Daniel Lillight Rivera v. the State of Texas

Opinion filed September 12, 2024

In The

Eleventh Court of Appeals
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No. 11-23-00104-CR
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DANIEL LILLIGHT RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause No. 8191

MEMORANDUM OPINION
A jury convicted Appellant, Daniel Lillight Rivera, of manslaughter, a
second-degree felony, and assessed his punishment at twenty years’ confinement in
the Institutional Division of the Texas Department of Criminal Justice. See TEX.
PENAL CODE ANN. § 19.04 (West Supp. 2023). The trial court sentenced him
accordingly. In a single issue on appeal, Appellant argues that the trial court erred
by admitting evidence of his prior arrest for assault family violence against the same
victim.
Factual and Procedural History
A grand jury indicted Appellant for recklessly causing the death of Christina
Marie Rojas on or about February 27, 2021, “by shoving her in front of a moving
car on a roadway.” Prior to trial, Appellant filed a motion requesting that the State
provide notice of any extraneous offenses, other acts, or conduct that it intended to
offer at trial. In response, the State provided a notice of six extraneous offenses that
it intended to offer, including Appellant’s arrest on February 12, 2021, that occurred
approximately two weeks before Rojas’s death, for “unlawful restraint and assault
family violence” against Rojas. Appellant filed a motion in limine as to this
extraneous offense, which the trial court granted on the record.
During trial, but outside the presence of the jury, the trial court inquired into
the State’s intent to introduce evidence of Appellant’s prior arrest for assault family
violence against Rojas. The State explained that it intended to offer evidence
through an officer’s bodycam footage and Appellant’s custodial interview with law
enforcement that referenced the arrest. Appellant objected to the admission of the
evidence, arguing that it was “just too prejudicial.” The State responded that the
evidence was necessary to counter Appellant’s positive description of his
relationship with Rojas during his custodial interview—as if it were “a good
relationship and no problems in it”—and to establish the requisite mental state. The
trial court overruled Appellant’s objection, ruling that the probative value “of that as
the relationship between the parties” outweighed the prejudicial effect and allowed
the testimony and the statements to remain in the videos. See TEX. R. EVID. 403.
During the testimony of Texas Department of Public Safety (DPS) Lieutenant
Anthony Bennett, the State offered a recording of Appellant’s interview with
Lieutenant Bennett. Appellant responded, “[w]e have no objection to [the] State’s
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[exhibit], Your Honor.” During the interview, Appellant explained that he was
arrested for unlawfully restraining Rojas.
Additionally, Wink Independent School District Police Chief Kyle Sanford
testified that he investigated the manslaughter offense while working as a Patrol
Sergeant for DPS. The State offered Chief Sanford’s bodycam footage from his
investigation, to which Appellant responded, “I have no objection, Your Honor.” In
the bodycam footage, another officer tells Chief Sanford that Appellant was recently
arrested for assault family violence against Rojas.
Standard of Review and Applicable Law
To present a complaint for appellate review, a party must make a timely
request, objection, or motion that stated the grounds for the ruling sought and
complied with the applicable rules. TEX. R. APP. P. 33.1(a)(1). Moreover, the party
must obtain a ruling or demonstrate that the trial court refused to rule and the party
objected to said refusal. Id. R. 33.1(a)(2). “[A]n objection must be made each time
inadmissible evidence is offered unless the complaining party obtains a running
objection or obtains a ruling on his complaint in a hearing outside the presence of
the jury.” Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (citing TEX.
R. EVID. 103(b)). But, when a party objects to the evidence outside the presence of
the jury, he may waive any error if he later responds that he has “no objection” to
the previously challenged evidence. Thomas v. State, 408 S.W.3d 877, 885 (Tex.
Crim. App. 2013).
Whether the party’s “no objection” response results in forfeiting earlier-
preserved error is dependent on the context. Id.
If the record as a whole plainly demonstrates that the defendant did not
intend, nor did the trial court construe, his “no objection” statement to
constitute an abandonment of a claim of error that he had earlier
preserved for appeal, then the appellate court should not regard the
claim as “waived,” but should resolve it on the merits. On the other

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hand, if from the record as a whole the appellate court simply cannot
tell whether an abandonment was intended or understood, then,
consistent with prior case law, it should regard the “no objection”
statement to be a waiver of the earlier-preserved error. Under the latter
circumstances, the affirmative “no objection” statement will, by itself,
serve as an unequivocal indication that a waiver was both intended and
understood.
Id. at 885–86.
Analysis
Appellant raised his objection to admitting evidence of his prior arrest for
assaulting Rojas in a pretrial motion in limine, and during a hearing outside the jury’s
presence. Using the language of Rule 403 of the Texas Rules of Evidence, he argued
that, “even if it is probative, it’s just too prejudicial.” He now claims to have
preserved his arguments through his motion in limine as well as the hearing outside
the presence of the jury. However, Appellant’s motion in limine does not preserve
the alleged error for appellate review. See Martinez v. State, 98 S.W.3d 189, 193
(Tex. Crim. App. 2003) (A motion in limine does not preserve error for appellate
review.). Although Appellant lodged his objection to the admission of his prior
arrest for assault family violence and secured a ruling outside the presence of the
jury, he subsequently stated that he had “no objection” to the offered evidence, when
he had the opportunity to do so prior to the trial court’s admission of the interview
and its admission of the bodycam footage. Accordingly, we must review the record
for context to determine whether it plainly demonstrates that Appellant did not
intend to abandon his claim of error. See Thomas, 408 S.W.3d at 885–86.
We encountered a similar fact pattern in McCalister v. State. See No. 11-15-
00310-CR, 2018 WL 576134, at *2 (Tex. App.—Eastland Jan. 19, 2018, no pet.)
(mem. op., not designated for publication). In McCalister, the trial court overruled
Appellant’s objection to extraneous-offense evidence outside of the presence of the
jury. Id. at *1. However, when the State subsequently moved to admit the evidence,
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Appellant responded that he had “no objection.” Id. at *2. We concluded that
Appellant did not abandon his claim of error as evinced in part by him premising an
argument for a jury instruction on his earlier objection to the evidence and by
stressing during closing argument that the extraneous offense did not concern the
charge before the jury. Id.
Here, a charge conference occurred in chambers and off of the record and,
when the parties went back on the record, neither the State nor Appellant had
objections or additions to the trial court’s charge; as a result, there is nothing before
us to demonstrate that Appellant raised his earlier objection in any manner at such
time. Neither the State nor Appellant referenced the extraneous offense in their
closing arguments. Indeed, Appellant’s arrest is not specifically mentioned by
testimony or argument after Appellant’s initial objection outside the presence of the
jury. Accordingly, McCalister’s circumstances demonstrating non-abandonment of
the prior objection are not present here. See id. Nothing in this record “plainly
demonstrates that [Appellant] did not intend, nor [that] the trial court construe[d],
his ‘no objection’ statement to constitute an abandonment of a claim of error that
he had earlier preserved for appeal.” See Thomas, 408 S.W.3d at 885; see also
Sharper v. State, 485 S.W.3d 612, 616 (Tex. App.—Texarkana 2016, pet. ref’d)
(“Since the record does not plainly demonstrate that [Appellant] did not intend to
abandon his Sixth Amendment objections, we find that [Appellant] has failed to
preserve this error for our review.”). As such, Appellant’s two, affirmative “no
objection” responses to the offered evidence, “by itself, serve[s] as an unequivocal
indication that a waiver was both intended and understood.” See Thomas, 408
S.W.3d at 885–86. We conclude that Appellant failed to preserve for our review his
objection to the admission of the complained-of extraneous offense. See id.
Appellant’s sole issue is overruled.

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This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

September 12, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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