Opinion issued July 10, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00719-CR

JOSEPH BENJAMIN ROTELLA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 905469

MEMORANDUM OPINION

          A jury convicted Joseph Benjamin Rotella, appellant, of assault of a household member, and, after finding an enhancement paragraph to be true, assessed punishment at eight years’ confinement.

          In two points of error, appellant argues that (1) the trial court erred in admitting into evidence statements that he was on his way to “Crackville,” and was “coming down” off of cocaine; and (2) Texas Penal Code section 22.01(b)(2), as it applies to him, is unconstitutional. Tex. Pen. Code Ann. § 22.01(b)(2) (Vernon 2003).

          We affirm.

Facts

          On November 4, 2001, as Chris Cheeves was waiting at an intersection in her car, she saw appellant, who was in a truck in front of her, punching a woman that was in the passenger seat. The passenger door of the truck then opened, and the woman, later identified as Evelyn Collins, fell out of the truck. Cheeves testified that appellant punched Collins at least half a dozen times and that Collins was hysterical after she fell out of the truck. Collins began to yell to Cheeves to call the police, and, as Collins continued to yell for help, appellant threw Collins’s purse out of the driver’s side window. Collins approached Cheeves’s window, still asking for help, and appellant, who had a car in front of him at the intersection, put his truck in reverse and backed up until his truck struck Cheeves’s car.

          After hitting Cheeves’s car, appellant got out of the truck and started tapping on Cheeves’s driver’s side window. Cheeves’s husband, who was in the passenger side the car, called the police when appellant approached the car. While the call to the police was being made, appellant drove away, leaving Collins at the scene.

          At a pretrial hearing, appellant objected to the admission of an audiotape recording of the 9-1-1 call that was made to the police on grounds of hearsay and unfair prejudice. Appellant argued that the recording was objectionable because of Collins’s statement on the recording that appellant was on his way to “Crackville,” and that appellant was “coming down” off cocaine. The trial court excluded the portion of the audiotape where Collins is recorded as saying that appellant was “coming down” off cocaine, but the remainder was declared admissible.

Admissibility of Evidence

          In his first point of error, appellant argues that the trial court erred in admitting, over objection, statements by witnesses indicating that appellant was on his way to “Crackville,” or was “coming down” off of cocaine, because the statements were unfairly prejudicial in violation of rule 403. Tex. R. Evid. 403.

          Rule 403 provides that, “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” Tex. R. Evid. 403. Generally, to preserve error for appeal, a party must make an objection in the trial court. Tex. R. App. P. 33.1(a). When a court has overruled an objection to the admission of evidence, and that same evidence is later admitted without objection, the right to complain about the admission of the evidence on appeal will be waived. Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998). Even if the trial court overrules an objection to the admissibility of evidence, the objecting party must, “on pain of waiver,” continue to object to the evidence whenever it is offered. Id. at 718. Waiver will occur if the same evidence comes in either before or after the complained-of-ruling, and the rule applies “whether the other evidence was introduced by the defendant or by the State.” Id.

          In this case, after the State played the audiotape recording, the following dialogue took place during the State’s questioning of Cheeves:

State: Is that your voice talking to the operator?

          Cheeves:      Yes it is.

          State:           And we can hear another voice in the background. Is that Evelyn Collins?

          Cheeves:      Yes it is.

          State:           And she told you on the tape that [appellant] was on his way to Crackville?

          Cheeves:      Yes.

          Later on in the trial, during the State’s questioning of Collins, the following exchange took place:

State: Then you said that he must be going to Crackville.

          Collins:        Yes, ma’am, I did.

          State:           Did he spend a lot of time there?

          Collins:        Not a lot of time, no, ma’am. That’s just where one of his friends live [sic].

          State:           Does his friend sell crack?

          Collins:        No ma’am, not to my knowledge.

          State:           Do they use or abuse crack?

          Collins:        No, ma’am, not to my knowledge.

          State:           Have they ever?

          Collins:        No, ma’am, not to my knowledge.

          After questioning Collins on the above matters, there was a bench hearing, and, over appellant’s objection at the bench hearing, the trial court allowed the State to elicit testimony from Collins as to whether she had said on the day of the offense that appellant was “coming down” off of cocaine

          While appellant did object at the bench hearing to the State’s attempt to elicit testimony from Collins about her previous statement that appellant was “coming down” off of cocaine, appellant did not object to either of the above two quoted exchanges in which the State elicited testimony as to whether appellant was going to “Crackville,” testimony as to whether Collins made a statement on the day of the offense that appellant was on his way to “Crackville,” and testimony as to whether appellant had ever used cocaine. Accordingly, because appellant failed to object at trial each time the State elicited testimony concerning appellant’s travels to “Crackville” or his cocaine use, he has waived his right to complain on appeal about the admission of those matters into evidence. See Leday, 983 S.W.2d at 719.

Constitutionality of Penal Code Punishment Enhancement Provision

          In his second point of error, appellant argues that the punishment enhancement provision in Texas Penal Code section 22.01(b)(2) is unconstitutional because, as applied to appellant, it violated the cruel and unusual punishment provisions of the Eighth Amendment to the United States Constitution, as well as the parallel provision in Article I, Section 13 of the Texas Constitution. See Tex. Pen. Code Ann. § 22.01(b)(2) (Vernon 2003).

          When challenging the constitutionality of a statute as applied, the defendant must object at trial in order to preserve any error. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995). Appellant did not object at trial to the constitutionality of section 22.01(b)(2), and, accordingly, he has not preserved error on the issue.

          We overrule point of error two.

Conclusion

          We affirm the trial court’s judgment.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

Do not publish. Tex. R. App. P. 47.2(b).