Guadalupe T. Rivera v. State

NUMBER 13-03-726-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG GUADALUPE T. RIVERA, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 24th District Court of De Witt County, Texas. MEMORANDUM OPINION Before Justices Yañez, Castillo, and Garza Memorandum Opinion by Justice Garza Appellant, Guadalupe T. Rivera, was charged by indictment with the second degree felony offense of aggravated assault with a deadly weapon; appellant pleaded not guilty. See Tex. Pen. Code Ann. ' 22.02 (Vernon Supp. 2004-05). Appellant was tried by a jury and found guilty of the offense. The trial court sentenced appellant to twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $10,000. The trial court denied appellant=s motion for new trial. This appeal ensued. Appellant=s counsel has filed an Anders brief with this Court in which he states that he has reviewed the record and concludes that only two possible issues exist for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel=s brief further concludes that these issues lack merit and any appeal in this case would be frivolous. See id. The brief meets the requirements of Anders, as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court=s judgment. Counsel certifies that he has served a copy of his brief on appellant and informed appellant of his right to file a pro se brief. More than thirty days have passed and no pro se brief has been filed. See Tex. R. App. P. 38.6. I. Article 38.38 and the Right to Remain Silent By his first issue, appellant contends that the trial judge should have sua sponte declared a mistrial as a result of the prosecutor=s comments on appellant=s invocation of his right to counsel and right to remain silent. See U.S. Const. amend. V; see also Tex. Code Crim. Proc. Ann. art. 38.38 (Vernon 2005).[1] Appellant argues that the prosecutor=s questions, AYou lawyered up, didn=t you?@ and AYou lawyered up, right?@ were improper because they constituted a comment on appellant=s invocation of his right to counsel and Fifth Amendment right to remain silent. See Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991) (holding that adverse use of evidence that an accused invoked a right or privilege is constitutionally impermissible). The State responds that appellant waived any error by failing to object to this line of questioning. See Tex. R. App. P. 33.1(a) (requiring specific objection and a ruling from the trial judge to preserve error for appellate purposes). We agree. To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds were not apparent from the context. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103; see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc). Generally, a party=s failure to timely and specifically object at trial waives error. See Blue, 41 S.W.3d at 131. Specifically, a timely objection is required to preserve error in the admission of evidence. Tex. R. App. P. 33.1(a); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc). In such situations, the proper method to preserve error is to (1) make a timely objection and secure a ruling, (2) request the trial court to instruct the jury to disregard the statement, and (3) move for mistrial. Tex. R. App. P. 33.1(a); Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984). Constitutional guarantees may be forfeited by the failure to raise a timely, specific objection. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (finding waiver of Fourteenth Amendment right). Nonetheless, in a criminal case, rule of evidence 103(d) authorizes us to take notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court. Tex. R. Evid. 103(d). ASome rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.@ Blue, 41 S.W.3d at 131. A principal characteristic of these rights is that they cannot be forfeited. Id. That is to say, they are not extinguished by inaction alone. Id. Instead, an accused must expressly relinquish a fundamental right. Id. However, a comment on a defendant=s invocation of his right to counsel is not a fundamental error that will be preserved for appeal without proper objection. See Cacy v. State, 901 S.W.2d 691, 699-700 (Tex. App.BEl Paso 1995, pet. ref=d). Likewise, the right to remain silent is not so fundamental as to require the special protection of relieving the appellant of the necessity of an objection. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). Objection is required to preserve the issue. Wheatfall, 882 S.W.2d at 836; Smith, 721 S.W.2d at 855. We have reviewed the record and find that appellant=s counsel did not object and thus failed to preserve this error for appeal. See Tex. R. App. P. 33.1. Accordingly, we overrule appellant=s first issue. II. Admission of Photographs In his second issue, appellant complains that the admission of State=s exhibits 2 through 10, photographs of the scene of the shooting, was misleading because the photographs were taken during daylight hours and the shooting actually occurred at night.[2] An appellate court reviewing a lower court=s ruling on the admissibility of evidence must apply an abuse of discretion standard of review. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997). The court abuses its discretion only when the probative value of the photographs is slight and its inflammatory aspect is great. See Mathews v. State, 40 S.W.3d 179,185 (Tex. App.BTexarkana 2001, pet. ref=d.). A photograph is generally admissible if verbal testimony about the matters depicted in the photograph is also admissible. Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994); Mathews, 40 S.W.3d at 185. An abuse of discretion does not occur if discrepancies between the picture and the subject at its relevant time are properly pointed out. Johnson v. State, 583 S.W.2d 399, 404 (Tex. Crim. App. 1979). The record establishes that defense counsel cross-examined Officer Corey Tolbert as to the accuracy of the photographs and as to the fact that the photographs were taken during the day and the crime occurred at night.[3] Officer Tolbert testified that, despite the difference in lighting, the photographs accurately depicted the scene of the crime and the surrounding area.[4] The jury was made aware of the lighting differences. See id. No error is shown. Appellant=s second issue is overruled. III. Independent Review of Record As stated above, appellant=s counsel has filed a brief and motion to withdraw in which he concludes that appellant has no non-frivolous grounds for appeal. See Anders, 386 U.S. at 744. Upon receiving a Afrivolous appeal@ brief, appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). Having reviewed the entire record, we find that there are no reversible grounds of error and we affirm the judgment of the trial court. IV. Motion to Withdraw In accordance with Anders, appellant=s counsel has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant his motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and the availability of discretionary review. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam). _______________________ DORI CONTRERAS GARZA, Justice Concurring Memorandum Opinion by Justice Errlinda Castillo. Do not publish. Tex.R.App.P. 47.2(b) Memorandum Opinion delivered and filed this the 14th day of July, 2005. [1] Article 38.38 provides: Evidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense. In a criminal case, neither the judge nor the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case. Tex. Code Crim. Proc. Ann. art. 38.38. [2] In his brief, counsel states that he is complaining of exhibits 2 through 12. However, only exhibits 2 through 10 are photographs of the scene. [3] Officer Tolbert was one of the officers present at the investigation of the crime scene. [4] The photographs in question apparently depicted no more than distances, landmarks, and the lay of the land. Other than the daytime/nighttime distinction, there is nothing inflammatory in the photographs.