
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-02-00079-CR


Erik James Mendoza, Appellant

v.


The State of Texas, Appellee






FROM THE COUNTY COURT AT LAW OF COMAL COUNTY

NO. 2000CR1182, HONORABLE BRENDA CHAPMAN, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N


A jury found appellant Erik James Mendoza guilty of evading arrest.  Tex. Pen. Code
Ann. § 38.04 (West Supp. 2003).  The court assessed punishment at incarceration for 220 days and
an $800 fine, but suspended imposition of sentence and placed appellant on community supervision. 
In a single point of error, appellant contends the court erred by admitting in evidence a statement he
made.  We overrule this contention and affirm the conviction.
Department of Public Safety Trooper James Jones saw appellant make an unlawful
pass on his motorcycle.  When Jones approached appellant from the rear and turned on his
emergency lights to signal him to stop, appellant did not respond.  Jones testified that he pursued
appellant for five miles before he stopped.
Appellant filed a motion to suppress all statements he made following the stop.  At
a pretrial hearing, the court granted the motion with respect to statements made by appellant to
Trooper Jones immediately following the stop.  Because a necessary witness was unable to appear
for the pretrial hearing, the court reserved until trial its ruling on the admissibility of appellant's later
statements. (1)
During trial, at a hearing outside the jury's presence, New Braunfels Police Officer
John Sullivan testified that he was in the booking area of the county jail on other business when he
overheard appellant tell someone, either a jailer or another prisoner, "I was going about 160 miles
an hour."  Appellant objected to the admission of this statement on the ground that it was hearsay
and "potentially custodial interrogation."  The objections were overruled and the officer later gave
the same testimony before the jury.
Following his trial, appellant filed a motion for new trial urging that the "verdict in
this cause is contrary to the law and the evidence."  He later filed an untimely amended motion for
new trial in which he argued that the remark overheard by Sullivan should have been suppressed
because it was the product of custodial interrogation, that he had not been advised of his rights, and
that he would not have responded to the interrogation had he not already made substantially similar
statements to the arresting officer.  See Griffin v. State, 765 S.W.2d 422, 428 (Tex. Crim. App. 1989)
("cat-out-of-the-bag theory"); but see In re R.J.H., 79 S.W.3d 1, 7-8 (Tex. 2002).  At a hearing, the
court agreed to consider the untimely amended motion for new trial solely as a brief in support of
appellant's earlier motion.   The court ruled that it was too late for appellant to offer evidence
challenging the admissibility of the statement, however, and overruled the motion for new trial
without hearing testimony.  Appellant was allowed to make an offer of proof, in which he testified
that he was questioned at the jail by Deputy De La Fuentes about the circumstances of his arrest. (2) 
He said he answered the deputy's questions because he wanted to tell his side of the story.  He said
that when asked how fast he was going, he answered that he did not know, thus implicitly denying
that he ever said that he was driving 160 miles-per-hour.
Objections to the admission of evidence must be made at the earliest opportunity. 
Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a).  Appellant did not testify at the mid-trial hearing
for the limited purpose of challenging the admissibility of the overheard statement and did not seek
to raise his contention under Griffin until the untimely motion for new trial.  The county court at law
properly ruled that appellant's proffered testimony at the new trial hearing came too late.  We also
note that in his offer of proof, appellant did not testify that he would not have made the statement
at issue but for his earlier statements to Jones; to the contrary, appellant denied making the statement
at all.  Thus, even appellant's offer of proof did not raise an issue under Griffin.  See Griffin, 765
S.W.2d at 430.

Appellant's sole point of error was not properly preserved and is without merit on the
record before us.  We overrule the point of error and affirm the judgment of conviction.


				___________________________________________
				Jan P. Patterson, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed:   February 27, 2003
Do Not Publish
1.        The reporter's record does not contain this pretrial hearing.  We infer what happened from
statements made by the parties at trial and at the motion for new trial hearing.
2.        De La Fuentes also testified outside the jury's presence during trial.  He said that he never spoke
to appellant, but that he also overheard him bragging about his speed.  The court did not permit De
La Fuentes to testify before the jury because his name was not on the State's witness list.

