Rezac v. State

• Decision Date: 17 January 1990
• Docket Number: No. 072-87,072-87
• Citation: Rezac v. State, 782 S.W.2d 869 (Tex. Crim. App. 1990)
• Parties: Larry Joe REZAC, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 869

782 S.W.2d 869

Larry Joe REZAC, Appellant, v. The STATE of Texas, Appellee.

No. 072-87.

Court of Criminal Appeals of Texas En Banc.

Jan. 17, 1990.

Linda J. Ham, Dallas, for appellant.

Henry Wade, Former Dist. Atty. and John Vance, Dist. Atty. and Constance M. Maher and Michael A. Klein, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

Opinion on State's Petition for Discretionary Review

CAMPBELL, Justice.

Appellant was convicted by a jury of driving while intoxicated. He was sentenced to ninety days' confinement in the Dallas County Jail, probated for two years, and a $500 fine. In a published opinion, the Dallas Court of Appeals reversed appellant's conviction, holding that the audio portion of the video tape made of appellant at the police station should not have been played to the jury because it contained appellant's request for counsel. Rezac v. State, 722 S.W.2d 32 (Tex.App.--Dallas 1986). We granted the State's petition to determine: (1) whether the Court of Appeals erred in reversing appellant's conviction on unassigned and unpreserved error; (2) whether the Court of Appeals relied upon the wrong case law in reversing appellant's conviction; and (3) whether the Court of Appeals' implicit finding that the playing of the video tape was fundamental error is contrary to the facts of this case. ¹ We will reverse the Court of Appeals.

In its first ground for review, the State makes two similar, but unrelated, points: First, that the Court of Appeals could not reverse appellant's conviction based on unassigned error; and second, appellant waived this error by failing to make a timely objection at trial. Appellant responds by denying the State's characterization of the facts, but positing no additional legal argument.

Once an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute. Perry v. State, 703 S.W.2d 668, 670 (Tex.Cr.App.1986); Carter v. State, 656 S.W.2d 468, 468-69 (Tex.Cr.App.1983). The State fails to argue in what way the Court of Appeals abused its discretion and fails to cite any restrictive statute that would prohibit the Court of Appeals' actions. The State's contention that the Court of Appeals erred by addressing unassigned error is overruled.

In order for an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for the objection. E.g., Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977). An objection stating one legal basis may not be used to support a different legal theory on appeal. Id.

Here, when the video tape was offered into evidence the trial judge inquired about any defense objection:

THE COURT: Ms. Ham [defense attorney], other than the matters about which you made reference to during the pre-trial [sic] hearing, do you have any further objection?

MS. HAM: No further objections other than my pre-trial [sic].

THE COURT: The defense objection is overruled.

Thus, defense counsel limited her objection to the grounds stated in her pretrial motion. That motion stated, in relevant part:

On or about November 1, 1984, the Defendant was arrested for the offense of Driving While Intoxicated; and subsequent to that arrest, the Defendant was placed in a room at the Lew Sterrett Justice Center where a video tape machine recorded the proceedings. No probable cause existed for the video tape recording of Defendant.

The law enforcement officers requested that the Defendant submit to a breath and/or blood test. The Defendant requested at that time that he be allowed to contact an attorney. The officers refused to allow him to contact an attorney.

The admission of the evidence of the...