DUANE LEE STEARNS v. THE STATE OF TEXAS--Appeal from 2nd 25th District Court of Gonzales County

NUMBER 13-05-112-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

DUANE LEE STEARNS, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court of Gonzales County, Texas.
MEMORANDUM OPINION
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Ya ez

Appellant, Duane Lee Stearns, appeals his conviction for murder. (1) Appellant's punishment was assessed at twenty years' imprisonment. In two issues, appellant asserts that the trial court erred by admitting (1) opinion testimony and (2) appellant's written confession. We affirm. (2)

The Issues

In his first issue, appellant contends the court erred in permitting two law enforcement officers to provide opinion testimony, which negated appellant's self-defense claim. Though he concedes that this testimony was not objected to at trial, appellant asserts that the trial court's admission of this testimony is fundamental error. According to appellant, the two officers in question are widely known in the community, and their notable, longstanding involvement in law enforcement service made their opinions "so fundamentally prejudicial that Appellant's right to a fair trial was denied."

In his second issue, appellant argues that his written custodial statement should not have been admitted into evidence because appellant did not waive his Miranda rights knowingly and voluntarily, due to his alleged impaired mental capacity stemming from Alzheimer's and possible mental health issues. Appellant concedes that he did not object at trial to the admission of his written statement, (3) but contends that its admission constituted fundamental error.

Fundamental Error

The general rule is that a contemporaneous objection is required to preserve error. (4) Failure to preserve error generally waives the error. (5) An appellate court may, however, "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court." (6) No objection is required when the error is so egregious that it rises to constitutional dimensions. (7) Fundamental errors exist when rights are violated that are considered so fundamental to the proper functioning of our adjudicatory process that they cannot be forfeited, i.e., they are not extinguished by inaction alone. (8) For an accused to lose a fundamental right, he or she must expressly relinquish that right. (9)

Discussion

Appellant makes no attempt to cite cases supporting his claim that errors similar to those he identifies here were found to be fundamentally erroneous. Moreover, we note that 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. This is true even though the error may concern a constitutional right of the defendant." (10) Because error, if any, in allowing the introduction of the written statement (11) or the opinion testimony, does not constitute fundamental error, we overrule appellant's two issues on appeal.

Conclusion

We affirm the judgment of the trial court.

 

LINDA REYNA YA EZ,

Justice

 

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

 

Memorandum opinion delivered and filed

this the 26th day of July, 2007.

1. Tex. Penal Code Ann. 19.02 (Vernon 2006).

2. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

3. We note that no evidence was offered raising an issue as to the voluntary nature of the statement prior to the time it was admitted in evidence, and none was thereafter offered raising such issue. No objection was made to the admission of the statement on the ground it was not voluntarily made. No request was made that an issue as to the voluntary nature of the written statement be submitted to the jury, and none was submitted.

4. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.); Jaenicke v. State, 109 S.W.3d 793, 795 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd).

5. Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002); Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993).

6. Tex. R. Evid. 103(d); see Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001); Blue, 41 S.W.3d at 132.

7. See Jasper, 61 S.W.3d at 421; Blue, 41 S.W.3d at 130.

8. Blue, 41 S.W.3d at 131.

9. Id.; Nunez v. State, 117 S.W.3d 309, 319 (Tex. App.-Corpus Christi 2003, no pet.).

10. Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002).

11. See Brooks v. State, 399 S.W.2d 357, 359 (Tex. Crim. App. 1966) (finding that no error was presented by defendant who contended that it was fundamental error for the trial court to admit his written statement, which he alleged was involuntarily given, because appellant failed to raise an issue as to whether the statement was involuntary at trial).