Kelly Richard Unterburger v. State

• Court: Court of Appeals of Texas
• Decided: December 12, 2013
• Docket: 10-12-00361-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-12-00361-CR

KELLY RICHARD UNTERBURGER, Appellant v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Johnson County, Texas Trial Court No. F45846

MEMORANDUM OPINION

Kelly Richard Unterburger was charged and convicted of possession of a

controlled substance, cocaine, less than one gram. TEX. HEALTH & SAFETY CODE ANN. §

481.115(a), (b) (West 2010). He was sentenced to two years in State Jail, which was

suspended, and placed on community supervision for five years. We affirm the trial

court’s judgment. Unterburger and his girlfriend were stopped by a DPS trooper for speeding.

After obtaining consent to search the vehicle from Unterburger’s girlfriend, who was

the owner of the vehicle, the DPS trooper located various drug paraphernalia and

cocaine residue in a white bag in the back of the vehicle. Unterburger admitted to

possession of a black toiletry bag within the white bag, having a white bag similar to the

white bag in the vehicle, and having packed the white bag.

On appeal, Unterburger argues that the trial court erred in admitting certain

extraneous offense evidence, that being drug paraphernalia, because it was offered to

prove character conformity in violation of Rule 404(b) of the Texas Rules of Evidence. A

trial court's ruling on the admissibility of extraneous offenses is reviewed under an

abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.

2009); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial

court's ruling is within the “zone of reasonable disagreement,” there is no abuse of

discretion, and the trial court's ruling will be upheld. De La Paz, 279 S.W.3d at 343–44;

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on rh'g).

It appears that Unterburger takes issue with all the drug paraphernalia evidence

admitted, that being State’s Exhibits 2-25. However, at trial, objections were raised only

as to Exhibits 7-10 and 17, 18, and 21. To the extent Unterburger contests the

admissibility of any exhibit other than these seven exhibits, those arguments are not

preserved for our review. TEX. R. APP. P. 33.1.

Unterburger v. State Page 2 Unterburger objected to the admission of various objects, and photographs of

those objects, found inside the white bag. Those objects are: a plastic gum container

and the photograph thereof; a photograph of white powder in a plastic baggie which

was found in the plastic gum container; a Tupperware container with a crusty white

residue and the photograph thereof; and cotton balls and the photograph thereof.

To preserve a complaint about the illegal seizure of evidence, a defendant must

either file a motion to suppress and obtain a ruling on the motion or timely object when

the State offers the evidence at trial. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1);

Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App.1984); Ratliff v. State, 320 S.W.3d 857,

860–61 (Tex. App.—Fort Worth 2010, pet. ref'd). If the defendant waits until the State

offers the evidence at trial, the objection to the evidence must be made before a witness

gives substantial testimony about it. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim.

App. [Panel Op.] 1980) (explaining that an objection to evidence “must be urged at the

earliest opportunity”); Ratliff, 320 S.W.3d at 261.

Prior to the offer and admission of the photographs and objects, the trooper

testified about each of the objects: what it looked like, where it was found, and what its

significance was to the trooper, all without objection. No objection was raised until

first, the photograph of the object, and next, the object itself, was offered into evidence.

Unterburger v. State Page 3 This is too late. Thus, Unterburger’s complaints as to State’s Exhibits 7-10, 17, 18, and

21 are waived.1

Unterburger’s sole issue is overruled, and the trial court’s judgment is affirmed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed December 12, 2013 Do not publish [CR25]

1Nevertheless, because the State had to prove Unterburger knew that he possessed cocaine, see Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.2005); Santiesteban-Pileta v. State, 10-12-00154-CR, 2013 Tex. App. LEXIS 7515 (Tex. App.—Waco June 20, 2013, no pet.) (publish), the paraphernalia was admissible to prove knowledge. See TEX. R. EVID. 404(b).

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