                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-14-00088-CR


                          JOSHUA KEITH RIGO, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 31st District Court
                                     Gray County, Texas
                Trial Court No. 9323, Honorable Steven Ray Emmert, Presiding

                                    October 29, 2015

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Joshua Keith Rigo appeals his conviction for murder and resulting

ninety-year prison sentence and $10,000 fine.1 Through two issues he asserts the trial

court abused its discretion and reversibly erred by denying his Sixth Amendment right to

confront an adverse witness and by overruling his objection to the qualification of a

witness he asserts rendered an expert opinion. Finding error was not preserved, and



      1
          TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
even if the claimed error occurred and had been preserved appellant was not harmed,

we will overrule appellant’s issues and affirm the judgment.


                                      Background


      Because appellant does not challenge the sufficiency of the evidence, we will

state only those facts necessary for the disposition of the appeal. During December

2012 appellant lived with his aunt in Pampa, Texas. He departed her home on foot

about 11:00 p.m. on December 31 wearing boots and camouflage pants.              Before

leaving, he told his aunt he might not see her again.


      Kristi Slatten lived in Lefors, Texas. Although married, evidence indicated she

and appellant were involved in a relationship and were together in the early morning

hours of January 1, 2013. At the time, Slatten’s husband was in Corpus Christi where

he was employed.      She and her husband spoke briefly by telephone shortly after

midnight on January 1.      A photograph on Slatten’s Blackberry cellphone depicted

appellant, shirtless, standing in Slatten’s living room wearing a white baseball cap,

camouflage pants, and cowboy boots. Testimony showed the image was saved to

Slatten’s Blackberry at an unspecified time on January 1, 2013.        The image was

transmitted from the Blackberry to appellant’s cellphone at 1:57 a.m. on January 1.


      During the mid-morning hours of January 1, Slatten’s father-in-law found her

lying dead on the living room floor of her home. Her body was positioned face down

with arms underneath. Other than a t-shirt and socks, her body was unclothed.


      Later in the day, while processing the crime scene and collecting evidence, law

enforcement officers took possession of a bottle of “Mad Dog 20/20 Orange Jubilee,” an


                                            2
enhanced wine beverage, found on an end table in Slatten’s living room. Fingerprints

on the bottle, according to trial testimony, matched appellant’s. Guns from a living room

gun case and knives were discovered missing. Also missing was Slatten’s vehicle, an

Avalanche truck equipped with an OnStar communications and tracking system.


       There was evidence Slatten struggled with her assailant. Her nose was bloodied

and appeared broken, her left arm bore a large cut, her hands exhibited defensive

wounds, with bruising visible about her neck. An autopsy identified blunt force injuries

to Slatten’s head and neck. Manual strangulation was determined the cause of death.


       Using the OnStar system, law enforcement located Slatten’s truck near

Panhandle, Texas, where it was stopped by local officers. Appellant was the driver. At

the time he was wearing a white baseball cap, camouflage pants, and a pair of cowboy

boots. Slatten’s purse and cellphone were in the vehicle, as was a pair of underwear

Slatten’s husband identified in trial testimony as hers.       DNA evidence indicated a

smudge of blood found on one of appellant’s socks was Slatten’s. During the early

morning of January 1, appellant gave the missing guns and knives to his father in

Amarillo as a gift. Evidence at the guilt-innocence phase of trial showed appellant had a

prior felony conviction and could not lawfully “possess or carry or own a firearm . . . for a

period of time.”


                                          Analysis


       In his first issue appellant asserts the trial court committed harmful error by

overruling his Confrontation Clause objection to a testimonial statement by a State’s

witness, deputy sheriff Zach Kidd. Appellant contends in his second issue deputy Kidd



                                             3
was not shown to be qualified to render an expert opinion and by overruling an objection

on that ground the trial court reversibly erred. Appellant’s two issues arise from an

exchange during the State’s direct examination of deputy Kidd.


      The State argues appellant failed to preserve the error he now claims by not

raising a timely objection. To preserve a complaint for appellate review, a party must

make a timely request, objection, or motion stating the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion. TEX.

R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op.

on reh’g). Ordinarily, an objection is timely if it precedes the objectionable testimony.

Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). “[I]f a question clearly calls

for an objectionable response, a defendant should make an objection before the witness

responds.” Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). An objection

made after the witness answers may nevertheless sufficiently preserve error if an

acceptable reason exists for not objecting earlier. See Dinkins, 894 S.W.2d at 355;

Girndt v. State, 623 S.W.2d 930, 934-35 (Tex. Crim. App. [Panel Op.] 1981) (noting that

lateness may be excused if witness answers question before attorney can object or a

showing is made that counsel misunderstood the question when asked).


      After careful review of the record, we must agree with the State’s contention.

Appellant’s objections came during deputy Kidd’s testimony that he scanned appellant’s

fingerprints into an “Automated Fingerprint Index System,” which he described as “a

regional database with people that have been incarcerated in the jails in the top 26

counties in the Panhandle.”     The objections came after Kidd testified he “entered”

appellant’s fingerprints into the system, after he responded to another question with a


                                            4
brief description of the function and workings of the system, after he responded

positively to a question asking if he “c[a]me up with any matches on that fingerprint from

the MD 20/20 bottle,” and after he responded to the question asking the identity of the

match.2 We cannot say the record demonstrates a reason for the late objections, or

that it indicates Kidd answered the questions before the objections going to appellant’s

two issues were possible. See Girndt, 623 S.W.2d at 934-35. Appellant’s objections

were not timely raised, and his issues present nothing for our review.


      The State also argues, moreover, that even if error were preserved and even if

we were to conclude the trial court erred by allowing Kidd’s testimony that the AFIS

showed the fingerprints lifted from the MD 20/20 bottle were appellant’s, appellant

suffered no harm. We agree with this contention also.


      Because of appellant’s relationship with Slatten, nothing in the record indicates it

was remarkable to find his fingerprints on an item located in her home. Indeed, from the

record it is impossible to determine whether appellant handled the MD 20/20 bottle

while he was present at Slatten’s home or whether he gave the bottle to Slatten at

another location and she took it to her home. In this respect, law enforcement found an

identical bottle of MD 20/20 “Orange Jubilee” during the search of appellant’s bedroom

at his aunt’s house in Pampa.




      2
         Before he was interrupted by appellant’s initial objection, Kidd responded,
“Joshua Keith Rigo was a candidate on multiple prints that were obtained from this
bottle. And the AFIS system generates scores—” He previously had said the AFIS
produces a “candidate list.” Although Kidd did not say so, we will assume appellant was
the only “candidate” the AFIS system listed.


                                            5
       Further, the bottle and its fingerprints were minor items among the evidence

linking appellant to Slatten’s murder.     As noted, a cellphone photograph depicted

appellant wearing a white baseball cap, camouflage pants, and cowboy boots in

Slatten’s home early in the morning on January 1.         Later that morning appellant

delivered guns from Slatten’s home to his father in Amarillo. At his arrest around noon

that day, appellant had in his possession or was wearing a white baseball cap,

camouflage pants, and cowboy boots like those in the photograph. He drove Slatten’s

Avalanche, with her purse, Blackberry and panties in the vehicle. Blood on one of his

socks was Slatten’s. Appellant’s argument that the fingerprint evidence was significant

depends on alternative hypotheses to explain the evidence of his guilt. As examples,

his brief responds to his possession of her vehicle, phone and purse by noting that he

told the arresting officer Slatten had loaned him the car. He responds to the evidence of

his possession of the guns by referring to evidence she had “a propensity to shower

[a]ppellant with gifts.” Appellant acknowledges that the State never made mention of

the fingerprint evidence in argument to the jury.


       Whether assessed under the constitutional standard for harmless error review 3 or

that for non-constitutional error4 the admission of the challenged fingerprint evidence

was harmless.




       3
          We review any Confrontation Cause error under the constitutional error
standard and will therefore reverse the trial court’s judgment unless we determine
“beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” See TEX. R. APP. P. 44.2(a); Langham v. State, 305 S.W.3d 568, 582
(Tex. Crim. App. 2010) (“The court of appeals correctly identified any Confrontation
Clause error to be of constitutional dimension, and therefore . . . subject to a
constitutional harm analysis”).


                                             6
       Appellant’s first and second issues are overruled.


                                        Conclusion


       Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                                        James T. Campbell
                                                           Justice



Do not publish.




___________________
       4
          A trial court’s erroneous admission of evidence is non-constitutional error
subject to the analysis of appellate rule 44.2(b). TEX. R. APP. P. 44.2(b) (error “that does
not affect substantial rights must be disregarded”); Taylor v. State, 268 S.W.3d 571, 592
(Tex. Crim. App. 2008) (“error is reversible only when it has a substantial and injurious
effect or influence in determining the jury’s verdict”).


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