Opinion issued November 8, 2012




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00354-CR
                          ———————————
                BRYAN MATTHEW OLIVAREZ, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



              On Appeal from the 184th Judicial District Court
                           Harris County, Texas
                      Trial Court Case No. 1203764



                         MEMORANDUM OPINION

      Appellant Bryan Matthew Olivarez pleaded guilty, without an agreed

recommendation as to punishment, to the first-degree felony offense of attempted

capital murder of a peace officer with a deadly weapon. See TEX. PENAL CODE
ANN. § 15.01 (West 2011) (attempt); id. § 19.03(a)(1) (capital murder). The trial

court sentenced him to 45 years in prison. In his sole issue, Olivarez argues that a

law enforcement officer’s allegedly false testimony violated his due process right

to a fair trial and was fundamental error. We affirm the conviction of the trial

court.

                                   Background

         On February 15, 2009, Harris County Constable Deputy H. Menz stopped

Olivarez for driving his truck in reverse at a high speed. Menz approached the

truck, but Olivarez fled to his mobile home. Menz pursued, and when he arrived at

the mobile home, Olivarez opened fire with a handgun. In response, Deputy Menz

called for backup and returned fire. Approximately ten minutes later, other police

officers arrived and arrested Olivarez. After his arrest, Olivarez berated the police

officers, uttering profane personal remarks and saying that he “had every right” to

shoot at Menz because he came to his house.

         Olivarez was charged with attempted capital murder of Menz, and he

pleaded guilty to the offense without an agreed recommendation on punishment.

The court ordered that a pre-sentence investigation be conducted.            At the

punishment hearing, Menz testified about the crime and how it had personally

affected him. In addition to this testimony, the State offered into evidence a video




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recording from Menz’s patrol car depicting the events and Olivarez’s statements on

the night he was arrested.

      On direct examination by the State, Menz testified about where the bullets

fired by Olivarez went:

      STATE:                 Do you know where the shots that the defendant
                             fired at you ended up at that scene?

      MENZ:                  Yes.

      STATE:                 Where did they end up?

      MENZ:                  One went to—equivalent of being right by my
                             head through a fence behind me; two of them were
                             found right by one of my—where my feet would
                             be, by the edge of my tire; one was found
                             underneath my patrol car; and the other one that
                             bounced off my patrol car was never found.

Olivarez did not object to this testimony. On cross-examination, he questioned

Menz about the crime scene investigation:

      DEFENSE:               Now, you said that Mr. Olivarez—the Crime
                             Scene Unit found one bullet on the fence, the back
                             fence; is that correct?
      MENZ:                  That is correct.

      DEFENSE:               And they found—to your knowledge, was there
                             any trajectory analysis done by any Crime Scene
                             Unit at the scene, if you know?

      MENZ:                  Not to my knowledge.
      DEFENSE:               Now you’ve indicated to the Judge that the
                             vehicle, the front part of your vehicle, you said a
                             bullet bounced off it? Did I misunderstand you,
                             what you said?
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      MENZ:              No. That’s correct.

      DEFENSE:           Now, I’ve gone through the reports. There are no
                         photographs or anything done of any damage to
                         your vehicle. Were you aware of that?

      MENZ:              No.
      DEFENSE:           Now you would agree with me that if a Crime
                         Scene Unit gets there—I think you also said that
                         there were some shots that were fired to, I guess,
                         the tires of your vehicle. Is that what I heard?

      MENZ:              By the tires, sir.

      DEFENSE:           By the tires. Okay. And you would agree with me
                         that there were no bullets that were recovered by
                         the Crime Scene Unit fired from the defendant, if
                         you know?
      MENZ:              I’m not aware of that, sir.

      DEFENSE:           You would agree with me that they discovered not
                         only the shell cases fired from—by Mr. Olivarez
                         but the shell cases fired by you; is that correct?
      MENZ:              That’s correct.
      DEFENSE:           And you are aware of that; is that correct?
      MENZ:              That’s correct.

      Olivarez’s psychiatrist and six of his family members testified at the

punishment hearing. The psychiatrist testified that she evaluated Olivarez more

than a year after the shooting, and she concluded that he was bipolar and suffered

from anxiety. She believed that Olivarez could overcome his mental illnesses with

proper treatment and eventually reintegrate into society. Olivarez’s grandparents,

father, aunt, and two uncles testified about his good nature, improvements since he
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started taking medication, and their willingness to help him if the judge granted

him probation. They asked that the trial judge grant Olivarez probation.

      Olivarez testified, admitting that he drove his truck and carried two guns

while under the influence of Xanax. He said that he did not know that a police

officer had pulled him over or pursued him until Menz arrived at his grandmother’s

house. Despite his guilty plea, he testified that he was “not guilty of attempted

capital murder.” He said that he pleaded guilty because he thought “Officer Menz

would testify maybe he thinks, you know, I was trying to kill him. I was not trying

to attempt to commit murder of a police officer.” But Olivarez conceded that he

panicked when he realized Menz was a police officer and started shooting:

      Q:           So, at the time that you decide to pull out your gun and
                   shoot, you didn’t shoot in front of your car . . . . In other
                   words, you pulled out and shot behind you, right?

      A.           Yeah. I started shooting—

      Q.           Behind you, right, Mr. Olivarez?

      A.           You could say that, more or less, behind me.

      Q.           And you knew the police officer was behind you, right?

      A.           No. No. No. No. My truck was stopped. When he
                   came in, I just started shooting.

      Q.           Not in the air, correct?

      A.           I don’t know. I don’t know—




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      Q.            Well, you know based on talking to your attorney and
                    reviewing the offense report and hearing the testimony,
                    seeing the video—

      A.            I know—

      Q.            Let me finish my question—that it was not you just
                    shooting in the air, right, Mr. Olivarez?

      A.            Yes, ma’am.

      Q.            And that you were shooting towards the police officer; is
                    that correct?

      A.            No, ma’am.

      Q.            Then who were you shooting at?

      A.            I wasn’t shooting at anyone.

      Q.            But you knew there was a police officer behind you?

      A.            Right. Yes, ma’am.

      Q.            And you knew you wanted that police officer to try and
                    shoot and kill you; is that correct?

      A.            I knew there was a police officer when he came in my
                    backyard, and so I started shooting so he would kill me
                    but not at him.

      The court sentenced Olivarez to 45 years in prison, and Olivarez appealed.

                                      Analysis

      In his sole issue on appeal, Olivarez argues that Menz’s testimony was false,

and therefore he was deprived of a fair trial in violation of his right to due process.

Specifically, Olivarez argues that based upon cross-examination, “it was clear that


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Deputy Menz’s claim that bullets were recovered from the scene was mistaken or

fabricated.” Olivarez made no objection to this evidence at trial. No complaint

about the admission of this evidence has been preserved for appellate review. See

TEX. R. APP. P. 33.1(a) (requiring that to preserve error for appellate review, the

record must show that the defendant raised his complaint by making a timely and

specific objection and obtaining a ruling from the trial court); Moore v. State, 371

S.W.3d 221, 225 (Tex. Crim. App. 2012).

      Olivarez argues that no objection was required to preserve what he

characterizes as fundamental error. All but the most fundamental rights may be

forfeited if not insisted upon by the party to whom they belong. Saldano v. State,

70 S.W.3d 873, 887 (Tex. Crim. App. 2002). Even constitutional error may be

waived by failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.

Crim. App. 1990).

      An exception applies to two “relatively small” categories of error:

(1) violations of waivable-only rights; and (2) denials of absolute, systemic

requirements. Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003);

Saldano, 70 S.W.3d at 888; see Arizona v. Fulminante, 499 U.S. 279, 309–10, 111

S. Ct. 1246, 1265 (1991) (fundamental error occurs when certain constitutional

rights are violated, such as the right to counsel, the right to an impartial judge, the

right for there not to be unlawful exclusion of members of the defendant’s race

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from the grand jury, the right to self-representation at trial, or the right to a public

trial); see also TEX. R. EVID. 103(d) (providing that courts are authorized to “tak[e]

notice of fundamental errors affecting substantial rights although they were not

brought to the attention of the court”).

      “The Due Process Clause of the Fourteenth Amendment can be violated

when the State uses false testimony to obtain a conviction, regardless of whether it

does so knowingly or unknowingly.” Ex parte Robbins, 360 S.W.3d 446, 459

(Tex. Crim. App. 2011). “Testimony need not be perjured to constitute a due-

process violation; rather, ‘it is sufficient that the testimony was false.’” Ex parte

Chavez, 371 S.W.3d 200, 208 (Tex. Crim. App. 2011) (quoting Ex parte Robbins,

360 S.W.3d at 459). “The question is whether the testimony, taken as a whole,

gives the jury a false impression.” Id. (citing Ex parte Ghahremani, 332 S.W.3d

470, 477 (Tex. Crim. App. 2011)). To constitute a due-process violation, the

allegedly false testimony must also be material, i.e., there must be a reasonable

likelihood that the false testimony affected the defendant’s conviction or sentence.

See Ex parte Chavez, 371 S.W.3d at 208.

      Olivarez has not shown a fundamental error. Nothing in the record on

appeal demonstrates that Menz’s testimony was false. Menz testified that Olivarez

shot at him. Though Olivarez contends that he was not aiming at Menz, he

conceded that he knew a police officer was behind him and he fired shots in that

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direction. No matters outside the record from the punishment hearing have been

developed, preserved, or presented for our review in this direct appeal, as may be

the case in a post-conviction habeas corpus proceeding. See, e.g., Ex parte Chavez,

371 S.W.3d at 208; Ex parte Robbins, 360 S.W.3d at 446. Olivarez has not shown

that any testimony about recovery of bullets from the crime scene was material to a

disputed sentencing issue. He had already pleaded guilty to the offense. His

sentence was within the statutory range of punishment, and he has not shown that

Menz’s challenged testimony, which amounted to little more than his statement

that he did not know certain details about the investigation of the crime scene,

affected his sentence.

      We overrule Olivarez’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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