Opinion
No. 06-03-00163-CR.
Submitted: February 23, 2004.
Decided: March 19, 2004. DO NOT PUBLISH.
On Appeal from the 188th Judicial District Court, Gregg County, Texas, Trial Court No. 30106-A.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Christopher Leon Pickron pled guilty before a jury to the offense of indecency with a child. The jury heard evidence and assessed punishment at five years' imprisonment. Pickron appeals, complaining of improper jury argument. The State's evidence showed that Pickron lived next door to the victim and was a former boyfriend of the victim's mother. Even after Pickron and the victim's mother terminated their romantic relationship, they continued to be good friends and it was not unusual for Pickron to be at the victim's residence. The mother described the relationship between Pickron and the victim as "like father and daughter," and the victim testified Pickron was "like an uncle" to her. Before the incident in question, the victim had confided in Pickron and revealed to him she had been sexually assaulted by her mother's brother. On the night of the incident in question, Pickron was at the victim's residence watching a movie with the victim and her sister. The victim's mother was asleep in the bedroom. Pickron and the victim fell asleep on the couch while watching the movie. Pickron testified that, while half asleep, and as if he was thinking about the victim's mother, he "groped" the victim. He also kissed the victim and testified that is when he realized what he was doing. The victim awoke, began crying, and went to her mother's room. Pickron confessed to her mother he had "touched [the victim] all over." The victim's mother called police, who investigated. Pickron made two statements to police. In both he admits touching the victim on the breast and vagina, but denied he ever penetrated the victim's vagina. The victim testified at trial to the same fact situation, but testified Pickron put his hand on the "inside" of her vagina. Pickron continued to deny at trial he had penetrated the victim's vagina. During closing arguments, defense counsel emphasized Pickron's consistent story and cooperation with police. He emphasized Pickron had not deviated from his story from the beginning and remarked, "Why would that be unless everything happened exactly like my client said it happened?" The State responded in its closing argument:
[STATE]: . . . . So now [the victim] is not only twice a victim of molestation; she is now a liar. That is what he just told you.
[DEFENSE COUNSEL]: Judge, I object to that improper argument that I called [the victim] a liar. I never said anything like that or anything close to that. I would object to that argument.
THE COURT: The jury will recall what the evidence and what the testimony in the arguments were. I'd ask that you do not personally attack each other in your argument.
[STATE]: You heard that 14-year-old girl sit up here and tell you that his finger penetrated her vagina. And he just got up here, the Defendant, and said it didn't happen. And his lawyer just told you that he said everything was the truth.Pickron contends the State's jury argument was an improper strike at Pickron over the shoulders of his counsel. To preserve error for appellate review, the complaining party must make a timely, specific objection. Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Crim.App. 1985) (op. on reh'g). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App. [Panel Op.] 1980). The complaining party must obtain an adverse ruling from the trial court. DeRusse v. State, 579 S.W.2d 224, 235 (Tex.Crim.App. [Panel Op.] 1979). Finally, the point of error on appeal must correspond to the objection made at trial. Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). To reach the level of an adverse ruling, if the objection is sustained, counsel must then ask for an instruction to disregard. If the instruction is given, counsel must then move for a mistrial. Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim. App. 1985); Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App. 1984). If counsel does not pursue the objection to an adverse ruling, error is not preserved. TEX. R. APP. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex.Crim.App. 1991). If an objection is made, but the trial court does not rule, the objection is waived. Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim. App. 1984). In this case, an objection was made. However, the trial court did not rule on it. A statement by the trial court that the jury would remember the evidence is not sufficient to preserve error. DeRusse, 579 S.W.2d at 235. If the court's ruling could be construed as sustaining the objection, counsel must then ask for an instruction to disregard. If the instruction is given, counsel must then move for a mistrial. None of the avenues to pursue an adverse ruling were taken. Pickron, therefore, did not preserve error. We affirm the judgment.
A violation of TEX. PEN. CODE ANN. § 21.11(a)(1) (Vernon 2003). The original indictment also charged Pickron with sexual assault of a child in violation of TEX. PEN. CODE ANN. § 22.011(2)(A) (Vernon Supp. 2004). The State abandoned that charge before trial.