Kelly Richard Unterburger v. State

IN THE
TENTH COURT OF APPEALS
No. 10-12-00361-CR
KELLY RICHARD UNTERBURGER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F45846
MEMORANDUM OPINION
Kelly Richard Unterburger was charged and convicted of possession of a
controlled substance, cocaine, less than one gram. TEX. HEALTH & SAFETY CODE ANN. §
481.115(a), (b) (West 2010). He was sentenced to two years in State Jail, which was
suspended, and placed on community supervision for five years. We affirm the trial
court’s judgment.
Unterburger and his girlfriend were stopped by a DPS trooper for speeding.
After obtaining consent to search the vehicle from Unterburger’s girlfriend, who was
the owner of the vehicle, the DPS trooper located various drug paraphernalia and
cocaine residue in a white bag in the back of the vehicle. Unterburger admitted to
possession of a black toiletry bag within the white bag, having a white bag similar to the
white bag in the vehicle, and having packed the white bag.
On appeal, Unterburger argues that the trial court erred in admitting certain
extraneous offense evidence, that being drug paraphernalia, because it was offered to
prove character conformity in violation of Rule 404(b) of the Texas Rules of Evidence. A
trial court's ruling on the admissibility of extraneous offenses is reviewed under an
abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial
court's ruling is within the “zone of reasonable disagreement,” there is no abuse of
discretion, and the trial court's ruling will be upheld. De La Paz, 279 S.W.3d at 343–44;
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on rh'g).
It appears that Unterburger takes issue with all the drug paraphernalia evidence
admitted, that being State’s Exhibits 2-25. However, at trial, objections were raised only
as to Exhibits 7-10 and 17, 18, and 21. To the extent Unterburger contests the
admissibility of any exhibit other than these seven exhibits, those arguments are not
preserved for our review. TEX. R. APP. P. 33.1.
Unterburger v. State Page 2
Unterburger objected to the admission of various objects, and photographs of
those objects, found inside the white bag. Those objects are: a plastic gum container
and the photograph thereof; a photograph of white powder in a plastic baggie which
was found in the plastic gum container; a Tupperware container with a crusty white
residue and the photograph thereof; and cotton balls and the photograph thereof.
To preserve a complaint about the illegal seizure of evidence, a defendant must
either file a motion to suppress and obtain a ruling on the motion or timely object when
the State offers the evidence at trial. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1);
Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App.1984); Ratliff v. State, 320 S.W.3d 857,
860–61 (Tex. App.—Fort Worth 2010, pet. ref'd). If the defendant waits until the State
offers the evidence at trial, the objection to the evidence must be made before a witness
gives substantial testimony about it. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim.
App. [Panel Op.] 1980) (explaining that an objection to evidence “must be urged at the
earliest opportunity”); Ratliff, 320 S.W.3d at 261.
Prior to the offer and admission of the photographs and objects, the trooper
testified about each of the objects: what it looked like, where it was found, and what its
significance was to the trooper, all without objection. No objection was raised until
first, the photograph of the object, and next, the object itself, was offered into evidence.
Unterburger v. State Page 3
This is too late. Thus, Unterburger’s complaints as to State’s Exhibits 7-10, 17, 18, and
21 are waived.1
Unterburger’s sole issue is overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 12, 2013
Do not publish
[CR25]
1Nevertheless, because the State had to prove Unterburger knew that he possessed cocaine, see Poindexter
v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.2005); Santiesteban-Pileta v. State, 10-12-00154-CR, 2013 Tex.
App. LEXIS 7515 (Tex. App.—Waco June 20, 2013, no pet.) (publish), the paraphernalia was admissible to
prove knowledge. See TEX. R. EVID. 404(b).
Unterburger v. State Page 4