Miguel Garcia Ugarte v. State ( 2006 )

Affirmed and Opinion filed July 25, 2006

Affirmed and Opinion filed July 25, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00859-CR

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MIGUEL GARCIA UGARTE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 883,534

O P I N I O N

A jury convicted Miguel Garcia Ugarte of murder and sentenced him to confinement for eighteen years in the Institutional Division of the Texas Department of Criminal Justice.  In his sole issue, appellant argues the trial court erred in denying his constitutional right to confrontation in violation of the Federal and Texas constitutions.  Because appellant has failed to preserve error on this issue, we affirm.

I.  Factual and Procedural History

Appellant does not deny that he shot and killed Edin Suarez; however, appellant contends he acted in self-defense.  Both appellant and eyewitness Norma Porras testified that appellant and Suarez argued by telephone on the day of the shooting.  However, when appellant=s trial counsel cross-examined Porras regarding statements Suarez made to appellant, the trial court sustained the State=s hearsay objections.  Appellant did not inform the trial court of the purpose of questions, or the testimony the questions were expected to elicit.  On appeal, appellant contends the trial court erred in sustaining the State=s hearsay objection to such testimony because in doing so, the trial court violated his Sixth Amendment right to confrontation and hampered his ability to adequately present his claim of self-defense.  Appellant also contends for the first time on appeal that the hearsay evidence was not being offered for the truth of the matter asserted.

II.  Analysis

To preserve error, there must be a timely, specific request, objection, or motion.  See Tex. R. App. P. 33.1.  Even constitutional error may be waived by failure to raise the issue at trial.  See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (en banc) (holding that, by failing to object, appellant waived claim that admission of videotape violated his rights to confrontation and due process/due course of law).  Specifically, a defendant waives his constitutional right to confront witnesses if he does not object to the denial of that right at trial.  Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991) (en banc) (holding that appellant=s hearsay objection did not preserve claim that evidence violated appellant=s right of confrontation); Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (emphasizing that hearsay objections and objections to violations of the constitutional right of confrontation are not synonymous; thus, appellant=s failure to object on the basis of the confrontation clause waived appellant=s right to confront witnesses); Saldivar v. State, 980 S.W.2d 475, 496 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d) (holding that appellant=s objection to hearsay and failure to object on the ground that the hearsay admission violated appellant=s right to confrontation was insufficient to preserve error).  

The same Araise it or waive it@ rationale applies to the proffer of evidence.  See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005); Martinez v. State, 91 S.W.3d 331, 335B36 (Tex. Crim. App. 2002).  Just as a party seeking to exclude evidence must state the basis of his objection, a party seeking to introduce evidence must meet an objection with argument stating the basis for its admission.  See Reyna, 168 S.W.3d at 179 (holding that defendant waived his claim that the exclusion of evidence violated his rights under the Confrontation Clause where, in response to the State=s objection, the defendant Adid not argue that the Confrontation Clause demanded admission of the evidence.@); see also Tex. R. Evid. 105(b) (when evidence that is not admissible for all purposes is excluded, Asuch exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence for its limited, admissible purpose . . . .@) (emphasis added).  In response to a hearsay objection, A[t]he proponent of an out-of-court statement, not the trial court, is required to specify which exception to the hearsay rule he is relying upon or to specify how the evidence is not hearsay.@  Oveal v. State, 164 S.W.3d 735, 742 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d), cert. denied, C U.S. C, 126 S. Ct. 1917, 164 L. Ed. 2d 671, 74 U.S.L.W. 3617 (2006).  If the proponent of the evidence does not clearly articulate that the Confrontation Clause requires the admission of the challenged evidence, he fails to do Aeverything necessary to bring to the judge=s attention the evidence rule or statute in question and its precise and proper application to the evidence in question@ and error is not preserved.  Reyna, 168 S.W.3d at 179B80 (quoting Martinez, 91 S.W.3d at 335B36).  It is not enough to merely attempt to introduce the evidence, or Ato tell the judge that evidence is admissible.@  Id. at 177.  AThe proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible.@  Id. (emphasis added).  Because the appellant failed to apprise the trial court of a basis on which to admit the challenged out-of-court statements, appellant has not preserved this issue for appeal. 

III.  Conclusion

Because appellant failed to preserve error, we overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/      Eva M. Guzman

Justice

Judgment rendered and Opinion filed July 25, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).