TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00079-CR

Erik James Mendoza, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW OF COMAL COUNTY

NO. 2000CR1182, HONORABLE BRENDA CHAPMAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Erik James Mendoza guilty of evading arrest. Tex. Pen. Code Ann. 

' 38.04 (West Supp. 2003). The court assessed punishment at incarceration for 220 days and an $800 

fine, but suspended imposition of sentence and placed appellant on community supervision. In a single point 

of error, appellant contends the court erred by admitting in evidence a statement he made. We overrule this 

contention and affirm the conviction.

Department of Public Safety Trooper James Jones saw appellant make an unlawful pass on 

his motorcycle. When Jones approached appellant from the rear and turned on his emergency lights to 

signal him to stop, appellant did not respond. Jones testified that he pursued appellant for five miles before 

he stopped.
2

Appellant filed a motion to suppress all statements he made following the stop. At a pretrial 

hearing, the court granted the motion with respect to statements made by appellant to Trooper Jones 

immediately following the stop. Because a necessary witness was unable to appear for the pretrial hearing, 

the court reserved until trial its ruling on the admissibility of appellant=s later statements.1

During trial, at a hearing outside the jury=s presence, New Braunfels Police Officer John 

Sullivan testified that he was in the booking area of the county jail on other business when he overheard 

appellant tell someone, either a jailer or another prisoner, AI was going about 160 miles an hour.@ Appellant 

objected to the admission of this statement on the ground that it was hearsay and Apotentially custodial 

interrogation.@ The objections were overruled and the officer later gave the same testimony before the jury.

 

 

1

 The reporter=s record does not contain this pretrial hearing. We infer what happened from 

statements made by the parties at trial and at the motion for new trial hearing.
3

Following his trial, appellant filed a motion for new trial urging that the Averdict in this cause 

is contrary to the law and the evidence.@ He later filed an untimely amended motion for new trial in which he 

argued that the remark overheard by Sullivan should have been suppressed because it was the product of 

custodial interrogation, that he had not been advised of his rights, and that he would not have responded to 

the interrogation had he not already made substantially similar statements to the arresting officer. See 

Griffin v. State, 765 S.W.2d 422, 428 (Tex. Crim. App. 1989) (Acat-out-of-the-bag theory@); but see In 

re R.J.H., 79 S.W.3d 1, 7-8 (Tex. 2002). At a hearing, the court agreed to consider the untimely amended 

motion for new trial solely as a brief in support of appellant=s earlier motion. The court ruled that it was too 

late for appellant to offer evidence challenging the admissibility of the statement, however, and overruled the 

motion for new trial without hearing testimony. Appellant was allowed to make an offer of proof, in which 

he testified that he was questioned at the jail by Deputy De La Fuentes about the circumstances of his 

arrest.2 He said he answered the deputy=s questions because he wanted to tell his side of the story. He said 

that when asked how fast he was going, he answered that he did not know, thus implicitly denying that he 

ever said that he was driving 160 miles-per-hour.

Objections to the admission of evidence must be made at the earliest opportunity. Tex. R. 

Evid. 103(a)(1); Tex. R. App. P. 33.1(a). Appellant did not testify at the mid-trial hearing for the limited 

purpose of challenging the admissibility of the overheard statement and did not seek to raise his contention 

under Griffin until the untimely motion for new trial. The county court at law properly ruled that appellant=s 

 

 

2

 De La Fuentes also testified outside the jury=s presence during trial. He said that he never spoke 

to appellant, but that he also overheard him bragging about his speed. The court did not permit De 

La Fuentes to testify before the jury because his name was not on the State=s witness list.
4

proffered testimony at the new trial hearing came too late. We also note that in his offer of proof, appellant 

did not testify that he would not have made the statement at issue but for his earlier statements to Jones; to 

the contrary, appellant denied making the statement at all. Thus, even appellant=s offer of proof did not raise 

an issue under Griffin. See Griffin, 765 S.W.2d at 430.
5

Appellant=s sole point of error was not properly preserved and is without merit on the 

record before us. We overrule the point of error and affirm the judgment of conviction.

___________________________________________

Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: February 27, 2003

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