----CONFESSING ERROR
By EDWARD LAZARUS
----
Earlier this month, Vincent Saldano, one of the 468 inmates on Texas' death row, had his death sentence vacated. This development was duly reported in the press. But accounts of Saldano's good fortune uniformly failed to appreciate what makes his reprieve truly newsworthy and potentially a landmark.
Saving Saldano: Texas Confesses Error
![[Illustration]](http://writ.news.findlaw.com/images/illustrations/e-chair_cropped.jpg) | |
Saldano was not freed from the prospect of execution by the actions of a court or even, as occasionally happens, by the clemency of a governor. His death sentence was erased because Texas, through its newly created office of the solicitor general, "confessed error" in his case -- that is, it admitted, despite defeating Saldano's initial appeals in court, that his death sentence was illegally obtained. Quite simply, this never happens, either in Texas or in the dozens of other states with active death penalty laws. It is thus worth pausing to consider the value and potential implications of Saldano's case as well as the notion of confessing error.
Saldano had received a death sentence in part due to profoundly troubling testimony by a state expert witness at the sentencing phase of his trial. The expert, a clinical psychologist named Walter Quijano, suggested that Saldano should be executed because, as an Hispanic, he posed a special risk of future dangerousness to society. To support this astonishing conclusion, the expert pointed out that Hispanics make up a disproportionately large amount of Texas' prison population.It does not take a tenured professor of constitutional law to realize that linking racial identity with a propensity for violence was not only bizarre but also a violation of the equal protection clause. Indeed, that it should take a confession of error by the state to correct this problem highlights at least two problems in the current administration of the death penalty. First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities. The same flaw identified in Saldano's case infects at least seven other Texas capital cases. Second (and perhaps even more distressing), courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases. After all, before the state's confession of error, Saldano had lost all of his appeals.
Under these circumstances, one might think that confessions of error would be, if not commonplace, at least occasional. On average, the Solicitor General of the United States confesses error in two or three criminal cases every year -- even though it is a safe bet that federal prosecutions, conducted by better trained lawyers with greater supervision, are less likely to contain obvious legal errors than their state counterparts. As the Supreme Court recognized when endorsing the practice in 1942, "the public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error, when, in their opinion, a miscarriage of justice may result from their remaining silent." But as a practical matter, states never confess error in death penalty cases (even though courts overturn roughly two-thirds of all death sentences as legally infirm) -- and some states candidly admit that their policy is never to confess error.
Mutual Distrust
Why? One crucial and usually overlooked factor is the deep antagonism that has grown up over time between state death penalty prosecutors and the death penalty abolitionist lawyers who seek to foil them in every case. The abolitionists, prosecutors know all too well, never concede that their clients deserve the death penalty or that the death penalty was legally imposed -- no matter how flimsy their arguments in a given case. Rather, they use every procedural and substantive trick in the book to delay executions.
There can be no denying that such abolitionist tactics have angered and frustrated state prosecutors. And one response to these understandable emotions has been for prosecutors to mirror the fight-to-the-bitter-end approach of their opponents.
The problem with this reciprocation, however, is simply that the ethical duties of prosecutors and defense attorneys are vastly different. Defense attorneys are duty-bound to scratch and claw to win for their clients. Prosecutors, by contrast, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
That may sound trite and perhaps overly idealistic, but it has a practical side as well. Prosecutorial confessions of error -- knowing when to fold them, as it is known -- establish credibility. They create trust in the system, a sense that someone is being careful and exercising sound judgment, that extends far beyond any single case. And that can make a world of difference for someone like me, who is not morally opposed to the death penalty but skeptical of how it is imposed.
Death Penalty Politics
In addition, the reluctance of state prosecutors to confess error is a clear reflection of how politics affects the death penalty. Up until now, anyway, undoing a death sentence was akin to political suicide for an elected district attorney or state attorney general, or for any state official with ambitions for re-election or higher office. And yet the willingness of Texas' new solicitor general to confess error in the Saldano case suggests a possible turning point. With the current groundswell of death penalty opposition based on the possibility of executing an innocent person, elected officials may now find some advantage in approaching capital cases (even those where innocence is not an issue) with a greater degree of care and honesty.
case will start a broad trend. But there is reason to believe that the tide is indeed turning. On June 9, Texas Attorney General John Cornyn announced the results of an investigation into other death penalty cases involving testimony by state expert Walter Quijano. Cornyn acknowledged that Dr. Quijano had provided testimony in six other death penalty cases similar to his improper testimony in the Saldano case. Cornyn's staff has advised defense lawyers for the six inmates now on death row that his office will not oppose efforts to overturn their sentences based on Quijano's testimony. In response, a pessimist might note that Texas is appealing a ruling in another capital case that the defendant received inadequate counsel -- when, indisputably, his lawyer slept through much of the trial. But doing the right thing has a contagious quality to it. Or at least so we can hope. Edward Lazarus, a former federal prosecutor, is the legal correspondent for Talk Magazine and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.
1 comment:
And the CCA Arrogantly defies the Supreme Court with Cornyn's trick / tactic
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 72,556
VICTOR HUGO SALDANO, Appellant
v.
THE STATE OF TEXAS
APPEAL FROM
COLLIN COUNTY
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Womack, J., delivered the opinion of the Court, in Part I of which all Members of the Court joined, and in Part II of which Keller, P.J., and Meyers, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Price, and Johnson, JJ., dissent in Part II. Keller, P.J., filed a concurring opinion in which Keasler, Hervey, and Cochran, JJ., joined. Price, J., filed a dissenting opinion. Johnson, J., filed a concurring and dissenting opinion.
This case comes before us again on remand from the Supreme Court of the United States. After we affirmed his conviction on September 15, 1999, the appellant petitioned the Supreme Court for a writ of certiorari. The question for review was, "Whether a defendant’s race or ethnic background may ever be used as an aggravating circumstance in the punishment phase of a capital murder trial in which the State seeks the death penalty."1 The Attorney General of Texas filed a response to the petition, in which he confessed that the prosecution’s introduction of race as a factor for determining "future dangerousness" constituted a violation of the appellant’s rights to equal protection and due process.2 The Supreme Court granted the petition, summarily vacated our judgment, and remanded the case to us "for further consideration in light of the confession of error by the Solicitor General of Texas."3
I.
At the threshold is a question of the attorney general’s authority to confess error for the State in a certiorari proceeding in a criminal case before the Supreme Court. The question arises because no constitutional or statutory provision gives the attorney general authority to represent the State in such proceedings or, indeed, in any criminal proceeding. We directed the parties, and invited the Attorney General, to brief and argue the issue. They have done so.
A. Constitutional and Statutory Authority of the County and District Attorneys
The duty of criminal prosecution in the trial courts of record is on the county attorney and the district attorney (or criminal district attorney). In the courts of appeals the duty is on the same officers and on the state prosecuting attorney. In the court of criminal appeals, the duty is on the state prosecuting attorney, with the assistance of the county and district attorneys.
Every constitution of Texas, as a republic and as a state, has provided for district attorneys to represent Texas in criminal prosecutions. The office of district attorney has always been in the judicial department of government.4 The office of county attorney was added to the judicial department in 1866 when the county court was created with jurisdiction of misdemeanor and petty offenses.5 The present Constitution gives the authority to prosecute criminal cases to the county attorneys, criminal district attorneys, and district attorneys, under the regulation of the legislature:
A County Attorney, for counties in which there is not a resident Criminal District Attorney, shall be elected by the qualified voters of each county, who shall be commissioned by the Governor, and hold his office for the term of four years. In case of vacancy the Commissioners Court of the county shall have the power to appoint a County Attorney until the next general election. The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature.6
The legislature has regulated the duties of the district attorneys and county attorneys by giving only to them the authority to prosecute criminal cases, and by giving them authority to represent the State in appeals.7 Their authority to represent the State in appeals is limited only by a special statute that creates in the judicial department the office of state prosecuting attorney, which has primary authority to represent the State in this Court and authority to represent the State in the intermediate courts of appeal if the state prosecuting attorney considers it necessary.8 District and county attorneys may assist the state prosecuting attorney in representing the State in this Court.9 They have the primary authority to represent the State on appeal in other courts,10 subject to the state prosecuting attorney’s authority to intervene in a court of appeals.
This diffusion of the authority to prosecute is in keeping with the deliberately "fractured" nature of Texas government, in which the "framers of our constitution, influenced by the political philosophy of the Jacksonian era and the despotic control of the reconstruction governor, deliberately chose to decentralize executive authority."11
[T]he State of Texas … has given its authority to prosecute [criminal] cases to more than three hundred independently elected prosecutors, each of whom exercises authority in an area of the state no larger than a judicial district. This model differs from the federal model not only because there is no central prosecuting authority, but also because the prosecutors are officers of the judicial branch of government.12
The Constitution and laws, therefore, have deliberately and expressly given district attorneys and county attorneys general authority to represent the State in appeals of criminal cases.
B. Constitutional and Statutory Authority of the Attorney General
The attorneys general of most states have authority to prosecute criminal cases.
The structure of the office and the duties of the attorney general vary from state to state and are defined in state constitutions, statutes, and court decisions in varying degrees of detail and emphasis. However, to the extent a common thread can be discerned, the duties have been summarized as follows: providing informal legal advice and formal legal opinions to the governor and other state officials and agencies and sometimes the legislature; representing the state, state agencies, and state officers in litigation; enforcing state civil and criminal law; and supervising local prosecutors in some states. …
Although the duty is shared in a variety of ways with local government prosecutors, most state attorneys general have as one of their responsibilities the investigation and prosecution of state criminal offenses.13
The office of attorney general of Texas has never had authority to institute a criminal prosecution. Before 1876 it had constitutional authority to represent the State in appeals of criminal cases, and it had statutory authority to do so until 1923. Since then it has had no authority to represent the State in a criminal case in any court, except when a county or district attorney requests it to assist.
The Constitution of the Republic of Texas did not create an office of attorney general, although it did create the office of district attorney. The executive officers were a president,14 a vice-president,15 a secretary of state,16 and "such other heads of executive departments as may be established by law."17 The first act of the First Congress created four other executive offices, including that of attorney general.18 The duties of these officers were described only in general terms.19
When Texas was admitted to the Union, the office of attorney general appeared in the judicial article of the state constitution of 1845, which said only that the duties of the district attorneys and the attorney general were to be prescribed by law.20 The First Legislature gave the district attorney the duty "to conduct all prosecutions for crimes and offenses cognizable in [the district] court,"21 and the attorney general the duty to "counsel and advise the several district attorneys … whenever requested by them so to do."22 These roles of the district attorneys and the attorney general in Texas were similar to those of the equivalent offices in the federal government at that time.
Unlike the present day, when the Department of Justice in Washington, headed by the Attorney General, and employing hundreds of lawyers, maintains tight control over the work of the U.S. Attorneys, the situation in 1861 was quite different. There was then, of course, an Attorney General who sat in the President's Cabinet, but he did not head a government department; the Department of Justice would not be created until 1870. And until Congress acted in August 1861, the Attorney General had no authority to control the actions of the United States Attorneys in the various judicial districts. He could and did advise them on points of law or on government policy. But he gave advice, not direction.23
The first attorney general of Texas also was given the duty "to prosecute and defend all actions in the supreme court of the State, in which the State may be interested."24 Under this division of authority the attorney general appeared in criminal cases before the state’s only appellate court, the Supreme Court.25 District attorneys appeared with the attorney general in criminal cases before the appellate court from time to time.
In the Reconstruction Constitution of 1869, the office of attorney general moved to the executive department.26
The Constitution of 1876, which still defines our government, kept the attorney general in the executive branch. The constitutional duties of the office are described thus:
The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law.
The same Constitution took away the Supreme Court’s jurisdiction of criminal cases,27 thereby eliminating the specific constitutional authority of the attorney general to represent the State in appeals of criminal cases.
The Constitution gives the county attorneys and district attorneys authority to represent the State in criminal cases. It authorizes the legislature to give the attorney general duties which, presumably, could include criminal prosecution.
From 1876 to 1923, the attorney general had one, statewide responsibility in criminal cases: to represent the State in the Court of Appeals and its successor, the Court of Criminal Appeals. That responsibility was taken away by a legislative act in 1923 that created a special office to represent the State before the Court of Criminal Appeals.28 According to the emergency clause of the act, the attorney general had assigned only one assistant to the court, and the docket of the court was so crowded that the assistant could not properly brief and argue the cases submitted to the court.
Since 1923 the legislature has not given the attorney general any duty to prosecute criminal cases at any level of the courts of Texas. The law gives the Attorney General of Texas no general authority to initiate a prosecution. "Under our state law, only county and district attorneys may represent the state in criminal prosecutions. The attorney general, on the other hand, has no criminal prosecution authority. Rather, he is generally limited to representing the State in civil litigation."29 The authority of the attorney general is limited to assisting the district or county attorney, upon request.30
The limitation of the attorney general’s authority to civil cases, while unusual in comparison to that of other attorneys general, mirrors limitations in the judicial department of Texas’ government. The Supreme Court of Texas has had no jurisdiction of criminal cases since 1876, and Texas is one of only two states with a separate court of last resort for criminal cases. From 1891 until 1981, Texas also had intermediate courts of civil appeals—fourteen intermediate courts that, as the name implies, had jurisdiction only in civil cases. And in the state’s most populous county, as well as in some others, county attorneys have authority to represent the State in civil cases only.31
C. Tradition
The attorney general claims authority to represent the State before the Supreme Court of the United States because of a long practice of doing so.32 During most of the time in which this tradition developed, the Texas Constitution forbade the State from appealing in a criminal case.33 In 1981 a district attorney sought to petition the Supreme Court of the United States for a writ of certiorari to review an adverse decision of this Court when the attorney general refused to do so. The defendant applied to us for a writ of prohibition on the ground that the Constitution forbade an appeal by the State. We decided that the constitutional prohibition of appeals by the State applied only to appeals in the courts of this state, and it did not forbid the State to petition for writs of certiorari.34 Since then district attorneys of this state have applied for, and been granted, writs of certiorari from the Supreme Court of the United States to review adverse decisions of this Court and the courts of appeals of Texas.35 They have sought, and been denied, writs in other cases.36 And they have replied to applications from defendants in other cases. Yet it is certainly true that the attorney general traditionally has represented the State, most capably, in the great majority of its criminal cases in the Supreme Court.
As we have said recently in another context, a long practice whereby two prosecuting officials could seek appellate review in a higher court cannot prevail over the proper construction of the law that grants authority to seek such review.37 At the same time we held that the State has only one interest in a criminal case, and the State can be represented by only one attorney in making such decisions as whether to seek review and whether to confess error.38 Only from a clear expression of law that gave two officials the duty and authority to represent the State simultaneously in certiorari proceedings in criminal cases in the Supreme Court of the United States would we construe the law of this state in such a way.
C. Conclusion
The language and the history of the constitutional and statutory provisions that create and regulate the attorney general, the district attorneys, and the county attorneys are clear. They expressly give district attorneys and county attorneys general authority to represent the State in appeals of criminal cases. They express no authority for the attorney general to represent the State in criminal cases without the request of a district or county attorney. The tradition of the attorney general’s representation of the State on certiorari proceedings in criminal cases cannot provide authority that the law does not. The law gives only one answer to the question before us: The authority to represent the State in criminal cases in certiorari proceedings in the Supreme Court of the United States is in the district attorney or county attorney who had the authority to prosecute the case in the courts of Texas, and the attorney general is authorized to provide assistance to such an attorney at the request of that attorney or when such an attorney appoints an assistant attorney general as an assistant prosecutor or attorney pro tem under article 402.028 of the Government Code.
The tradition of the attorney general’s representation of the State on certiorari proceedings in criminal cases can be helpful in understanding whether, in a particular case, the attorney general was assisting a county or district attorney at that attorney’s request. As we understand the proceedings in this case, the District Attorney presumed that the Attorney General would represent the State in responding to the appellant’s petition for certiorari. While the District Attorney did not expressly request such assistance, his silence in the face of a long practice whereby the attorney general has undertaken to respond to such petitions when the county or district attorney does not, should be construed as an implied request for such assistance in this case.39 We therefore conclude that the representation of the State by the Attorney General in this case was authorized by law. We turn to the question of the effect of the confession of error.
II.
A.
A confession of error by the prosecutor in a criminal case is important, but not conclusive, in deciding an appeal.
The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.40
When presented with confessions of error, we have agreed frequently that the able prosecutors have correctly concluded that error was presented. But we have always done so after an independent examination of the merits of the claim of error.41
In this case the State has confessed in the Supreme Court the commission of an error that was not considered by us when the case was first submitted, because of our well-settled law that prevents appellate review of most claims that were not made in the trial court.
We begin our consideration of this confession of error by stating the facts. After the appellant was found guilty of capital murder, the parties presented the jury with evidence on the question of punishment.42 One of the special issues for capital-sentencing juries is "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."43 The State elicited testimony from Dr. Walter Quijano, a clinical psychologist, about statistical, "identifying markers" which help experts determine whether there is a probability that a defendant will present a future threat. One of the factors that, in his opinion, are associated with a defendant’s future dangerousness was his race or ethnicity. Dr. Quijano testified that:
"This is one of those unfortunate realities also that blacks and Hispanics are over-represented in the criminal justice system."
*****
"The race itself may not explain the over-representation, so there are other subrealities that may have to be considered. But, statistically speaking, 40 percent of inmates in the prison system are black, about 20 percent are – about 30 percent are white, and about 20 percent are Hispanics. So there’s much over-representation."44
In response to the State’s questioning, Dr. Quijano also stated that the appellant, an Argentinean, "would be considered a Hispanic."45
The appellant did not object. He met the testimony through cross-examination, undermining Dr. Quijano’s credibility and demonstrating that his definition of "Hispanic" was questionable. Furthermore, the appellant called his own expert witness, Dr. James McCabe, to testify concerning the appellant’s future dangerousness. McCabe made clear that race is not a "causative" factor in recidivism:
Q. [The appellant’s counsel] Well, can you explain the difference to the jury between a correlational study and a study that might show us something about causation? What’s the significance of that?
A. [Dr. McCabe] Well, correlational studies — and this is basically what — the stage that he was showing — they show a relationship between two items or two things, two behaviors, such as recidivism and a person’s race for instance.… And he said it is— the relationship is that more minorities tend to recidivate. But that is not all that helpful. Now, you use a lot of different things that may be more helpful. But it doesn’t cause- in other words, being black or Hispanic or whatever doesn’t cause a person to go out and do some damage to other people. It doesn’t cause at all.46
The appellant does not claim that his trial counsel was derelict in failing to object to Dr. Quijano’s testimony.47 To establish ineffective assistance of counsel, the appellant would have been required to prove, among other things, that his trial counsel’s actions were not the result of "sound trial strategy."48 As we have recently held, when a defense counsel presented to the jury evidence that "blacks and Hispanics are overrepresented in the … so-called dangerous population," counsel’s performance did not fall below an objective standard of reasonableness.49
Counsel might have been attempting, with Quijano’s testimony, to do two things: (1) place before the jury all the factors it might use against appellant, either properly or improperly, in its assessment of his future dangerousness, and (2) persuade the jury that, despite all those negative factors, appellant would not be a future danger if imprisoned for life because the prison system’s procedures and techniques would control or eliminate his tendency toward violence. Under the circumstances — the State had already presented evidence before the jury that appellant had a long and violent criminal record — we cannot say that counsel’s conduct could not be considered sound trial strategy.50
That the appellant’s method of handling the evidence was a strategy in this case is suggested by the separate application for habeas corpus that the appellant filed.51 It contains no claim of ineffective assistance of counsel with respect to Dr. Quijano’s testimony. This suggests that a hearing would demonstrate that his counsel chose not to object rather than neglecting to object.
B.
Assessing the effect of the State’s confession of error in this case is made more difficult because the error that was confessed concerns a claim that has not been properly presented to, or decided by, this Court. The question that the appellant presented to the Supreme Court ("whether a defendant’s race or ethnic background may ever be used as an aggravating circumstance in the punishment phase of a capital murder trial in which the State seeks the death penalty") is not one this Court considered in our earlier opinion. We held that the question was not before us because the appellant made no objection to the testimony of which he complained on appeal.
Our rules require defendants to object at trial in order to preserve an error for review on appeal.52 As to evidence in particular, our law is:
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.…53
Our law has always been thus.54 The courts of every state and the courts of the United States have similar rules.55
We have previously recognized two general policies for requiring specific objections. "First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony,"56 Stated more broadly, objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite.
For these reasons we have said, "All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say ‘that even constitutional guarantees can be waived by failure to object properly at trial,’ we mean that some, not all, constitutional rights may be forfeited."57
The courts of every jurisdiction in this country have some doctrine that permits appellate courts to consider claims that such fundamental rights were violated without objection.58 In the criminal law of this state, such errors are called "fundamental."
One such class of fundamental errors has been recognized by the legislature. A statute permits our appellate courts to consider claims that an error in the court’s charge to the jury, to which no objection was made, was so grave as to deny a defendant a fair trial.59
Before 1993 this Court had recognized more than a dozen other kinds of fundamental error. This jurisprudence "reflects piecemeal developments that each have somewhat different rationales. The overall situation, then, simply cannot be explained by reference to any unifying principle or principles. Marin v. State suggests both the need to reconsider this case law and a framework for that reconsideration."60
In Marin v. State, we said that the rules that require a timely and specific objection, motion, or complaint do not apply to two relatively small categories of errors: violations of "rights which are waivable only" and denials of "absolute systemic requirements."61 Such errors may be raised for the first time on appeal.62
Examples of rights that are waivable-only include the rights to the assistance of counsel and the right to trial by jury.63 The issue in Marin was "whether the failure of the trial judge to allow appointed counsel ten days of trial preparation in violation of article 1.051(e), Texas Code of Criminal Procedure, may be raised for the first time on appeal."64 We found that the right protected by this statute was waivable-only because the Legislature said so:
. . .the Court of Appeals rightly determined that article 1.051(e) is waivable only, inasmuch as the Legislature said so expressly by providing that appointed counsel "may waive the [10 days of] preparation time with the consent of the defendant in writing or on the record in open court." We agree with the lower court that this language clearly does not contemplate a forfeiture of the statutory right from a mere failure to object at trial.65
Absolute, systemic requirements were said to include jurisdiction of the person, jurisdiction of the subject matter, and a penal statute’s being in compliance with the Separation of Powers Section of the state constitution.66
Marin has been a watershed decision in the law of error-preservation. After Marin we have held that a right that formerly was thought to be "waivable only" actually requires an objection at trial.67 We have held that some requirements that were formerly held to be absolute requirements are not.68 We have held that a party may be estopped from relying on an absolute requirement.69 On the other hand, we have recognized three more absolute requirements since Marin: a constitutional requirement that a district court must conduct its proceedings at the county seat,70 the constitutional prohibition of ex post facto laws,71 and certain constitutional restraints on the comments of a judge.72
In the Marin framework, the question in this case is whether the introduction of the evidence in question was one to which the appellant was required to have made a timely, specific objection at trial. He was required to object unless his right to avoid this type of evidence is a right that is either waivable-only or an absolute, systemic requirement.
That the State refrain from introducing evidence that violates the defendant’s rights under the Equal Protection Clause is neither an absolute, systemic requirement nor a right that is waivable only. We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.73 This is true even though the error may concern a constitutional right of the defendant.74 Specifically, a defendant’s failure to object to testimony prevents his raising on appeal a claim that the testimony was offered for the sole purpose of appealing to the potential racial prejudices of the jury.75
Because the appellant did not object to the admission of the testimony of which he now complains, the question he seeks to present has not been preserved for review on appeal.
C.
If the State’s confession of error in the Supreme Court implicates any federal-law claim, it must be that the Fourteenth Amendment requires this Court to hold that the admission of Dr. Quijano’s evidence is a reversible error. No such claim has been presented to us, much less decided by us.
The Attorney General and other amici curiae say that the Supreme Court’s action in granting review is a binding determination that the appellant’s Fourteenth Amendment claim has been decided by this Court. Amici attach too much significance to the Supreme Court’s decision to grant the petition, summarily vacate our judgment, and remand the case to us "for further consideration in light of the confession of error by the Solicitor General of Texas."76
The Supreme Court has, of course, not only jurisdiction to determine its jurisdiction, but also a duty to determine for itself precisely the ground on a which a state court’s judgment rests.77 Here the Supreme Court was presented, on the one hand, with the opinion of this Court that decided the case on state-law grounds and, on the other, a petition for certiorari that presented a federal question and a response that admitted there had been a federal error. It is not surprising that the Supreme Court should exercise its jurisdiction to have the case clarified before making a final decision as to its jurisdiction.
D.
If the State’s confession of error be construed as a confession that the Fourteenth Amendment requires reversal of a conviction because of the introduction of Dr. Quijano’s testimony, without objection, we cannot agree. The appellant has not demonstrated how his constitutional claim is different from the ones we have held forfeited in the past, except by directing our attention to Zant v. Stephens.78 The appellant cites Zant for the proposition that a death sentence must be set aside if an aggravating factor is attached to factors that are constitutionally impermissible or totally irrelevant to the sentencing process. He relies on this passage from Zant:
Respondent contends that the death sentence was impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a "substantial history of serious assaultive criminal convictions," for these instructions may have affected the jury’s deliberations. In analyzing this contention it is essential to keep in mind the sense in which that aggravating circumstance is "invalid." It is not invalid because … Georgia attached the "aggravating" label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant, cf. Herndon v. Lowry, 301 U.S. 242 (1937) …. If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury’s decision to impose death be set aside.79
This obiter dictum is of little help to the appellant, for examination of the authority there cited demonstrates that the requirement of objection applies to such a case.
The question in Herndon v. Lowry was whether the statute under which Herndon was convicted for attempting to incite insurrection was so vague as applied to him as to violate the constitutional guaranties of freedom of speech and assembly embodied in the Fourteenth Amendment.80 He first tried to raise this claim in the Supreme Court on appeal from his conviction, but the Court held it had no jurisdiction of such a federal claim since the state court’s judgment was based on his failure to preserve the question by specific and timely exceptions and assignments of error.81 Only when the state courts agreed to consider the federal grounds in habeas corpus proceedings was Herndon able to seek further review.82 Far from supporting the appellant’s contention that equal-protection claims are excepted from the requirement to object, the Supreme Court’s decisions hold the opposite.
E.
We conclude that the State’s confession of error in the Supreme Court is contrary to our state’s procedural law for presenting a claim on appeal, as well as the Supreme Court’s enforcement of such procedural law when it is presented with equal-protection claims. If any decision of any court in this country would support another conclusion, the appellant, the Attorney General and other amici, and the dissenting opinion have not informed us of it.
After our independent examination of the claim, we hold that no complaint about Dr. Quijano’s testimony is presented for appellate review because the appellant did not make an objection to the testimony as our law has always required. Under that law a decision on the admissibility of evidence that there is a correlation between ethnicity and recidivism cannot be reached, and we express no view on that issue.
The judgment of the trial court is affirmed.
En banc.
Delivered March 13, 2002.
Publish.
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