Roque Reyes v. State ( 2010 )

NO. 07-08-00379-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 28, 2010
ROQUE REYES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-419,410; HONORABLE JIM BOB DARNELL, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Roque Reyes appeals from his conviction by jury of the offense of
burglary of a habitation with intent to commit theft1 and the resulting sentence of forty-
seven years in the Institutional Division of the Texas Department of Criminal Justice. By
one issue, appellant argues the trial court infringed on his rights under the Confrontation
Clause by admitting penitentiary packets into evidence against him during the guilt-
1
See Tex. Penal Code Ann. ' 30.02(a)(1), (c)(2) (Vernon 2003).
innocence phase of trial. We find the issue not preserved for our review, and so affirm
the judgment of the trial court.
Background
Appellant plead not guilty to the indicted charge. The State presented testimony
showing appellant took an air compressor from the victim’s garage. The victim, who
interrupted the theft, testified the compressor was in his garage and appellant would
have had to enter the garage to take it. During his case, appellant testified. He
acknowledged he took the compressor but said it was located in a truck in the driveway,
not inside the garage. Appellant denied he entered the garage.
Appellant’s complaint on appeal concerns the prosecutor’s manner of
impeaching him during cross-examination with his two prior felony convictions. Rather
than simply asking him about the convictions, the prosecutor asked him to identify the
“pen packets” and after an exchange about the packets, offered them into evidence.
Appellant objected, raising hearsay and lack of authentication objections. The court
overruled the objections and admitted the packets.2
Analysis
Although conceding he freely admitted the prior convictions, appellant
nonetheless contends the trial court erred by admitting the packets, arguing their
admission served no purpose other than to show the jury he actually had served time in
the Institutional Division on a prior occasion. Noting the relationship between the right
2
The court’s charge instructed the jury to consider the prior convictions only in
determining appellant’s credibility.
2
of confrontation and the exclusion of hearsay, appellant argues admission of the
packets violated his rights under the Confrontation Clause of the Sixth Amendment.
The State contends appellant’s constitutional issue was not preserved for our review.
We agree.
To preserve an issue for appellate review, a party must make a timely objection
or request to the trial court, sufficiently stating the specific grounds for the requested
ruling, unless apparent from the context, and obtain an adverse ruling. See Tex. R. App.
P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Moreover, the
objection or request at trial must comport with the complaint presented on appeal.
Wilson, 71 S.W.3d at 349. Even constitutional errors may be forfeited by failure to object
at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). The Court of
Criminal Appeals reiterated in Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.
2005) that a party’s hearsay objection to offered evidence does not preserve error on a
Confrontation Clause ground. The precept is applicable here. Accordingly, we overrule
appellant’s issue, and affirm the trial court’s judgment.
James T. Campbell
Justice
Do not publish.
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