Opinion
No. 05-04-00958-CR
Opinion issued November 7, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-32601-LJ. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
MEMORANDUM OPINION
Ricardo S. Gonzales appeals his conviction for aggravated robbery. After the jury found appellant guilty, it assessed punishment at 40 years' confinement and a $5000 fine. In a single point of error, appellant contends the trial court erred by overruling his motion for mistrial after certain testimony about an extraneous offense. We overrule appellant's point of error and affirm the trial court's judgment. In his sole point of error, appellant complains about Detective Enrique Oseguera's testimony that he recognized one of the complainants "based on the prior case that I was investigating involving [appellant]." At the time of the complained-of testimony, defense counsel did not object or request an instruction to disregard, and did not move for a mistrial. It was not until after the State passed the witness that defense counsel questioned Oseguera outside the presence of the jury. At that time, defense counsel requested a mistrial but asked the trial court not to instruct the jury to disregard the testimony because it would only "make what's bad, worse." Under these circumstances, we cannot conclude appellant preserved error for our review. To be considered timely, an objection must be made at the first opportunity or as soon as the basis of the objection becomes apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). Unless the defendant can show a legitimate reason to justify the delay, error is waived if an objection is made after the prosecutor has elicited the improper testimony. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). Here, appellant did not object to the complained-of testimony at the first opportunity, and appellant has made no showing of a legitimate reason for the delay. Further, appellant specifically requested the trial court not to instruct the jury. Thus, appellant failed to preserve error, if any, for our review. We overrule appellant's sole point of error. Accordingly, we affirm the trial court's judgment.