Randolph Nededog Rivera v. State

• Court: Court of Appeals of Texas
• Decided: September 22, 2004
• Docket: 07-04-00023-CR
• Status: Published

Opinion

NO. 07-04-0022-CR NO. 07-04-0023-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 22, 2004 ______________________________

RANDOLPH NEDEDOG RIVERA,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NOS. 13,222-A and 13,223-A; HON. HAL MINER, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

The State of Texas accused appellant, Randolph Nededog Rivera, via two separate

indictments, of indecency with a child. Upon trial by jury of the consolidated cases, he was

found guilty of both crimes. Two issues are presented for our review. We overrule each

and affirm the judgment for the reasons given below.

Issue One

The first issue, which has two sub-parts, involves whether the trial court erred in

exempting the State’s expert witness from application of the Rule and also allowing the individual to later testify as an expert without first conducting a Daubert hearing. As to the

failure to exclude the witness once the Rule was invoked, appellant uttered no objection.

So, the complaint was not preserved. TEX . R. APP. P. 33.1(a) (requiring an objection to

preserve error).

Regarding the second part of the first issue, the record discloses that the trial court

actually did convene a hearing to determine the reliability of the expert and his expected

testimony. Apparently, this was done by the court sua sponte. The record does not reveal

that appellant requested the proceeding or objected to the potential testimony before the

trial court itself broached the matter. Moreover, appellant examined the witness through

voir dire before the trial court found him to be an expert and sought to ask further questions

to “make my record” after the court’s ruling. Yet, at no time did appellant specifically

contend either that the witness was not an expert or that his theories were unreliable. Nor

did he specify the requirements of Daubert that he felt went unsatisfied, if any. Instead,

counsel asserted that “we’re going to further object to this testimony on the basis . . . of

Rule 608 . . . [and] . . . on the basis of Rule 404(a),” neither of which grounds concern

Daubert.1 In omitting to specifically include the ground now asserted in his objections

below and because the complaint was not apparent from the context of those objections,

sub-part two of issue one was not preserved for review. See Gregory v. State, 56 S.W.3d

164, 182 (Tex. App.--Houston [14th Dist.] 2001, pet. dism’d), cert. denied, 538 U.S. 978,

123 S.Ct. 1787, 155 L.Ed.2d 667 (2003) (stating that an objection based merely on

1 Rule of Evidence 608 deals with the impeachm ent of a witness’ credibility through evidence of opinion or reputation. Rule 404(a) concerns the exclusion of evidence touc hing upon a pe rson’s charac ter.

2 “Daubert” is a general objection to an improper predicate that fails to inform the court about

how the predicate is deficient and does not preserve error).

Issue Two

In his second issue, appellant contends the trial court erred in allowing witness Jeff

Tomlinson to testify, during the punishment phase, about an extraneous offense that

occurred some 20 years earlier. The testimony is allegedly inadmissible since 1) the

military deemed the evidence of its occurrence “insignificant” (appellant apparently was in

the military when the accusation arose) and 2) too much time lapsed since its purported

occurrence. However, at trial, appellant argued that the evidence was inadmissible not for

the reasons proffered before us but because it was obtained illegally and in violation of his

rights to privacy. Given that the objections asserted now do not comport with those uttered

below, the issue before us was not preserved for review. Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002).

Accordingly, the judgments of the trial court are affirmed.

Brian Quinn Justice

Do not publish.