Nos. 14-07-00900-CR, 14-07-00901-CR
Memorandum Opinion filed March 31, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause Nos. 1035048 1035049.
Panel consists of Justices ANDERSON and FROST, and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
J. HARVEY HUDSON, Senior Justice.
Appellant, Detrick Jones, appeals from his convictions for aggravated sexual assault of a child. In the sole issue presented on appeal, appellant contends that, in assessing punishment, the trial court improperly considered incriminating statements made during a mandatory polygraph examination. We affirm.
BACKGROUND
On April 5, 2006, appellant pled guilty to two felony offenses of aggravated sexual assault of a child. The court placed appellant on deferred adjudication for ten years. One of the conditions of appellant's deferred adjudication required that he "[s]ubmit to any program of psychological and physiological assessment at the direction of [his] Community Supervision Officer, including the polygraph, to assist in treatment, planning and case monitoring." On August 10, 2007, the State filed a motion to adjudicate guilt, alleging appellant violated the terms and conditions of community supervision by consuming alcohol on several occasions. Appellant entered a "not true" plea. After a hearing, the court found the alcohol consumption allegation to be true. The court assessed punishment at seven years' confinement for each offense of aggravated sexual assault. On appeal, appellant argues the trial court, in imposing punishment, improperly considered polygraph admissions obtained in violation of his Fifth Amendment privilege against self-incrimination. Appellant now asks that we reconsider one of our prior decisions which holds that the admission of statements made during mandatory polygraph examinations does not violate the privilege against self-incrimination. See Berry v. State, No. 14-02-01240-CR, 2003 WL 22672395, at *2 (Tex.App.-Houston [14th Dist.] Nov. 13, 2003, pet. ref'd) (mem. op., not designated for publication). Specifically, in response to polygraph examination questioning, appellant admitted to having sexual contact with a child other than the complainants prior to his conviction. He claims he "had no lawful choice but to answer as he did." ANALYSIS
Before turning to the merits of appellant's appeal, we must address the State's contention that error has not been preserved for our review. Specifically, the State argues that appellant's objection in the trial court to the admission of polygraph evidence does not comport with the arguments raised on appeal. We agree with the State and hold appellant has waived our review of the argument presented on appeal. See Rothstein v. State, 267 S.W.3d 366, 373 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). A defendant's appellate contention must comport with the specific objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). An objection stating one legal theory may not be used to support a different legal theory on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). We will not consider errors, even of constitutional magnitude, not called to the trial court's attention. See id. At both the adjudication and punishment stages of the hearing, the State offered a report into evidence written by the individual who administered appellant's polygraph examination. Appellant's trial counsel did not object to the admission of this evidence. At the adjudication stage, she stated she had seen the report and had no objections. The report included appellant's incriminating statements made during the polygraph examination. During the punishment stage, appellant's probation officer, Shawn Sylvester, testified appellant admitted there had been prior undisclosed victims of his crimes. Defense counsel objected to the misstatement, arguing appellant admitted to only one prior victim. Sylvester corrected his answer and explained appellant confessed to only one prior victim, but also admitted to continued inappropriate thoughts and fantasies about minors. He further stated the substance of his testimony was included in the polygraph report. At trial, appellant's counsel objected only to Sylvester's misstatement. She did not object to Sylvester's testimony as violating appellant's privilege against self-incrimination. Instead, this argument was raised for the first time in appellant's brief. Because appellant's argument on appeal does not comport with any objection raised in the trial court, appellant has failed to preserve this issue for review.See Tex. R. App. P. 33.1(a); Rothstein, 267 S.W.3d at 373-74. CONCLUSION
We hold that appellant waived his complaint that the trial court erred in considering appellant's incriminating statements during the punishment proceedings. The judgments of the trial court are affirmed.