Opinion
No. 05-09-01463-CR
Opinion filed April 27, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F08-72643-K.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Jacob Lamount Brown pleaded no contest and judicially confessed to the charge of aggravated sexual assault of his daughter T., who was thirteen years old at the time of the offense. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B), (e) (West Supp. 2010). Brown waived a jury trial. After a punishment hearing, the trial court sentenced him to ten years' imprisonment and a $1,000 fine. In a single issue, Brown contends the trial court erred in allowing T.'s mother to testify on the type of punishment — i.e., imprisonment versus probation-appellant should receive. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. At the punishment hearing, the State told Laquitha N., T.'s mother, that the hearing was to determine Brown's punishment. The State said, "And this is your opportunity to tell the judge what you believe that should be. So at this time, you may speak to the judge and tell him what you think should be [Brown's] punishment[.]" Brown objected on grounds of "invading the province of the fact finder." The trial court overruled the objection and said, "Go ahead." N. said that she "really can't say" what she wanted; she "had a lot of mixed feelings"; T. had been "really affected"; and "if she [i.e., T.] wants him to be punished, I do too." She said she did not "feel like he sat and thought about what he did long enough" and she just wanted "him to think about what he did and how it affected his daughter. . . ." The State then asked her whether she thought probation was appropriate, and she replied, "No." To preserve a complaint for review, the record must show the complaint was made to the trial court by a timely request, objection, or motion and the trial court either ruled on the request, objection, or motion or refused to rule on the request, objection, or motion and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). The complaining party bears the responsibility of clearly conveying to the trial court the particular complaint, including the precise and proper application of the law and the underlying rationale. Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). The complaining party must object each time the complained-of testimony is presented or obtain a running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Brown objected when the State invited N. to tell the court what she thought Brown's punishment should be. See, e.g., Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (after murder victim's son recommended death penalty, trial court sustained objection, but denied request for mistrial, noting appropriate victim impact evidence did not include victim's family's "opinions as to the punishment deserved by the defendant" and citing Payne v. Tennessee, 501 U.S. 808, 830 n. 2 (1991)). But Brown did not object when N. was asked whether she thought probation was appropriate. We conclude Brown failed to obtain a running objection and failed to object when the complained-of testimony was solicited. Under these circumstances, we conclude Brown failed to preserve his issue for review. See Tex. R. App. P. 33.1(a); Pena, 285 S.W.3d at 463-64; Valle, 109 S.W.3d at 509. We resolve his single issue against him. We affirm the trial court's judgment.