Samuel Chavez v. State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-00-241-CR

SAMUEL CHAVEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 24,433

O P I N I O N

A jury convicted Samuel Chavez of manslaughter and assessed his punishment at twenty years imprisonment and a $10,000 fine. Chavez argues in two points that: 1) a written statement given to police was not his own confession; and 2) the written statement was involuntary because it was the product of coercion and deception and the trial court committed fundamental error in admitting the statement.

Background

Robert Ortiz was shot at a gang fight on July 4, 1999. During the investigation of the shooting, the police arrested Samuel Chavez and his brother Francisco. Chavez does not speak or write the English language. Chavez was advised of his Miranda rights and interrogated by the police through the help of an interpreter, Eva Lopez. The police used Lopez to translate despite her relationship with Francisco. // The police relied upon her translation in preparation of Chavez s written statement. At trial, Chavez s confession was admitted without objection. Subsequently, Lopez testified regarding the translated statement. // She stated that during the confession Chavez continually protested the inclusion of the phrase, the pistol went off. // She then admitted that she allowed him to sign the confession containing the phrase the pistol went off, despite his earlier objections. During his own testimony, Chavez stated that he merely waived an unloaded gun in the air to scare others at the scene. Alberto Sanchez testified at trial that Chavez fired the fatal shot.

The Confession

In point one, Chavez argues that the written statement was not his own confession. In point two, he asserts that the confession is the unlawful product of police coercion and deception.

The State argues that Chavez failed to preserve error. We agree. Chavez did not file a motion to suppress the confession and did not object to the statement when offered at trial. // See Tex. R. App. P. 33.1. Chavez moved for a new trial on the grounds that newly discovered evidence proved that his translated confession was false. However, he presented only the affidavit of counsel (not an affidavit from Lopez or himself). // The motion was overruled by operation of law. We disagree with Chavez s contention that Lopez s testimony first revealed the need to object to the statement. Chavez admitted that his trial strategy included Lopez s testimony concerning police coercion of the translated statement. Thus, a proper objection or motion to suppress should have been offered by Chavez to timely notify the court of his complaint. Because Chavez failed to timely object to the confession, he did not preserve the issues presented for appellate review. See Tex. R. App. P. 33.1; Harris v. State, 34 S.W.3d 609, 616 (Tex. App. Waco 2000, pet. ref d).

Chavez argues, in the alternative, that this Court should review the admission of the written confession as fundamental error because of his constitutional right to due process. The Court of Criminal Appeals recently stated, we have consistently held that failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. Saldano v. State, No. 72,556, slip op. at 26, 2002 WL 385848 at *9 (Tex. Crim. App. March 13, 2002) (citations omitted). This is true even though the error may concern a constitutional right of the defendant. Id. at 26-27, *9; see also Mendoza v. State, 552 S.W.2d 444, 450 (Tex. Crim. App. 1977) (defendant required to object to preserve fundamental error). In order to complain about the admissibility of an admission or confession there must be an objection thereto in the trial court. Fancher v. State, 659 S.W.2d 836, 839 (Tex. Crim. App. 1983). Despite the constitutional dimensions of his point of error, Chavez has not preserved the issue for review on appeal.

Accordingly, points one and two are overruled.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed May 22, 2002

Do not publish

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