Opp v. State

¶1dissenting.

¶2A jury convicted appellant, Kelton Howard Opp, of misdemeanor driving while intoxicated. The trial court assessed punishment at 90 days in jail and a $350 fine. In a single point of error, appellant complains that the trial court allowed the introduction of a videotape showing appellant invoking his rights to counsel and remain silent numerous times.

¶3We have the videotape before us for review, and it does have numerous invocations of rights to counsel and remain silent. The record reflects, however, that the trial court originally ruled that the volume would be turned down after .the first invocation of the right to counsel. The record does not reflect at what point the volume was actually turned down. From the prosecutor’s argument, it appears that only the audio of appellant’s refusal to take the field sobriety tests was played for the jury. The prosecutor makes no mention of appellant invoking his right to counsel on the videotape.

¶4The bottom line, as the State argues on appeal, is that we do not know at which point the trial court turned down the volume, whether it was before any invocation of a right to counsel, after the first such invocation, or after numerous invocations of appellant’s rights. Under these circumstances, we cannot address the merits of appellant’s point of error. Obviously, if the trial court turned down the volume before any invocations of appellant’s rights were played before the jury, no error is present.

¶5In the absence of a record showing us at what point the volume was turned down, I would hold that we cannot review appellant’s sole point of error. Accordingly, I would overrule appellant’s point of error, and affirm the judgment of the trial court.

¶6(Assigned), dissenting.

¶7I agree with Justice Taft that appellant, Kelton Howard Opp, did not preserve his point of error for appeal, but for a different reason than Justice Taft. The basis for appellant’s objection to the introduction of the audio portion of the videotape was “fundamental error.” Appellant did not state, with any specificity, what error was fundamentally wrong, nor why it was wrong. Thus, appellant’s objection was general, apprised the court of no specific error, and did not preserve the arguments he makes for the first time on appeal. See Butler v. State, 872 S.W.2d 227, 237 (Tex. Crim.App.1994) (holding that general objection did not preserve error on appeal).

¶8There is an exception to the rale against general objections for those situations where the trial court and the parties all understand the basis for the objection. See Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App.1993) (holding that, while general objections are discouraged, they are valid to preserve error when the ground of the objection is apparent). In this case, however, it is manifest'that, if the trial court had understood the “fundamental error” objection as contending that no invocation of the right to counsel is admissible, the trial court would have turned the volume down before appellant’s first invocation of the right to counsel, instead of thereafter. Here, there were three invocations of the right to counsel. The trial court ruled that the jury could hear the first invocation, but not the other two. Under these circumstances, it is impossible to tell what the trial court understood appellant’s objection to be. It is likewise difficult for me to understand what appellant meant when he said “fundamental error.” Accordingly, I would hold that appellant did not preserve his point of error for review.1

¶9I also note that the trial-court objection of “fundamental error” does not comport with the complaint being made to this Court, that “defendant invoked his constitutional privileges.” Nothing in appellant’s objection to the audio portion of the videotape in the trial court addresses constitutional privileges.

¶10The complaint on appeal must comport with that made in the trial court. Allridge v. State, 762 S.W.2d 146, 157 (Tex.Crim. App.1988). Otherwise, a party could “lie behind the log” and raise all manner of new matters not preserved in the trial court. This type of procedure will not be condoned.

¶11Because appellant’s complaint on appeal does not comport with his trial-court objection, I would again hold that appellant has not preserved his point for review. Therefore, I dissent.