Affirmed and Memorandum Opinion filed October 31, 2019.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-18-00072-CR

                       RUDOLPH HARDIN, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the County Court at Law No. 7
                           Travis County, Texas
                 Trial Court Cause No. C-1-CR-16-402535

                         MEMORANDUM OPINION

      Appellant, Rudolph Hardin, appeals his conviction by a jury for indecent
exposure. See Tex. Penal Code § 21.08. The trial court assessed appellant’s
punishment at two years’ probation, a $200 fine, and eighty hours of community
service.   Appellant must also complete a sex-offender evaluation, undergo
counseling, and have no contact with the complainant. Appellant raises two issues
concerning alleged due process violations for review. We affirm.
                                       BACKGROUND

       The complainant worked as a night custodian in Travis County.1 One of the
office spaces complainant cleaned was inside the Coca-Cola plant, where appellant
was manager. One evening, appellant cornered the complainant in one of the
rooms, pushed her up against the wall, grabbed her arm, and pulled out his erect
penis. Complainant told appellant “No.” When appellant heard someone open a
door, he pulled away from the complainant, enabling her to leave the building.

       A few days later, the complainant’s husband reported the incident to the
police. The police interviewed the complainant at her home where they also
photographed the bruising on her arm. A week after the incident was reported, the
complainant requested police officer assistance to return the building keys.
Appellant arrived in the parking lot while the police were speaking with the
complainant.     The police sergeant on the scene testified that the complainant
became nervous when appellant arrived on the scene. Over the course of the
following police investigation there were apparently two video recordings of the
complainant giving interviews or statements to the police.

       Before trial, appellant filed a motion to dismiss, or in the alternative
suppress. In the motion, appellant alleged that “[t]he first recorded interview on
videotape was lost.” Appellant did not specify in the motion what the allegedly
missing videotape was about or provide any details regarding its content.
Appellant also did not attach any evidence to the motion. In addition, the record
on appeal does not indicate that appellant ever sought or obtained a ruling on the
motion from the trial court.

       Prior to voir dire, the State asked the trial court to rule on its motion in

       1
        This case was transferred from the Third Court of Appeals in Austin. For transfer cases,
we follow the law of the transferor court. Tex. R. App. P. 41.3.

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limine.    A missing video recording of the first interview of the complainant
conducted by a Detective Roberson was mentioned during this discussion.2 The
record does not indicate that appellant, subsequent to that discussion asked the trial
court to rule on any type of spoliation issue.3 Finally, while appellant’s attorney
did mention a missing video recording during his opening statement at trial, no
evidence was introduced during trial regarding any videotaped statements by the
complainant, much less a missing videotape, nor did appellant lodge any objections
to the evidence introduced at trial based on a missing videotape or other recording
of the complainant’s statement.

                                            ANALYSIS

       Appellant asserts two issues for appellate review. Appellant argues in his
first issue that his due process rights were violated when the Austin Police
Department destroyed, or failed to preserve, evidence with exculpatory value.
Appellant contends in his second issue that he was denied due process when the
Austin Police Department failed to preserve evidence with potential exculpatory
value. Both issues deal with the allegedly missing videotape or other recording of
the complainant’s first statement to the police. The State responds that appellant
failed to preserve these issues for appellate review. We agree with the State.

       2
         The discussion began as a result of the State’s request, in its motion in limine, that
appellant’s attorney not be allowed to make any suggestion that he has “facts, knowledge or
opinions about the parties, witnesses, or facts of the case gained from sources or information not
presented as evidence or testimony during trial.” After the State clarified the intent of its request,
the discussion focused on the allegedly missing videotape recording of the complainant’s first
interview by the police. Ultimately, there was agreement that appellant would be able to discuss
a missing videotape during closing if evidence admitted during the trial indicated there was a
missing videotape.
       3
          The only motion that the record reveals appellant asked the trial court to rule on was a
motion for “disclosure of evidence under 39.14(h) of the Texas Code of Criminal Procedure.”
The trial court initially deferred ruling on the motion and appellant never renewed his request
that the trial court rule.

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      To preserve an issue for appellate review, the record must show that the
complaint was made to the trial court by a timely request, objection, or motion that
stated the grounds for the ruling that the complaining party sought from the trial
court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context. Tex. R. App. P.
33.1(a)(1)(A); Garza v. State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004).

      A complaint may also be preserved through a timely, specific objection so
long as opposing counsel has an opportunity to respond, the trial court is informed
of the basis of the objection, and it has an opportunity to rule. Douds v. State, 472
S.W.3d 670, 674 (Tex. Crim. App. 2015). There are no technical considerations or
forms of words required to preserve error for appeal, but a party must be specific
enough for the judge to understand the complaint at the time when the trial court is
in a proper position to do something about it. Resendez v. State, 306 S.W.3d 308,
312–13 (Tex. Crim. App. 2009). Even constitutional errors may be waived by a
failure to complain timely. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.
App. 1995). A party’s complaint on appeal must also comport with the complaint
made at trial. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). It
is improper for an appellate court to reverse a trial court’s decision based on a legal
theory not timely presented by the complaining party. Hailey v. State, 87 S.W.3d
118, 122 (Tex. Crim. App. 2002).

      While appellant did file a motion to dismiss for the same due process
violations that he alleges on appeal, he has not shown anywhere in the record
where he brought the motion to the trial court’s attention, or that the trial court
ruled on it. See Nelson v. State, 626 S.W.2d 535, 535–36 (Tex. Crim. App. [Panel
Op.] 1981) (holding that where written motions to suppress had lain “dormant”
without hearing or decision, oral motion to suppress first raised after evidence was

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admitted was untimely and did not preserve error). In addition, other than a brief
reference during appellant’s opening statement, the complainant’s videotaped or
otherwise recorded statements were not mentioned during the evidentiary portion
of appellant’s trial. We therefore hold that appellant did not preserve either of his
issues on appeal for appellate review. See Resendenz, 306 S.W.3d at 316–17
(concluding defendant did not preserve issue for appellate review because there
was no indication in the appellate record to support the contention that the trial
judge or opposing counsel understood defendant was making particular claim).
We therefore overrule appellant’s issues.
                                   CONCLUSION

      Having overruled both issues appellant raises on appeal, we affirm the trial
court’s judgment.




                                       /s/       Jerry Zimmerer
                                                 Justice



Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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