Robles, Walter Alfonso v. The State of Texas--Appeal from 351st District Court of Harris County

Affirmed and Memorandum Opinion filed October 28, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01338-CR

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WALTER ALFONSO ROBLES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 878,212

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M E M O R A N D U M O P I N I O N

Walter Alfonso Robles appeals a conviction for aggravated sexual assault[1] on the grounds that: (1) the trial court erroneously remarked that appellant had to remain in custody while everyone else was free to leave the courtroom; and (2) the prosecutor made an improper jury argument. We affirm.

Appellant s first issue argues that the trial court infringed on his presumption of innocence by allegedly remarking, at the close of the first day of trial and in the presence of several jurors, that appellant had to remain in custody while everyone else was free to leave the courtroom. Appellant claims that so informing the jurors that he was in custody was the equivalent of parading him in shackles before the jury.

However, appellant has cited no authority suggesting that such a comment, if made, infringed on his presumption of innocence. In addition, there is no reporter s record of the judge making any such comment; the trial judge denied ever doing so; both bailiffs denied hearing the judge make the alleged comment; and one of the prosecutors recalled the judge stating only: Mr. Robles, you must stay here. Lastly, appellant waived this complaint by subsequently testifying himself that he had been in custody since his arrest. Because the alleged remark was therefore not shown to have been improper or made, or the complaint preserved, appellant s first issue is overruled.

Appellant s second issue contends that the prosecutor improperly invited the jury to convict him because his co-defendants had already pled guilty to the offense by arguing: Well, you know what about the DNA? Miguel Bolainez pled guilty to the offense. Saul Alvarez pled guilty to the offense. Carlos Duran pled guilty to the offenses, and guess what? Is there any DNA there? No. However, because appellant failed to object to this argument at trial, his complaint presents nothing for our review. See Tex. R. App. P. 33.1(a)(1); Mathis v. State, 67 S.W.3d 926-27 (Tex. Crim. App. 2002). Accordingly, appellant s second issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed October 28, 2003.

Panel consists of Justices Hudson, Edelman, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty, and the trial court imposed punishment at life imprisonment.