Rodney Edward Howard v. State

  NUMBER 13-03-384-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

RODNEY EDWARD HOWARD,                                            Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 351st District Court

of Harris County, Texas.

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MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

            Appellant, Rodney Edward Howard, brings this appeal following a conviction and thirty-two year sentence for possession of a controlled substance. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). By two points of error, appellant contends the trial court committed reversible error in admitting certain testimony over objection. We affirm.

I. FACTS

         As this is a memorandum opinion, and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. PRESERVATION OF ERROR

         By two points of error, appellant contends the trial court erred in admitting an officer’s testimony that appellant did not give a written or oral recorded statement when the officer tried to obtain identifying information. Appellant claims the testimony regarding his post-arrest silence violated his state and federal rights to remain silent. See U.S. Const. amend. V; Tex. Const. art. I, § 10.

         To preserve error for appellate review, a party must make a timely, specific objection at the earliest possible opportunity. Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Generally, an objection should be made as soon as the ground for objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If a defendant fails to object until after an objectionable question has been asked and answered, his objection is untimely and error is waived, unless the defendant can show a legitimate reason to justify the delay. Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355. In addition, even constitutional errors may be waived. See Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974).

         In this case, appellant failed to preserve error because his objection came after the question was asked and answered and appellant did not show a legitimate reason justifying the delay in objecting. See Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355. The officer was asked whether appellant had given any written or oral recorded statement, the officer answered in the negative and defense counsel subsequently objected. The objection was untimely, as it should have been made as soon as the ground for objection became apparent. See Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355.

         For these reasons, we find the objection was untimely, and therefore, appellant failed to preserve error. Appellant’s two points of error are overruled.

III. CONCLUSION

         Accordingly, the judgment of the trial court is affirmed.   

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 29th day of July, 2004.