Ostigin, Eustacio v. The State of Texas--Appeal from 278th District Court of Grimes County

Affirmedand Memorandum Opinion filed June 21, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01081-CR

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EUSTACIO OSTIGIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

Grimes County, Texas

Trial Court Cause No. 14,977

M E M O R A N D U M O P I N I O N

Appellant was convicted of sexual assault and sentenced to forty years confinement in the Texas Department of Criminal Justice, Institutional Division. In a single issue, appellant contends the trial court denied him due process and committed fundamental error by allowing the State to impeach him with five prior convictions involving crimes of violence. Because we hold that the admission of extraneous offense evidence is not fundamental error that may be raised for the first time on appeal, we affirm.

I. Procedural Background

Appellant testified at trial and denied sexually assaulting the complainant on July 28, 2002, as alleged in the indictment. During cross-examination, the State questioned appellant about one arson conviction, two assaults, and a conviction for robbery and assault on a handicapped person. Appellant did not object to this questioning. A jury found appellant guilty and, on August 29, 2003, the trial court assessed his punishment.

II. The Admission of Evidence of Extraneous Offenses is Not Fundamental Error

Appellant argues that admitting the extraneous offenses which he contends were not admissible under certain evidentiary rules violated his Fifth Amendment right to due process and therefore constitutes fundamental error. The State counters that appellant has waived any complaint because he failed to object to the admission of the evidence below. We agree with the State.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. See Tex. R. App. P. 33.1(a). Appellant does not acknowledge his failure to object below, but he argues the alleged error was fundamental, presumably in an attempt to overcome this failure. A reviewing court may take notice of fundamental errors affecting substantial rights even if the errors were not preserved at trial. Tex. R. Evid. 103(d).

Although appellant argues in his brief that admitting the extraneous offenses violates Texas Rules of Evidence 404(b), 403, and 609(a), he cites no authority and makes no argument to support his conclusory statement that admitting this evidence violates his due process rights and constitutes fundamental error that may be raised for the first time on appeal. Indeed, the Texas Court of Criminal Appeals has consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence, even when the error may concern a defendant s constitutional right. Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (en banc); see also Tex. R. Evid. 103(a)(1) (providing that error may not be predicated upon a ruling admitting evidence unless a substantial right of the party is affected and a timely objection or motion to strike appears of record, stating the specific ground or objection, if the specific ground was not apparent from the context).

All but the most fundamental rights may be forfeited if not insisted upon by the party to whom they belong. See Saldano, 70 S.W.3d at 887. An exception applies to two relatively small categories of errors: (1) violations of waivable-only rights; and (2) denials of absolute, systemic requirements. See Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (en banc); Saldano, 70 S.W.3d at 888. Examples of rights that are waivable-only include the right to the assistance of counsel, the right to trial by jury, and a right of appointed counsel to have ten days of trial preparation which a statute specifically made waivable-only. Aldrich, 104 S.W.3d at 895. Examples of absolute, systemic requirements include jurisdiction of the person, jurisdiction of the subject matter, and a penal statute s being in compliance with the Separation of Powers section of the state constitution. Id.

That the State refrain from introducing evidence that violates evidentiary rules is neither an absolute, systemic requirement nor a right that is waivable-only. See Saldano, 70 S.W.3d at 889 90 (holding appellant waived complaint that admission of expert testimony violated his equal protection rights when he failed to object below); see also Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993) (en banc), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (en banc) (acknowledging that most evidentiary and procedural rights are rights that are implemented by request only). Therefore, even assuming the trial court erred in admitting the extraneous offenses, any error was not fundamental error. See Saldano, 70 S.W.3d at 890; see also Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996) (en banc) (holding admission of hearsay not fundamental error); Smith v. State, 961 S.W.2d 501, 506 (Tex. App. San Antonio 1997, no pet) (holding admission of evidence of extraneous offenses not fundamental error); Heiman v. State, 923 S.W.2d 622, 624 (Tex. App. Houston [1st Dist.] 1995, pet. ref d) (same). Accordingly, nothing is preserved for review.

III. Conclusion

The trial court s judgment is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed June 21, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).