Gary Salinas v. State ( 2000 )

NUMBER 13-98-639-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

GARY SALINAS

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 94th District Court of Nueces County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Seerden, Dorsey, and Kennedy⁽¹⁾

Opinion by Justice Kennedy

Appellant was indicted for capital murder and two counts of attempted capital murder.⁽²⁾

Based upon the jurors' answers in the punishment phase, the court assessed punishment at confinement for life in the first count for capital murder, and, also, confinement for life in the second count.

A summary of the evidence shows that on the occasion in question, two brothers, who owned a convenience store, and an employee were in the store when a young man with a bandana over his face and holding a pistol entered the store and demanded money. The young man was wearing a red sweatshirt with a hood. Even though each of the brothers offered to comply with the robber's demands, the robber proceeded to shoot both of them. One of the brothers died and the other survived the shooting. Two witnesses saw a man wearing a red warm-up top with a hood flee the store. The second witness to see the man testified that he ran into a park and reappeared riding a red bicycle. This witness saw a portion of the robber's face. He identified appellant as the man he had seen fleeing the store, both in a photo line-up and in court.

The police began a door-to-door search of the neighborhood and located a red bicycle in the back yard of a home. They received permission to search this home and found appellant trying to hide under a bed. A red hooded sweatshirt was found in the home.

Appellant gave a false name to the officer. He was taken into custody and taken to jail to be fingerprinted. On the way to the jail he said to the officers, "You got me."

In the course of further investigation, the officer who had taken over the investigation received notice that the eight-year old child⁽³⁾ of the woman whose house in which appellant was found was talking about the occurrence in school. The officer questioned the child and the interview was videotaped. During the interview, the child said several things that implicated appellant in the robbery.⁽⁴⁾ However, at trial he said that he did not remember saying several things he had said during the taping of his statement to the investigating officer.

The child's videotape was introduced at trial to impeach his courtroom testimony by showing a prior inconsistent statement. This is the subject of appellant's one issue, which is:

Whether the court erred in admitting into evidence a hearsay statement of state's witness [the child] that was offered by the state to impeach the witness

The state argues that no proper objection was made to the introduction of the child's statement. When the state first asked the investigating officer, "Can you please tell us what [the child] said regarding Gary taking his bicycle?" The officer replied, "Well basically at first [the child] ­ ." At this time defense counsel said, "Objection, Your Honor." The court then said, "Okay. It's covered under 801, subsection E, subsection 1, exception to the rule. Have a seat."

Appellant argues that he was cut off from saying any more by way of an objection.⁽⁵⁾ However, from the manner in which the court reporter's notes indicate what happened, as stated above, verbatim, it appears that defense counsel had made his only objection, i.e., "Objection, Your Honor." Following this exchange, the officer summarized the tape and the prosecutor tendered the tape into evidence. Defense counsel requested a hearing outside the jury's presence, which was granted, and stated as follows to the court:

Mr. Kolpack: Your Honor, the defense objects on the basis that, No. one, [number one] the court found that [the child] was competent to testify and, in fact he did testify. The witness, therefore, was available to the court and to the jury. Due process and confrontation issues will be violated here. We are unable to cross-examine as we were able to before. We cannot cross-examine a video. We are unable to object to the leading questions which we anticipate are on the video since we have seen the video, and this is simply a bolstering of the previous testimony that has gone on prior to this offered evidence. The jury is able to give weight to any previous testimony. This ­ this bolstering is inadmissible bolstering, and we would ask that this matter be left before the jury.

Also, defense counsel objected as follows:

Mr. Kolpack: The statement is being offered, Your Honor, not to impeach but to bolster. [The child] did testify, although his testimony went back and forth, his final testimony was evident to the court.

Defense counsel then asked for a running objection which was denied by the court. He then requested permission to make a bill at a later date and permission was granted, however, the record does not show that such a bill was ever made. At this point the tape was admitted into evidence.

Appellant argues that the proper predicate for impeachment of the witness was not made under Rule 613(a) of the Texas Rules of Evidence. This rule states as follows:

RULE 613. PRIOR STATEMENTS OF

WITNESSES: IMPEACHMENT

AND SUPPORT

(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at the time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

This point was not raised by appellant's objection at trial and is raised on appeal for the first time. His claimed objection is miscited in his brief by page and line. The objection made was the objection referred to earlier. An appellate complaint that does not comport with the trial objection presents nothing for review. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1999) on motion for rehearing. An error presented on appeal will not be considered if it varies from the specific objection made during trial. Jones v. State, 825 S.W.2d 470, 472 (Tex. App. ­ Corpus Christi 1991, pet refd.)

We deny the relief sought in appellant's sole issue and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 20th day of July, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1998).

2. The third count was not submitted to the jury.

3. Because of his age, this witness will be referred to in this opinion as "the child."

4. Before the tape was tendered, in describing what was on the tape the officer said: "Basically at the beginning of the tape identified him, identified myself, we went through that. At one time [the child] told me his mother would not want him to talk to me. I advised him that this was a case where a murder had occurred and his mother would probably want him to talk to me due to the severity of the case and then he went on to say that on the night before Gary Salinas took his bike to go do something at the Times Market. He went to get some beer and that he was wearing a red tee-shirt with a hood on it, and we went on to try to describe the red tee-shirt, and he ­ we asked him about if it was a coat, a shirt, or something with a hood on it. He described a red tee-shirt with a hood on it that was what Gary Salinas was wearing on that night and that shortly after he took the bike he came running back, entered the house through the back door and that he threw the red tee-shirt on a room that was attached to the house, and he had been found in his mother's bedroom by the police."

5. Even if defense counsel was cut off in his first attempt to object, the record shows, as hereinafter stated, two other opportunities for him to make whatever objection he chose to make.