Stephen Gerard Brandon v. The State of Texas--Appeal from 405th District Court of Galveston County

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00282-CR

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STEPHEN GERARD BRANDON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 05CR1167

A jury convicted appellant, Stephen Gerard Brandon, of murder and assessed punishment at seventy-five years' confinement. Tex. Pen. Code Ann. 19.02 (Vernon 2003). In his sole point of error, appellant contends that the trial court erred in admitting a police officer's videotaped interview with a witness because it included a prior consistent statement by the witness before she had been impeached. The State responds that appellant's point of error is waived because his objection at trial does not comport with the issue raised on appeal. We agree with the State. Accordingly, we affirm.

BACKGROUND

On May 7, 2005, appellant agreed to allow Robert Pratt to borrow his truck in exchange for cocaine. When appellant did not deliver the truck, Pratt called appellant on the telephone. Pratt then drove to appellant's house and began arguing with appellant. The argument escalated, and appellant shot Pratt, who died at the scene.

A witness, Rita Wells, was in the restroom during incident and overheard the two men arguing. She looked out the door of the bathroom and saw Pratt curled up on the floor begging for his life. She then saw appellant shoot Pratt in the chest.

After appellant fled the scene, Wells called police, who took a videotaped statement from her at the scene. At trial, the State introduced Wells's videotaped statement during the police officer's testimony. The State then called Wells as a witness.

WAIVER

On appeal, appellant contends that, by admitting the recording, the court violated Rule of Evidence 613(c). (1) During trial, however, appellant objected to admitting the recording on Confrontation Clause grounds, not based on a violation of Rule 613(c). (2)

To preserve a complaint for appellate review, a defendant must make a timely, specific objection to the trial court. Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). The objection will be sufficient to preserve error for appellate review if the objection communicates to the trial judge what the objecting party wants, why the objecting party thinks himself or herself entitled to relief, and does so in a manner clear enough for the judge to understand the objection and request at a time when the trial court is in a position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). To preserve error, the objection at trial must comport with the legal grounds argued on appeal. Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).

Appellant concedes that his objection at trial does not comport with the issue raised on appeal. Nevertheless, appellant argues that, because the recording was admitted before Wells testified, and "it is obvious from the objection made that defense counsel believed Wells was not going to be called as a witness," the lack of objection at trial should be excused. Appellant has provided no authority to support this proposition. Furthermore, Rule of Evidence 103(a)(1) allows for a party to preserve error through either an objection or a motion to strike. Appellant could have moved to strike the recording or objected to Wells's subsequent live testimony on Rule 613(c) grounds. However, because the record indicates that appellant made no such objection, error was not preserved.

We overrule appellant's sole point of error.

CONCLUSION

We affirm the judgment of the trial court.

Sherry Radack

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. Rule of Evidence 613(c) provides, "A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B)." Rule 801(e)(1)(B) provides that a prior statement by a witness is not hearsay if the witness testifies at trial and the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."

2. Appellant's counsel objected to the videotape on Confrontation Clause grounds as follows:

Your Honor, we object to anything of this nature. First of all, we don't have an opportunity to cross-examine the witness to ask her questions and get answers. That's all we can say about it. In Crawford versus the United States this type of testimony is not admissible. And I object to the admissibility of it on these grounds.