Tomas Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: March 28, 2008
• Docket: 07-07-00086-CR
• Status: Published

Opinion

NO. 07-07-0086-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 28, 2008 ______________________________

TOMAS RODRIGUEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 64TH DISTRICT COURT OF SWISHER COUNTY;

NO. A-4022-06-01; HON. ROBERT KINKAID, JR., PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Tomas Rodriguez (appellant) appeals his conviction for aggravated sexual assault.

Via three issues, he contends that the trial court erred in admitting his written statement

into evidence at trial. We affirm.

Background

Appellant was approached by Tulia police officer Doyle Ozment concerning

information involving appellant in an alleged aggravated sexual assault of a child younger than fourteen years of age. Appellant accompanied Ozment to the Tulia police station with

the purpose of giving a statement. It was determined that while appellant could not read

and write English very well, Ozment could not read or write Spanish. Thus, officer Emmett

Benavidez was brought into the station to interpret for appellant. Benavidez read to

appellant in Spanish the Miranda warnings, and appellant indicated that he understood

them. After that, appellant gave a statement to Benavidez, who interpreted it into English,

wrote it down, and proffered it to appellant for his signature. Appellant placed his initials

next to the Miranda warnings appearing on the statement and then signed it. Darla

Richardson, a notary public and dispatcher for the Tulia police department, then notarized

the statement.

Issue One - Brady Violation

Appellant initially contends that he was denied due process when the State failed

to disclose, prior to trial, appellant’s written statement that he signed. The statement

purportedly constituted Brady material requiring disclosure. We overrule the issue because

the objection now made was omitted from the grounds mentioned at trial prior to admission

of the document. Because it was so omitted and the trial court was denied opportunity to

consider it before ruling upon the appropriateness of the document, the ground was

waived. TEX . R. APP. P. 33.1 (requiring a contemporaneous objection); Martinez v. State,

91 S.W.3d 331, 335-36 (Tex. Crim. App.2002) (holding that the objection must be made

when the error is first perceived).

2 Issue Two - Statutory Violation

Through his second issue, appellant contends that the written statement alluded to

in his first issue was actually hearsay and failed to comport with the statutory requirements

conditioning the admission of oral statements. We overrule the issue.

As with his Brady claim, appellant did not mention this ground or reason purportedly

justifying exclusion of the evidence when uttering his objection. Thus, that ground also was

waived. As for the purported failure to comply with the prerequisites for admitting an oral

statement, we note that the statement was not oral but written and signed by appellant.

Third Issue - Denial of an Independent Interpreter

In his final issue, appellant contends that his due process and equal protection

rights were violated when he was not afforded the same rights given a deaf person who

makes an inculpatory statement. In other words, because a deaf person is afforded

greater protections than a person who simply cannot read or write English, his due process

and equal protections rights allegedly were denied him. We overrule the issue.

While appellant did refer, at trial, to the protections afforded a deaf person, he did

so as a way of comparison. That is, he sought to liken the situation of a deaf person to that

of someone who neither reads nor writes English. But, nowhere in his argument did he say

that because a deaf person received more protections than someone who could not read

or write English, the latter was denied due process or equal protection. Thus, his

constitutional arguments were not preserved.

Nor did appellant endeavor to provide the court with substantive analysis explaining

why those who could not speak or write English should be treated akin to those who are

3 deaf. This would be of import in any equal protection analysis since before one can claim

undue discrimination, he must show himself similarly situated to those against whom he

is comparing himself. Walker v. State, 222 S.W.3d 707, 710-11 (Tex. App.–Houston [14th

Dist.] 2007, pet. ref’d). And, this seems especially so given that an interpreter was present

who could converse with appellant in Spanish and no one claimed otherwise. Simply put,

more analysis was required of appellant than simply to cite various general statutes and

cases and then conclude that the constitution required the two categories of people to be

treated identically. Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995) (holding

that issues lacking substantive analysis are waived).

Accordingly, we affirm the judgment of the trial court.

Brian Quinn Chief Justice

Do not publish.