in the Matter of S. J. A. ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00233-CV
IN THE MATTER OF S. J. A.
From the 386th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-JUV-01793
Honorable Laura Parker, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 28, 2012
AFFIRMED
A jury found S.J.A. engaged in delinquent conduct by committing aggravated assault.
After a disposition hearing, the trial court assessed a determinate sentence of ten years. S.J.A.
appeals, raising one point of error complaining of the admission of evidence. We affirm.
S.J.A. confessed that he fired a BB gun at a vehicle that was stopped at a traffic light. The
vehicle was an unmarked county vehicle being driven by Sergeant Jose Trevino, a detective in
the Bexar County Sheriff’s Office. S.J.A., who was thirteen years old and had previously been on
juvenile probation, was charged with using and exhibiting a deadly weapon and threatening
imminent bodily injury to Trevino by shooting at and in the direction of Trevino with a BB gun.
04-12-00233-CV
During its opening statement, the State referred to an incident that occurred about a
month before S.J.A. fired the BB gun at Trevino’s car. In the previous incident, a Bexar County
Deputy Sheriff had been killed by gunfire while he was in a car stopped at a traffic light.
Sergeant Trevino had known the deputy who was killed and headed the investigation into that
shooting. The State asserted the previous incident affected Trevino’s state of mind when he
heard the shots hit his car, but did not suggest the two events were otherwise related. The State
questioned Trevino about the previous shooting incident during its direct examination and
referred to the incident in its closing argument. S.J.A. did not object to any of the evidence or
argument. Moreover, S.J.A. developed the evidence further during his cross-examinations of
Sergeant Trevino, the arresting officer, and the officer who took S.J.A.’s statement. He used the
evidence to suggest that heightened emotions resulting from the deputy’s death caused officers to
overreact to the BB gun incident and caused the State to overcharge the offense against S.J.A.
S.J.A. concedes he did not object to the evidence or argument and acknowledges that a
contemporaneous objection is generally required to preserve error. See TEX. R. APP. P. 33.1; TEX.
R. EVID. 103(a). Failure to preserve error generally results in a forfeiture of the right to complain
on appeal. Clark v. State, 365 S.W.3d 338, 339 (Tex. Crim. App. 2012). S.J.A. argues he
nevertheless may complain about the evidence because its admission rendered the trial
fundamentally unfair. See TEX. R. EVID. 103(d) (“In a criminal case, nothing in these rules
precludes taking notice of fundamental errors affecting substantial rights although they were not
brought to the attention of the court.”).
Fundamental errors that may be raised for the first time on appeal fall into “two relatively
small categories of errors: violations of ‘rights which are waivable only’ and denials of ‘absolute
systemic requirements.’” Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (quoting
Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993)); see In re C.O.S., 988 S.W.2d 760,
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04-12-00233-CV
765-67 (Tex. 1999) (holding that Marin analysis of forfeitable rights, waivable rights, and
absolute systemic requirements applies in juvenile cases). Rights that are “waivable only”
include the right to assistance of counsel, the right to trial by jury, and a right conferred by a
statute that affirmatively states the right is waivable only. Saldano, 70 S.W.3d at 888. “Absolute,
systemic requirements” include jurisdiction of the person and subject matter, the Texas
constitutional requirement that a district court must conduct its proceedings at the county seat,
the constitutional prohibition of ex post facto laws, and some constitutional restraints on
comments by the trial judge. Id. at 888-89. The right to have only relevant, admissible evidence
introduced at trial is not an absolute, systemic requirement or a right that is waivable only. Id. at
889. The failure to timely and specifically object during trial forfeits any complaint about the
admissibility of the evidence, even if the error is constitutional in nature. See id. (holding
defendant’s failure to object to testimony precludes complaint on appeal that the testimony was
offered for sole purpose of appealing to the potential racial prejudices of the jury); Estrada v.
State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011) (failure
to object to prosecutor’s allegedly incurable erroneous jury argument or to move for mistrial
forfeits right to complain about argument on appeal).
By failing to object at trial, S.J.A. forfeited his right to complain about the evidence or
argument on appeal. We therefore affirm the trial court’s judgment.
Steven C. Hilbig, Justice
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