Opinion
No. 10-06-00116-CR.
Opinion delivered and filed January 17, 2007. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2005-585-C. Affirmed
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Justice VANCE concurs in the judgment).
MEMORANDUM OPINION
Aguilar appeals his convictions for aggravated sexual assault. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 7, 1995 Tex. Gen. Laws 2734, 2737 (amended 1997-2003) (current version at TEX. PENAL CODE ANN. § 22.021(a) (Vernon Supp. 2006)). We affirm. In Aguilar's one issue, he contends that the trial court erred in overruling Aguilar's objection to the State's punishment argument.
As a prerequisite to presenting a complaint 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); see Buchanan v. State, No. PD-0006-06, 2006 Tex. Crim. App. LEXIS 2032, at *6-*7 (Tex.Crim.App. Oct. 18, 2006); Haley v. State, 173 S.W.3d 510, 516-17 (Tex.Crim.App. 2005). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Neal v. State, 150 S.W.3d 169, 175 (Tex.Crim.App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004)); see Marin v. State, 851 S.W.2d 275, 278-80 (Tex.Crim.App. 1993). ". . . Texas Rule of Appellate Procedure 33.1 [is a] 'judge-protecting' rule of error preservation." Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005) (quoting Martinez v. State, 91 S.W.3d 331, 335 (Tex.Crim.App. 2002)). "Whichever party complains on appeal about the trial judge's action must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the . . . rule in question and its precise and proper application to the evidence in question." Reyna at 177. "When . . . the legal basis is not obvious, it does not serve the purpose of the contemporaneous-objection rule for an appellate court to reach the merits of a forfeitable issue that is essentially raised for the first time on appeal." Buchanan at *6-*7. Moreover, in order to preserve the complaint, "the point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). At trial, the following colloquy occurred during the State's argument:
[STATE:] I will tell you that all three of these counts because of the dates of the offenses, they are going to run concurrent.
[DEFENSE]: I'm going to object to that, Judge. That is not something the jury is allowed to consider. That is not something they can consider.
[STATE]: It is, Judge. That's the law. I am arguing the law. The sentences have to run concurrent by law.
[DEFENSE]: But that is not something the jury can consider and should consider.
[STATE]: It is the law, Judge, this office is —
[DEFENSE]: It's not something they can be instructed on.
THE COURT: Overruled.(5 C.R. at 82.) On appeal, Aguilar contends that the State's argument was improper because the trial court could have ordered Aguilar's sentences to run consecutively if the court found that Aguilar committed the offenses after the effective date of amendments to Texas Penal Code Section 3.03. See TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (Vernon Supp. 2006); Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 1997 Tex. Gen. Laws 2250, 2251 (amended 2005) (current version at TEX. PENAL CODE ANN. § 3.03(b) (Vernon Supp. 2006)); id. §§ 7(a), 8, 1997 Tex. Gen. Laws at 2252-53. Aguilar's objection at trial does not comport with his complaint on appeal so as to make the trial court aware of that complaint. We overrule Aguilar's issue. Having overruled Aguilar's sole issue, we affirm.