Jose Alexander Rivera v. State ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00065-CR
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JOSE ALEXANDER RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 1
Montgomery County, Texas
Trial Cause No. 15-303311
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MEMORANDUM OPINION
Appellant, Jose Alexander Rivera, was charged by information with the
misdemeanor offense of burglary of a vehicle. See Tex. Pen. Code Ann. § 30.04(a)
(West 2011). A jury found Rivera guilty of the offense, and the trial court assessed
punishment at ten months of confinement in county jail. On appeal, Rivera argues
that his rights were violated by the State’s failure to preserve potential evidence. We
affirm the trial court’s judgment.
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In his sole issue on appeal, Rivera argues that his right to due course of law
under the Texas Constitution was violated because the State failed to “disclose,
collect or preserve” evidence from the crime scene that could have been useful to
him. See Tex. Const. art. I, § 19 (providing that “[n]o citizen of this State shall be
deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the due course of the law of the land.”). Specifically, Rivera
contends that the officer that arrested him failed to take into evidence various tools
found lying on the ground next to the vehicle that Rivera was accused of
burglarizing, arguing that the tools could have been tested to see if they showed
evidence of having been handled by Rivera.1
To preserve a complaint for appellate review, a party must show that he
presented to the trial court a timely request, objection, or motion that stated the
specific grounds for the ruling desired, and that the trial court either expressly or
impliedly ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a). In other
words, he must “let the trial judge know what he wants, why he thinks himself
entitled to it, and . . . do so clearly enough for the judge to understand him at a time
when the trial court is in a proper position to do something about it.” Lankston v.
1
The tools were described in the trial as “some pliers, a screwdriver and tools”
and referred to as “burglary tools.”
2
State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Failure to comply with this
requirement generally results in forfeiture of a complaint on appeal. See Mendez v.
State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).
During the trial, Rivera developed evidence regarding the tools through cross-
examination of the arresting officer. The officer acknowledged that the tools could
have been checked for fingerprints if he had collected them as evidence. The officer
also conceded that he did not taken them into evidence, at least in part because he
did not expect the crime analysis lab to have the time to run forensic tests in this type
of case, and also because he had an eyewitness that “had eyes on” Rivera
continuously throughout the burglary and the subsequent arrest.
On appeal, Rivera complains that the presence of “burglary tools” at the scene
was not disclosed before trial and that he only learned of the existence of the tools
at the time of the arresting officer’s testimony. A complaint is timely if it is made
“as soon as the ground of objection becomes apparent.” Pena v. State, 353 S.W.3d
797, 807 (Tex. Crim. App. 2011) (quoting Hollins v. State, 805 S.W.2d 475, 476
(Tex. Crim. App. 1991)). Even accepting as true Rivera’s factual assertion that he
only learned of the existence of the tools during the officer’s testimony, the record
indicates that at no time after the officer first mentioned the tools near the burglarized
vehicle did Rivera lodge any objection regarding the State’s failure to collect them
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as evidence. He did not move to strike or exclude the officer’s testimony regarding
the tools. He did not seek a mistrial or dismissal of the charge based on any alleged
constitutional violation, nor in any way otherwise bring to the trial court’s attention
any complaint about the tools. Rivera did not request an adverse inference
instruction or any other jury instruction related to the uncollected evidence. Finally,
he did not file a motion for new trial or any other post-judgment motion.
Accordingly, the issue was not properly raised and ruled upon in the trial court and
therefore, is not preserved for review. See Tex. R. App. P. 33.1.
We overrule Rivera’s appellate issue and affirm the trial court’s judgment.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on June 13, 2017
Opinion Delivered September 27, 2017
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
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