Armando Apolinar v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00286-CR
Armando APOLINAR,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1711
Honorable Mary Rom n, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 7, 2004

AFFIRMED

Armando Apolinar appeals his convictions for indecency with a child. In one issue, Apolinar complains that the trial court erred in admitting a statement he made to authorities regarding the credibility of his victim. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. (1)

Apolinar claims the trial court erred by admitting the statement he made to authorities indicating that the complainant "is not lying about what she said [he] did" to her. Apolinar claims that the trial court violated Rule 608(a) of the Texas Rules of Evidence by admitting his statement because it bolstered the complainant's credibility when the complainant's credibility had not been impeached. See Tex. R. Evid. 608(a). Apolinar concedes that he did not object to the admission of his statement during the underlying proceeding. Nevertheless, he argues that he has not waived his complaint because this evidentiary error is fundamental in nature and need not have been preserved for appellate review.

Generally, a party must object to preserve error on appeal. See Tex. R. App. P. 33.1(a). However, pursuant to Texas Rule of Evidence 103(d), appellate courts may take "notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Tex. R. Evid. 103(d). Fundamental errors fall into "two relatively small categories of errors: violations of 'rights which are waivable only' and denials of 'absolute systemic requirements.'" Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). "Waivable only" rights include the right to the assistance of counsel and the right to trial by jury. Id. "Absolute, systemic rights" include jurisdiction of the person, jurisdiction of the subject matter, a penal statute's compliance with the Separation of Powers Section of the state constitution, a constitutional requirement that a district court must conduct its proceedings at the county seat, the constitutional prohibition of ex post facto laws, and certain constitutional restraints on the comments of a judge. Id. at 888-89. Notably, none of the fundamental error categories include the admission or exclusion of evidence, regardless of how probative or prejudicial the evidence might be. See id. at 889.

Apolinar's right to have the State refrain from introducing certain evidence is neither an absolute, systemic requirement nor a right that is waivable only. See id. (recognizing the right not to have evidence introduced in violation of the Equal Protection Clause of the Fourteenth Amendment is neither an absolute, systemic requirement nor a right that is waivable only); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (acknowledging that most evidentiary and procedural rights are rights that are implemented by requests only). The 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. (2) This is true even when the error concerns a constitutional right of the defendant. (3) Because Apolinar did not object to the admission of his statement, we hold he has failed to preserve his complaint for our review. See Saldano, 70 S.W.3d at 890.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

Do Not Publish

1. Apolinar presents a second issue in his brief regarding the trial court's failure to file findings and conclusions regarding his motion to suppress. We need not address that issue, however, because findings and conclusions were filed by the trial court prior to formal submission of this appeal.

2. See Saldano, 70 S.W.3d at 890 (expert testimony); Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978) (improper bolstering); Goodman v. State, 701 S.W.2d 850, 864 (Tex. Crim. App. 1985) (inadmissible hearsay); Fancher v. State, 659 S.W.2d 836, 839 (Tex. Crim. App. 1983) (inadmissible confession); Russell v. State, 665 S.W.2d 771, 777-78 (Tex. Crim. App. 1983) (opinion testimony); Shannon v. State, 567 S.W.2d 510 (Tex. Crim. App. 1978) (testimony regarding irrelevant extraneous offense); Granviel v. State, 552 S.W.2d 107, 118 (Tex. Crim. App. 1976) (expert testimony); Bouchillon v. State, 540 S.W.2d 319, 322 (Tex. Crim. App. 1976) (inadmissible hearsay); and Hinkle v. State, 442 S.W.2d 728, 734 (Tex. Crim. App. 1969) (inadmissible photograph).

3. See Gauldin v. State, 683 S.W.2d 411, 413 (Tex. Crim. App. 1984) (statements obtained in violation of Miranda ), overruled on other grounds, State v. Guzman, 959 S.W.2d 631, 634 (Tex. Crim. App. 1998); Mendoza v. State, 552 S.W.2d 444, 450 (Tex. Crim. App. 1977) (trial court did not commit fundamental error by allowing testimony that denied defendant federally guaranteed constitutional rights; defendant was required to object to preserve this error); Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974) (admissibility of post-arrest silence); Ex parte Bagley, 509 S.W.2d 332, 333-34 (Tex. Crim. App. 1974) (admissibility of confession obtained in violation of Miranda ); Salas v. State, 486 S.W.2d 956, 957 (Tex. Crim. App. 1972) (admissibility of officer's testimony about a statement obtained as result of illegal search).