Opinion
No. 04-14-00242-CR
04-22-2015
Rudy MENDEZ, Appellant v. The STATE of Texas
MEMORANDUM OPINION
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR2880
Honorable Melisa Skinner, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED
Rudy Mendez appeals his convictions for sexual assault of a child and indecency with a child by sexual contact. His sole issue is that the trial court erred by denying his motion for new trial because the prosecution improperly questioned him during the punishment phase about his failure to testify during the guilt-innocence phase, and improperly commented on his failure to testify in closing argument.
"As a prerequisite to presenting a complaint for appellate review, the record must show . . . the complaint was made . . . by a timely request, objection or motion . . . ." TEX. R. APP. P. 33.1(a). "A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent." Weems v. State, 328 S.W.3d 172, 179 (Tex. App.—Eastland 2010, no pet.) (holding motion for new trial based on prosecutor's improper remark about a defendant's choice not to testify was untimely because it was made after the prosecutor's closing argument).
The record in this case shows the alleged improper questions and argument were made during the punishment phase on November 7 and 8, 2013. The jury returned its verdict on punishment on November 8. The trial court accepted the verdict and set the case for sentencing on December 10. Mendez first objected to the prosecution's questions and comments in his "Objection/Motion for Mistrial," filed on December 10. Because the objection was not timely, Mendez failed to preserve his complaint for appellate review. See id. We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice DO NOT PUBLISH