IN RE: BSC EQUIPMENT COMPANY--Appeal from County Court at Law No 2 of Hidalgo County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 13-10-00467-CV

Case Date: 11/30/2010

Plaintiff: Wesley Garza

Defendant: The State of Texas--Appeal from 381st Judicial District Court of Starr County

Preview:Wesley Garza v. The State of Texas--Appeal from 381st Judicial District Court of Starr County
/**/ MEMORANDUM OPINION

No. 04-05-00417-CR

Wesley GARZA, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 381st Judicial District Court, Starr County, Texas Trial Court No. 03-CR-119 Honorable John A. Pope, III, Judge Presiding Opinion by: Phylis J. Speedlin, Justice Sitting: Sarah B. Duncan, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice Delivered and Filed: February 15, 2006

AFFIRMED

Wesley Garza appeals the trial court s judgment convicting him of possession of cocaine and his sentence of two years imprisonment. We affirm the trial court s judgment. BackgroundOn May 3, 2002, law enforcement officers executed a

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search warrant at a residence in Starr County, Texas after a tip from a confidential informant revealed that he or she had been inside the residence within the prior 48 hours and had seen an undetermined amount of cocaine inside the residence. Officers found cocaine, money, and surveillance devices inside the residence. Wesley Garza was one of five people at the residence. During the search and in the presence of Officer Elizabeth Garcia, he stated that everything in the house was his. Later, when Officer Garcia asked Garza if the cocaine and money were also his, Garza confirmed that the cocaine and money belonged to him. Garza also claimed ownership of the drugs and the money found during the search in Officer Pedro Estrada s presence. Garza pled not guilty, and was tried by a jury. The jury found Garza guilty of possession of cocaine and assessed punishment at confinement in the Texas Department of Criminal Justice Institutional Division for a term of two years. Analysis Garza argues as his sole point of error that the trial court erred in admitting into evidence his incriminating oral statements in violation of Tex. Code Crim. Proc. Ann. art. 38.22 3 (Vernon 2005) (providing that to be admissible an oral statement made as a result of a custodial statement must be recorded). However, Garza did not object to the introduction of the statements on this ground in the trial court, but rather argued that his statements were involuntary. Garza refers to article 38.22 3 as the basis for excluding his statements for the first time on appeal. An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Accordingly, Garza failed to preserve the error he raises on appeal. Tex. R. App. P. 33.1(a). In addition, failure to raise a specific objection during trial will waive error in the admission of evidence. Tex. R. App. P. 33.1(a); see Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000) (stating that to preserve error regarding the admission of evidence, a defendant must lodge a timely and specific objection ... to give to the trial court ... the opportunity to correct the error ); see also Miranda v. State, 813 S.W.2d 724, 737 (Tex. App. San Antonio 1991, pet. ref d) (reiterating that there must be a timely objection which specifically states the legal basis for the objection for an issue to be preserved on appeal). The record shows Garza made several oral statements to the officers at the residence. Garza s objection failed to specifically direct the trial court s attention to which particular oral statement he claimed was inadmissible, and thus failed to preserve his complaint. Finally, any error regarding improperly admitted evidence is cured if that same evidence is brought in later by the defendant or the State without objection. Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993); see Ethington v. State, 819 S.W.2d 854, 860 n.8 (Tex. Crim. App. 1991) (holding that when counsel objects to certain inadmissible testimony, but then permits similar evidence to come in without objection, the complaint is deemed cured). Here, Garza only objected to Officer Elizabeth Garcia s testimony that he stated the cocaine was his, but failed to object to the same evidence admitted through the subsequent testimony of Officer Pedro Estrada. Officer Garcia testified, over objection, that during the search, Garza spontaneously claimed that everything inside the house was his, and after Garcia asked him what he meant, Garza stated, [t]he money and the cocaine are mine. Officer Estrada later testified, without objection, that while the officers were executing the search warrant, Garza spontaneously said, [t]he drugs are mine. The money is mine, and then kept saying, [t]ake me to jail. Officer Estrada also testified that Garza was not under arrest and was not being questioned when he said that the cocaine and the money were his, and that Garza s statements were voluntary. Because he failed to object to the admission of his oral confession through Officer Estrada s testimony, Garza waived any error in the admission of the oral statement through Officer Garcia s testimony. Rogers, 853 S.W.2d at 35. Based on the foregoing reasons, we hold Garza failed to preserve his sole issue on appeal. The trial court s judgment is affirmed. Phylis J. Speedlin, Justice
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