Travis Lee Phillips v. State

IN THE TENTH COURT OF APPEALS No. 10-06-00296-CR Travis Lee Phillips, Appellant v. The State of Texas, Appellee From the 220th District Court Bosque County, Texas Trial Court No. 06-05-13991-BCCR MEMORANDUM Opinion A jury convicted Travis Lee Phillips of burglary of a habitation and sentenced him to twenty years in prison and a $3,000 fine. In one issue, Phillips argues that the admission of ten photographs in evidence violated his right to due process because they were not produced in compliance with the trial court’s pretrial discovery order. We affirm. Two days before voir dire and several days before trial on the merits, the State produced ten photographs of items allegedly stolen during the burglary of Mark and June Hodde’s home and found in Phillips’s home. Arguing that the photographs were not produced in accordance with the trial court’s standard discovery order, Phillips filed a motion in limine to exclude the photographs. The State maintained that it was unaware that the photographs existed because they had been in the possession of the police department. The trial court denied Phillips’s motion. At trial, Phillips objected to the admission of the photographs: DEFENSE COUNSEL: Your Honor, at this point I would reurge my pretrial objection to the admission of these photographs based on the timeliness of their production to me. COURT: That objection is overruled. They are admitted. No further objections were made to the photographs. At no time did Phillips specifically object that either the alleged denial of discovery or the admission of the photographs violated due process.[1] See Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (“[F]ailure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence,” including constitutional complaints); see also Eaves v. State, 141 S.W.3d 686, 691 (Tex. App.—Texarkana 2004, pet. ref’d) (“constitutional errors may be waived or forfeited by a failure to make a timely and specific assertion of the right”). His due process complaint is not preserved for appellate review. Moreover, “error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); see Roberson v. State, 100 S.W.3d 36, 40 (Tex. App.—Waco 2002, pet. ref’d). As the State points out, Detective Steve January, Mark Hodde, and June Hodde all testified without objection to the contents of the photographs. A list of items stolen from the Hoddes’ home, including items depicted in the photographs, was admitted into evidence without objection. In light of this unobjected to evidence, any error in admitting the photographs was harmless. See Lane, 151 S.W.3d at 193; see also Roberson, 100 S.W.3d at 40. Accordingly, we overrule Phillips’s sole issue and affirm the trial court’s judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed October 3, 2007 Do not publish [CR25] [1] Article 39.14 of the Code of Criminal Procedure provides for discovery of particular evidence that is in the “possession, custody or control of the State or any of its agencies.” Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp. 2006). “[D]enial of a proper discovery request, either during or before trial, may violate a defendant's due process rights.” Valdez v. State, 116 S.W.3d 94, 99 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.—Waco 1998, pet. ref'd).