Jeremy Ray Riley v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-98-089-CR

JEREMY RAY RILEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 32321

O P I N I O N

Jeremy Ray Riley pled guilty to charges of Delivery of a Controlled Substance and Possession of a Controlled Substance with Intent to Deliver. He raises two points of error that stem from the punishment phase of his trial: (1) the court erred in admitting evidence of a conviction against him over his objection under Texas Rule of Evidence 902(4); and (2) the court erred when it admonished him that if he elected to waive his 5th Amendment right to remain silent, his testimony may work in [his] favor. We hold that Riley has failed to preserve error on both points. Therefore, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

Jeremy Ray Riley pled guilty to one count each of Delivery of a Controlled Substance and Possession of a Controlled Substance with Intent to Deliver. At the punishment phase of his trial, the State offered evidence of a 1994 conviction for assault. It offered the evidence through a fingerprint expert who identified a fingerprint attached to the pen packet as belonging to Riley. Riley objected:

Your Honor, we have no objection to it being admitted based on a fingerprint comparison. However, we do have an objection that it s not properly proven up in this court as being a proper and accurate complaint, information, and judgment. We don t believe this officer has any knowledge of this particular document or any of these events.

The court overruled Riley s objection and admitted the evidence.

Later, Riley took the stand to testify. Prior to his testimony, the court gave him the following admonishment:

If you give up your right to remain silent and take the stand, then anything you say can and will be used against you or it may work in your favor, I don t know.

Riley made no objection at trial to the court s admonishment.

DISCUSSION

In his first point of error, Riley complains that the trial court erroneously admitted the evidence on his prior conviction. On appeal, Riley argues that the evidence was not properly admitted under Rule 902 of the Texas Rules of Evidence because not all of the pages within the document contained a certificate of authentication, and there was no certification that the signatory on the certification had authority to certify the document. At trial, however, Riley objected that the authenticating witness lacked personal knowledge of the pen packet or the events recorded therein.

In order to preserve a ruling on the admission of evidence for appeal, the party complaining of the admission must make a timely objection which states the specific ground, unless the ground is apparent from the context, on which the court should base its ruling to exclude the evidence. See Tex. R. Evid. 103(a)(1). See also Tex. R. App. P. 33.1(a)(1)(A). [An] objection preserves only the specific grounds cited. Reed v. State, 927 S.W.2d 289, 291 (Tex. App. Fort Worth 1996, no pet.).

Here, Riley made a timely, specific objection to the admission of the pen packet. However, it appears to us that he grounded his objection on Texas Rule of Evidence 602. See Tex. R. Evid. 602 ( A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. ). Therefore, Riley only preserved errors arising out of Rule 602 for appeal. Because his appeal complains of errors arising out of Rule 902, not Rule 602, we overrule his first point of error for failure to properly preserve it.

In his second point of error, Riley complains that the trial court erred in its admonishment that if he took the stand to testify it could work in his favor. However, we hold that Riley failed to preserve any error in the court s admonishment for appeal because he failed to make a timely, specific objection to the admonishment. See Tex. R. App. P. 33.1(a)(1)(A). Riley argues that the court s admonishment amounts to fundamental error, and therefore, not necessary for him to object at trial in order to preserve the issue for appeal. See e.g., Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In order for an error to rise to the level of fundamental error, it must have been so egregious and created such harm that [the defendant] has not had a fair and impartial trial. Id. (quoting Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981)). See also, e.g., Konchar v. State, 938 S.W.2d 500, 502 (Tex. App. Tyler 1996, no pet.) (holding that retrial in violation of double jeopardy was fundamental error). Even constitutional error, if not fundamental error, must be preserved with a timely specific objection. See Little v. State, 782 S.W.2d 551, 563-64 (Tex. Crim. App.), cert. denied, 488 U.S. 934 (1988).

In this case, assuming, arguendo, that the court s admonishment presented reversible error, we cannot say that this error was so egregious as to prevent Riley from having a fair and impartial trial. Riley s testimony, for the most part, while given after of the court s error, was cumulative of other evidence the court properly admitted. Additionally, that testimony which was not cumulative was mitigating testimony. Therefore, had Riley not taken the stand, all of the evidence added by Riley s testimony would still be before the court with the exception of the mitigating evidence. So, we do not think that the court s improper admonishment prevented it from making a fair and impartial determination of Riley s punishment. Consequently, we hold that the court s improper admonishment of Riley was not fundamental error, an thus, it was necessary for Riley to object to the error in order to preserve the issue for appeal. Since Riley failed to object, we do not consider his second point of error.

Because Riley preserved neither his first nor his second point of error for appeal, we affirm the judgment of the trial court.

PER CURIAM

Before Chief Justice Davis,

and Justice Vance

Justice Cummings (not participating)

Affirmed

Opinion delivered and filed January 20, 1999

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