Armando Martinez v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION
No. 04-03-00039-CR
Armando MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Atascosa, County, Texas
Trial Court No. 01-11-0224-CRA
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 31, 2003

AFFIRMED

A jury found appellant, Armando Martinez, guilty of aggravated sexual assault. The trial court, in accordance with the jury's assessment, sentenced Martinez to fifty years confinement in the Institutional Division of the Texas Department of Criminal Justice. During the punishment phase of the trial, the victim's sister, D.H, testified to incidents where Martinez had sexually abused her as well. On appeal, Martinez contends the trial court erred in admitting D.H.'s testimony regarding these unadjudicated extraneous offenses.

Discussion

Effective September 1, 1993, the Texas legislature amended the Texas Code of Criminal Procedure to allow for the admission of unadjudicated extraneous offenses in the punishment phase of non-capital criminal cases. (1) Voisine v. State, 889 S.W.2d 371, 372 (Tex. App.--Houston [14th Dist.] 1994, no pet.). However, the Legislature stated that this amendment applies only to offenses that occurred on or after September 1, 1993. Id. Since the current offense in this case occurred on or about December 15, 1985, Martinez argues the trial court erred in admitting evidence of unadjudicated extraneous offenses during the punishment phase.

Standard of Review

It is well settled that a defendant must make a timely objection in order to preserve error on the admission of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995); Von Byrd v. State, 569 S.W.2d 883, 898 (Tex. Crim. App. 1978); Tex. R. App. P. 33.1(a). Counsel should object as soon as the ground for objection becomes apparent, which usually occurs when the evidence is admitted. Dinkins, 894 S.W.2d at 355. If counsel does not timely object, then any error in the admission of evidence is waived. Von Byrd, 569 S.W.2d at 898. Since Martinez's counsel never objected to the admission of D.H.'s testimony regarding past sexual abuse, nothing is preserved for review.

Although Martinez did not object at trial, he argues the punishment should be reversed and remanded for a new hearing since the error was so egregious as to constitute fundamental error. 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). "Fundamental error is error that directly and adversely affects the interest of the public generally, as such interest is declared in statutes or the constitution of the State." In re G.A.O. v. State, 854 S.W.2d 710, 715 (Tex. App.--San Antonio 1993, no pet.). If the trial court errs in admitting evidence, the error will be fundamental only when it has caused the defendant's trial to be fundamentally unfair. Smith v. State, 961 S.W.2d 501, 505-06 (Tex. App.--San Antonio 1997, no pet.). Reviewing courts have not found that the improper admission of extraneous offenses constitutes fundamental error. See id.; Heiman v. State, 923 S.W.2d 622, 624 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd). Indeed, the Texas Court of Criminal Appeals has specifically held that one must object to evidence of extraneous offenses in order to preserve error. Smith, 961 S.W.2d at 506 (citing Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980)). Therefore, the trial court's error in admitting D.H.'s testimony during the punishment phase of an offense occurring before September 1, 1993, was not fundamental error. Accordingly, nothing is preserved for review.

Conclusion

We overrule Martinez's issue and affirm the judgment of the trial court.

Catherine Stone, Justice

Do Not Publish

1. Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.

(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, . . . and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. . . . Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2003).