COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

THEODEN TAF OYA, Appellant,

v.
THE STATE OF TEXAS, Appellee
. § § § § § § No. 08-08-00214- CR

Appea l from the 41st District Court of El Paso County , Texas (TC# 20050D02000)

O P I N I O N This is an appea l of a c onviction for murde r and a g g rava ted assault. A jury

found Appellant guilty

and sente nced to him to 55 y ear s’ imprisonment for murde r and 30 year s’ for ag g rava ted assault. He appea ls on the basis that the court e rre d in admitting the out-of- court statement by

J ason Na umis to t he police in violation of the Confr ontation Clause. On Fe bruar

y 16, 2005, Appellant, known a s “Chico,” tele phoned Apr il Garc ia re peate dly , despite her

objections. Soon after

war ds, Ms. Garc ia hea

rd a knoc k on the door of a house she share d with her husband, Mr . J ason Na umis, and a fr iend, Mr. F ranc isco Aleman. When she opened the inner door, she could not see a ny body on the porc h. But Ms. Ga rcia was sca red, a nd she we nt to ge t her husband, but c ould not wake him. She then g ot Mr. Aleman up a nd he we nt to the front door. Moments later, Mr. A leman ra n past Ms. Garc ia, who wa s then in the kitchen, to his room. He w as holding his arm, so she followe d him to his room. She found him lying on the floor and sha

king. Ms. Ga

rcia then went ba ck to the fr ont of the house, a nd found Appe llantwaiting , holding a rifle. He forc ed her

to wake Mr . Naumis and then or dere d them both into the living room. Ms. Garc ia and Mr. N aumis were seate d on the couc h as Appe llant reloade d his rifle. Appellant then or dere d them both to stand and when the y did, Appellant shot Mr. Naumis. Ms. Garc ia fled towa

rds her bedroom, g rabbe d her da ug hters who we re standingin the doorwa y , and they ran out the door . As she fle d, she cla imed that she saw or hear d Appellant shoot Mr. Aleman. Ms. Ga

rcia and her daughters ra

n to her a unt’s house, whe re the y

called 911. El Paso Poli ce O ffice rs Torr es and Cisneros r esponded to the c all and ar rived at the Naumis-Ga

rcia house first. Of

fice rs Cordova a

nd Flore s arr ived sec onds later. Of fice rs Cordova and Torr es found Mr. N aumis lying in the dr iveway of the house in a

feta l positi on. Mr. Naumis was moaningand in pain. The two office rs still handcuffe d him. W hen Emer g ency Medica l Service s arr ived, Off

icer Cordova uncuf

fed Mr . Naumis, and a ctually saw a bullet come out of his right side. Mr . Naumis died soon af terwa rds as a result of the gunshot to his abdomen. As additional offic ers a

rrived, the Appellant eve ntually walked out of

the house with his hands up in the air, sa

ying: “ Idid it.” Office r Alber to Gloria handc uffe d Appellant, patted him down, and plac ed him into a patrol vehic le. A later pat-down of

Appellant turne d up sever al live .22 rounds. The r ifle that wa s rec overe d in the house wa s a .22 semiautomatic. Offic ers Cisneros a

nd Flore s found Mr. Alema n inside the house with gunshot wounds to his arm and leg s. On May 4, 2005, Appellant wa s char g ed by indictment with the murder of Mr. Naumis (Count I ) and a g g ravated assault of Mr . Aleman ( Count I I ). Althoug h Appellant pled not guilty , the jury found Appe llant guilty

as cha rg ed on both counts. Appe llant only appea ls the murder
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Appellant’s sole issue is that the tria l court er red in a dmitti ng testimony reg arding Mr. Naumis’s stateme nt that Appellant shot him based on the cla im that his constit utional rig ht to confront his ac cuser s was violated. In order to preser ve a c omplaint concer

ning the admission of evidenc e for appellate revie w, a pa

rty must have pre sented to the trial c ourt a timely reque st, objection, or motion, stating the specific g rounds for the ruling desired f rom the cour

t, unless the specific g rounds wer e appar ent from the c ontext . SeeT E X .R.A P P .P. 33.1; Ethington v. State , 819 S.W .2d 854, 858 (Tex.Crim.App. 1991). I n order to be consider ed timely , the objection must be made at the first opportunity

or as soon a s the basis of the objec tion becomes a ppare nt. See Lagrone v . State , 942 S.W .2d 602, 618 (Tex.Crim.App. 1997), cert. de nied , 522 U.S. 917, 118 S.C t. 305, 139 L .Ed.2d 235 (1997); Martinez v. State , 867 S.W .2d 30, 35 (Tex.Crim.App. 1993). An objection must be made e ach time inadmissible evidenc e is offe red, a nd there is no error

if the objec ted-to evide nce is admitted elsewher e without objection. See E thington , 819 S.W .2d at 858. Fur ther, the argument raised on a

ppeal must corr espond to the objec tion made at trial. Martinez , 867 S.W .2d at 35. Even c onstitut ional err ors may be wa ived by

the fa ilure to object at trial. Briggs v. State , 789 S.W .2d 918, 924 (Tex.Crim.App. 1990). Appellant ar g ues that the out-of -cour t statement by

Mr. Naumis indicatingAppellant shot him was inadmissible beca use it violated the Confrontation Clause. In the jury ’s pre sence , Appellant objec ted to Offic ers Cordova and Torr es’s testimonies reg ardingMr. Naumis’s statement to the off

icer s when they

arr ived at the Na

umis-Garc ia re sidence and obser ved Mr. Naumis lying in the dr iveway in a fe tal position. Appellant first objected to Of fice r -3-Cordova’s testimony reg ardingwhat Mr. Na

umis stated solely

based on he arsa

y , and af ter the prosec ution stated, “I

believe the predic ate f

or an e x cited uttera

nce ha s been la id,” the cour t
overr uled Appellant’ s objection. Off icer Cordova then testified that Mr. Naumis told him, “Chico shot me,” a

nd Appellant made no further objections to this particular testimony
. Appellant then objec ted to Offic er Tor res’ s testimony

reg ardingwhat Mr. Na

umis stated on the base s of hea

rsay and “the protec tion provided by Crawf ord [v.] W

ashington .” In response , the State ar g ued that the testimony is admissibl e base d on the excited utteranc e and dying de clar ation exceptions to hearsa y . Appellant then c ontended that “ no foundation [was] laid for the dy ing de clar ation [hearsay

exception] ,” but the cour t overrule d Appellant’s objec tion. Offic er Tor

res pr ocee ded to testify

Mr. Naumis told him, “Chico shot me,” and Appe llant made no further objections to this testi mony . Even thoug h Appellant objec ted to Mr. Naumis’s stateme nt on the basis of the Confrontation Clause whe n Offic er Tor res testified, he failed to objec t to the admission of Mr. Naumis’s stateme nt when it was fir st testified to by Offic er Cordova

on such g rounds. Ba sed on these f

acts, the obje ction was not made at the first opportunity , and it was not made
eac h time the alleg ed inadmissible evidenc e wa s offe red. See Lagrone , 942 S.W .2d at 618; Martinez , 867 S.W .2d at 35; Ethington , 819 S.W .2d at 858. As such, Appe llant failed to prese rve e rror

by objectingproper ly

to the evidenc e, and so he has wa ived any complaints he has based on the Confrontation Clause. SeeT E X .R.A P P .P. 33.1; Ethington , 819 S.W .2d at 858. Acc ording ly , we ove rrule A ppellant’s sole issue. Havingoverr

uled Appellant’ s issue prese nted for r eview, w e af firm the trial c ourt’s judgme nt.
-4-November 10, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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