Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00533-CR
Dennis RIVERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR8512
Honorable Sid L. Harle, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: May 15, 2013
AFFIRMED
The sole complaint raised in this appeal is that the trial court abused its discretion in
admitting testimony by the complainant regarding Dennis Rivera’s commission of a prior
homicide. Rivera contends the testimony was evidence of an extraneous offense that should
have been excluded under Rule 403 or Rule 404(b) of the Texas Rules of Evidence. Because
Rivera failed to preserve his complaint with a timely objection, we affirm the trial court’s
judgment.
04-12-00533-CR
PROCEDURAL HISTORY
Rivera was charged with aggravated assault with a deadly weapon on a family member.
Before trial, the trial court granted Rivera’s motion in limine regarding his commission of a prior
unadjudicated homicide. During the complainant’s testimony, the complainant stated that Rivera
told her that he had “killed somebody.” No objection was made by defense counsel until the
conclusion of the State’s direct examination of the witness. 1
PRESERVATION OF ERROR
To preserve an issue for appellate review, a party must timely object, stating the specific
legal basis for the objection. TEX. R. APP. P. 33.1(a)(1). An objection is timely if made at the
earliest opportunity or as soon as the grounds for the objection become apparent. Gillenwaters v.
State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006); Batiste v. State, 217 S.W.3d 74, 81 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). “[T]he failure to object in a timely and specific
manner during trial forfeits complaints about the admissibility of evidence.” Saldano v. State, 70
S.W.3d 873, 889 (Tex. Crim. App. 2002). In this case, counsel’s objection to the witness’s
statement was untimely.
Acknowledging that the objection was untimely, Rivera suggests that this court review
the admission of the extraneous offense as fundamental error. Both the Texas Court of Criminal
Appeals and this court, however, have refused to review the admission of an extraneous offense
as fundamental error. See Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980) (“failure
to object waives any error in admission of evidence tending to show an extraneous offense”);
Smith v. State, 961 S.W.2d 501, 506 (Tex. App.—San Antonio 1997, no pet.) (rejecting
contention that admission of extraneous offense evidence is “egregious enough to be the basis of
a reversal where [the claimed error was] unpreserved at trial”).
1
The objection appears in the record approximately forty pages after the complainant made the statement.
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04-12-00533-CR
CONCLUSION
Because Rivera failed to preserve his complaint regarding the admission of the
complainant’s statement referencing a prior unadjudicated homicide, his complaint is overruled,
and the trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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