Opinion
NUMBER 13-16-00537-CR
10-05-2017
RODNICO RONDAE ERVIN, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 54th District Court of McLennan County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Rodnico Rondae Ervin appeals his conviction for possession of a controlled substance with intent to deliver in a drug-free zone. Ervin notes that following his arrest, the officer who allegedly discovered narcotics in his home was suspended for his actions involving another drug investigation. By two issues, Ervin complains that the trial court wrongfully denied his attempt to cross-examine various witnesses at trial concerning the officer's suspension, violating the Confrontation Clause and the Texas Rules of Evidence. Because Ervin did not preserve either issue, we affirm.
I. BACKGROUND
The facts of the case are largely undisputed on appeal. On November 17, 2015, the Waco Police Department executed a no-knock search warrant upon a residence located in McLennan County, Texas. After a SWAT team secured the premises, the department's Drug Enforcement Unit (WDEU) began a search for drug evidence. In the kitchen, WDEU investigators discovered a bag containing 13.45 grams of methamphetamine, a bag of marijuana, a high-capacity handgun magazine, a large bottle of Promethazine cough syrup, and a digital scale.
This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through Ch. 49, 2017 R.S.).
Several investigators with the WDEU testified at trial: Chet Doughty, Anita Johnson, Brianna Simpson, Darryl Moore, and Chester Long. However, at least one member of the investigating team did not testify: David Starr. The investigating officers all agreed that it was Starr who first discovered methamphetamine in a kitchen drawer, which also contained a digital scale and multiple plastic baggies. Moore testified that he was responsible for photographing the scene, and it was Starr who called him over to the drawer to take pictures of its contents. Long, the lead investigator, explained that Starr discovered and collected "every piece of evidence" involved in the case. Similarly, Johnson testified that she was responsible for documenting the evidence at the scene and delivering it to the department's property room or laboratory as necessary. Johnson stated that she received all of the relevant evidence from Starr.
However, Ervin's trial counsel then broached the topic of Starr's suspension—which is the subject of this appeal—and the following exchange took place:
[ERVIN]: And is it fair that in many cases where evidence is collected, you don't actually see the location where it's collected from, just the individual that brings it to you says I found this in the kitchen or I found this in the bathroom or I found it?
[JOHNSON]: That's correct.
[ERVIN]: And in this case, each piece of evidence was collected by Investigator David Starr, correct?
[JOHNSON]: That's correct.
[ERVIN]: And Investigator Starr is currently suspended from the Waco Police Department?
[THE STATE]: I'm going to object to relevance.
[ERVIN]: Your Honor, I think the status of the officer who located and collected the evidence in this case is relevant to this jury.
[THE STATE]: I don't believe it has any relevance to this particular witness. It's asking about some other person who is not on the witness stand currently. It's a completely side issue.
[ERVIN]: It is the individual who brought the evidence to Investigator Johnson to be marked, Your Honor.
THE COURT: Let me see the lawyers in the back just one second.
(In chambers, off the record.)
(Open court, defendant and jury present.)
The trial court instructed the jury to disregard Ervin's question concerning the suspension.
[ERVIN]: May I proceed, Your Honor?
[THE STATE]: May we get a ruling on the objection to the question as to relevance?
THE COURT: Your objection is sustained.
Later, Ervin made an offer of proof concerning the suspension. Ervin recalled Johnson, who confirmed that both Starr and another member of the WDEU, Commander Clare Crook, had been "removed from active duty after an event with the District Attorney's office as it related to disclosing information about a drug investigation." Ervin also recalled Moore, who confirmed that both officers had been suspended. Beyond these basic facts, Ervin elicited no further detail from either witness concerning the suspensions or their relation to this case. During his offer of proof, Ervin did not make any further argument concerning the admissibility or necessity of this testimony.
Following the close of evidence, the jury convicted Ervin of possession of methamphetamine with intent to deliver, in an amount more than four grams but less than 200 grams, a felony of the first degree. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West, Westlaw through Ch. 49, 2017 R.S.). The jury further found that Ervin committed this offense within 1,000 feet of a school, see id. § 481.134(c)(1) (West, Westlaw through Ch. 49, 2017 R.S.), and that he had been previously convicted of felony burglary of a habitation. See TEX. PENAL CODE ANN. § 12.42(c)(1) (West, Westlaw through Ch. 49, 2017 R.S.). The jury assessed punishment at fifty years' confinement. This appeal followed.
II. PRESERVATION
By two issues, Ervin contends that the trial court wrongfully denied him the opportunity to attack the credibility of the WDEU, the investigator who located and collected the evidence, and the evidence against him. Ervin asserts that in doing so, the trial court abused its discretion under the Texas Rules of Evidence and violated his rights under the Confrontation Clause of the Sixth Amendment. The State responds that Ervin failed to preserve either of these issues for appeal. We agree with the State.
A. Applicable Law
Preservation of error is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). To preserve error, the complaining party must let the trial court know what he wants and why he thinks he is entitled to it, and do so clearly enough for the court to understand and at a time when the trial court is in a position to do something about it. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014); Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008). "We are not hyper-technical in examination of whether error was preserved, but the point of error on appeal must comport with the objection made at trial." Bekendam, 441 S.W.3d at 300; see TEX. R. APP. P. 33.1(a). The issue is not whether the trial court's ruling is legally correct in every sense, but whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). Where the proponent makes an insufficiently specific offer of proof in the trial court, the consequence is waiver on appeal. See id. at 178.
B. Discussion
On appeal, Ervin does not argue that the excluded testimony was relevant. Instead, he contends that by denying him the opportunity to cross-examine various witnesses concerning Starr's suspension, the trial court offended the Confrontation Clause and the rules of evidence concerning cross-examination. However, Ervin raised neither of these arguments before the trial court. Instead, a review of the record reveals that the only basis for admissibility which Ervin raised before the trial court was relevance. See TEX. R. EVID. 401. Accordingly, Ervin has not fulfilled the systemic requirement to preserve the arguments he raises on appeal. See Ford, 305 S.W.3d at 532; Reyna, 168 S.W.3d at 177 ("[I]t is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible."); see also Pearce v. State, No. 10-12-00353-CR, 2014 WL 942687, at *4 (Tex. App.—Waco Jan. 16, 2014, no pet.) (not designated for publication) (relying on Reyna to conclude that because appellant never explained to the trial court why the Confrontation Clause or the rules of evidence concerning cross-examination "demanded admission of the [cross-examination] evidence," appellant did not preserve either issue for review). We recognize that this outcome is severe, required though it may be by controlling precedent.
We overrule Ervin's first and second issues on appeal.
III. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice Concurring Memorandum Opinion by Justice Benavides. Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 5th day of October, 2017.