant’s bedroom
at his aunt’s house in Pampa.
2 Before he was interrupted by appellant’s initial objection, Kidd responded, “Joshua Keith Rigo was a candidate on multiple prints that were obtained from this bottle. And the AFIS system generates scores—” He previously had said the AFIS produces a “candidate list.” Although Kidd did not say so, we will assume appellant was the only “candidate” the AFIS system listed.
5 Further, the bottle and its fingerprints were minor items among the evidence
linking appellant to Slatten’s murder. As noted, a cellphone photograph depicted
appellant wearing a white baseball cap, camouflage pants, and cowboy boots in
Slatten’s home early in the morning on January 1. Later that morning appellant
delivered guns from Slatten’s home to his father in Amarillo. At his arrest around noon
that day, appellant had in his possession or was wearing a white baseball cap,
camouflage pants, and cowboy boots like those in the photograph. He drove Slatten’s
Avalanche, with her purse, Blackberry and panties in the vehicle. Blood on one of his
socks was Slatten’s. Appellant’s argument that the fingerprint evidence was significant
depends on alternative hypotheses to explain the evidence of his guilt. As examples,
his brief responds to his possession of her vehicle, phone and purse by noting that he
told the arresting officer Slatten had loaned him the car. He responds to the evidence of
his possession of the guns by referring to evidence she had “a propensity to shower
[a]ppellant with gifts.” Appellant acknowledges that the State never made mention of
the fingerprint evidence in argument to the jury.
Whether assessed under the constitutional standard for harmless error review 3 or
that for non-constitutional error4 the admission of the challenged fingerprint evidence
was harmless.
3 We review any Confrontation Cause error under the constitutional error standard and will therefore reverse the trial court’s judgment unless we determine “beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” See TEX. R. APP. P. 44.2(a); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010) (“The court of appeals correctly identified any Confrontation Clause error to be of constitutional dimension, and therefore . . . subject to a constitutional harm analysis”).
6 Appellant’s first and second issues are overruled.
Conclusion
Having overruled appellant’s two issues, we affirm the judgment of the trial court.
James T. Campbell Justice
Do not publish.
___________________ 4 A trial court’s erroneous admission of evidence is non-constitutional error subject to the analysis of appellate rule 44.2(b). TEX. R. APP. P. 44.2(b) (error “that does not affect substantial rights must be disregarded”); Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008) (“error is reversible only when it has a substantial and injurious effect or influence in determining the jury’s verdict”).