Rotella, Joseph Benjamin ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 1627-03

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JOSEPH BENJAMIN ROTELLA, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

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Per Curiam.

O P I N I O N

A jury found Appellant guilty of assault on a household member and assessed punishment at eight years. The Court of Appeals affirmed the conviction finding that Appellant had not preserved error on his complaints of improperly admitted evidence because he did not object every time the evidence was offered. Rotella v. State, No. 01-02-00719-CR (Tex. App. -- Houston [1st Dist., July 10, 2003). The Court of Appeals held that Appellant failed to preserve error because he did not object to the State's attempts to elicit testimony about Appellant departing the location of this offense on his way to "Crackville."

Appellant has filed a petition for discretionary review contending the Court of Appeals erred to conclude that he had not preserved error. Appellant asserts that he did object to the questions about "Crackville" and that no objection was required when a defense witness testified regarding this statement, because the evidence was offered to explain the previously objected to evidence.

In a pretrial hearing, outside the presence of the jury, Appellant objected to the admission of the tape of the 911 call that was made by a witness. In that hearing, the trial court ruled that the "Crackville" evidence was admissible. This preserved error concerning "Crackville" and there was no need to repeat the objections to that evidence. Tex.R.Evid. 103(a)(1). Appellant also renewed his pretrial objection when this evidence was admitted during trial. The only mention of "Crackville" that occurred without objection came from the defense in an effort to explain the statement, and Appellant was entitled to present testimony to "meet, destroy or explain" the evidence without waiving his complaint for appeal. Leday v. State, 983 S.W.2d 713, 719 (Tex.Crim.App. 1998).

The Court of Appeals erred in concluding that the alleged errors were not preserved in the instant case. Accordingly, we grant Appellant's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals for consideration of Appellant's first point of error.  

Date delivered : June 9, 2004

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