Tommie Kelly v. State ( 2012 )

Affirmed and Memorandum Opinion filed September 20, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00628-CR
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TOMMIE KELLY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1267760
MEMORANDUM OPINION
Appellant, Tommie Kelly, appeals from his conviction for aggravated sexual assault
of a child under fourteen years of age. Tex. Penal Code Ann. § 22.021 (West 2011). We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2010, a complaint was filed alleging that appellant sexually assaulted a
child younger than fourteen years of age. Appellant was taken into custody and defense
counsel was appointed on June 23, 2010. Appellant was indicted on September 16, 2010.
On September 29, 2010, appellant and his defense counsel appeared in court.
During that court appearance, the trial court lowered appellant’s bond and ordered that
appellant provide a DNA sample. Included in the appellate record is a Precept to Serve
that establishes appellant was served with the trial court’s September 29, 2010 DNA order
that same day. The following day, September 30, 2010, the State filed a motion asking for
the trial court to enter an order requiring appellant to give a DNA sample. The State’s
motion does not include a certificate of service on appellant’s counsel. The trial court
signed the attached order the same day and a second Precept to Serve establishes that
appellant was served with the September 30, 2010 order on October 5, 2010. Appellant
and his defense counsel appeared in court nine times between the entry of the orders
requiring him to provide a DNA sample and his decision to enter a guilty plea on May 25,
2011. During that time period appellant filed numerous motions, but none addressed the
State’s motion asking the trial court to order appellant to provide a DNA sample or the trial
court’s entry of the two DNA orders.
On May 25, 2011, appellant pled guilty to the offense and signed a judicial
confession. In that judicial confession, appellant specifically consented to the admission
of the stipulation of evidence, introduction of affidavits, written statements, and other
documentary evidence. At the time of his guilty plea, appellant requested the preparation
of a presentence investigation report.
The presentence investigation hearing was held on July 21, 2011. The State called
no witnesses during that hearing. During closing argument, the State did mention the
existence of DNA evidence when the prosecutor said:
Judge, it appears the only time that he stepped up or tried to take any
responsibility is when he was confronted with the fact that the DNA found on
the rape exam actually belonged to him.
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Appellant made no objection to the State’s argument. At the conclusion of the hearing,
the trial court found appellant guilty of the offense of aggravated sexual assault of a child
and sentenced him to be imprisoned for 11 years. This appeal followed.
DISCUSSION
Appellant brings a single issue on appeal: the trial court erred when it granted the
State’s motion for a buccal swab. Within that single issue, appellant asserts that the
State’s motion was an ex parte communication and the trial court granted the motion with
no notice to appellant and without giving him an opportunity to respond. Appellant also
argues that the resulting DNA test was an illegal warrantless search. The State responds
appellant failed to preserve his issue for appellate review. We agree with the State.
The Court of Criminal Appeals has determined that preservation of error is a
systemic requirement and that it is the duty of appellate courts to “ensure that a claim is
preserved in the trial court before addressing its merits.” Ford v. State, 305 S.W.3d 530,
532 (Tex. Crim. App. 2009). This is true even if, unlike here, the State has not raised a
preservation question. Id. at 532–53.
To properly preserve an issue for appellate review, “all a party has to do … is to let
the trial judge know what he wants, why he thinks himself entitled to it, and to 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.” Id. at 533 (quoting Lankston v. State, 827 S.W.2d 907, 909
(Tex. Crim. App. 1992)). When the defendant contends evidence was unlawfully seized,
he can challenge the admissibility of that evidence through a pretrial motion to suppress or
by waiting until the trial and then lodging an objection when the State offers the evidence.
Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977). The Court of Criminal
Appeals has consistently held that the failure to timely and specifically object during trial
forfeits complaints about the admissibility of evidence. Saldano v. State, 70 S.W.3d 873,
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889 (Tex. Crim. App. 2002). This also applies when the alleged error concerns a
constitutional right of the defendant. Id.
Prior to pleading guilty, appellant did not file a motion to suppress or indicate in any
manner that he believed the orders to take a buccal swab and subsequent DNA sampling
violated his constitutional rights. In addition, during the presentence investigation
hearing, appellant did not object to the prosecutor’s argument that referenced the DNA
evidence at issue here. We hold appellant failed to preserve his complaint for appellate
review. We overrule his issue on appeal.
CONCLUSION
Having overruled appellant’s issue on appeal, we affirm the trial court’s judgment.
/s/ Margaret Garner Mirabal
Senior Justice
Panel consists of Justices Frost, McCally, and Mirabal.1
Do Not Publish — TEX. R. APP. P. 47.2(b).
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Senior Justice Margaret Garner Mirabal sitting by assignment.
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