Dallas Court of Appeals Case of the Day- Objection!

Texas appellate courts have a longstanding tradition of throwing out issues on appeal because the defense didn’t object correctly at trial. The law is- to raise an issue on appeal you must specifically object to that issue at trial.

It’s a logical fallacy to believe that a defendant is intentionally waiving an error at trial because his attorney doesn’t make the perfect objection. However, that is the law.

That brings us to the case of the day- Unique Elmore vs. State.

Unique Elmore was charged with multiple drug offenses including cocaine possession. Texas has a law that requires the State to provide the defendant 30 days notice before going to trial on multiple drug offenses. The idea is to let the defendant be tried on each drug offense seperately. Otherwise the jury could be negatively influenced by the multiple charges.

At trial Elmore’s attorney objected to trying multiple drug cases at once. Here is the objection by defense counsel.

The Defendant objects to being tried for more than one case at one time. He is entitled to be tried for his alleged involvement in the crimes alleged in the three indictments separately. To try them together is to invite the jury to convict him for being a criminal generally rather than for his guilt or innocence of the offense with which he’s charged, so we would ask that the court proceed with one of the three cases, any one is fine with us, and defer the trial of the other two for a later time.

Now the defendant wants to appeal the judge’s decision to overrule this objection.

You are the appellate judge. How would you rule?

A. New Trial- The judge violated the defendant’s right to have seperate trials.
B. Harmless Error- The defendant wasn’t harmed by the error so no reversal. No harm, no foul.
C. No Appeal For You! The defense attorney didn’t object the right way. That objection, was really a waiver.

If you guessed C you’re right. The court ruled that the defendant couldn’t even appeal the issue because the defense attorney didn’t object the right way.

From the court’s decision.

In this case, appellant’s objection at trial was pursuant to section 481.132(e), requiring separate trials due to prejudice from a joinder of offenses. Appellant’s issue on appeal, however, is misjoinder of offenses due to lack of the notice required by section 481.132(b). Because appellant’s issue on appeal does not comport with his objection at trial, we conclude he has not preserved error. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) (defendant may waive lack of notice of intent to join offenses under Texas Penal Code section 3.02(b) by not objecting).