MICHAEL MCCOY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as modified; Opinion issued January 30, 2007
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00317-CR
No. 05-06-00319-CR
............................
MICHAEL MCCOY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-51838-N & F05-51839-N
.............................................................
MEMORANDUM OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice Whittington
        Michael McCoy appeals his convictions for the aggravated sexual assaults of B.M. and C.M. Each child was under the age of fourteen years at the time of the assaults. After finding appellant guilty as charged, the jury assessed punishment at ninety-nine years' confinement and a $5000 fine in each case. In two issues, appellant claims the trial judge erred in overruling his objection to certain evidence and that the judgments contain clerical errors. We modify the judgments and, as modified, we affirm the trial court's judgments.
        In his first issue, appellant claims the trial judge erred in allowing the testimony of Amy Miller, the victims' therapist. Under this issue, appellant contends Miller was “not qualified under the medical diagnosis” hearsay rule exception.         For an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac, 782 S.W.2d at 870.
        At trial, when asked if she remembered the specifics of what happened to B.M., Miller responded, “With [B.M.] the last thing that she had said-” Appellant then objected “to anything that [B.M.] said.” The prosecutor replied that the statements were “for the purpose of medical diagnosis.” The judge overruled the objection. Miller then testified without further objection from appellant. Appellant did not in any way object to Miller's qualifications. Because his complaint on appeal does not comport with the objection lodged below, we conclude this issue has been waived. See Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003) (complaints not preserved for review because objection at trial did not comport with complaint on appeal); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (error is not preserved when objection raised on appeal differs from that lodged at trial).
        Even if the objection were sufficient to preserve this issue, we would nevertheless conclude the error was harmless. See Tex. R. App. P. 44.2(b) (providing that appellate court must disregard non-constitutional error that does not affect defendant's substantial rights); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) (same). Under rule 44.2(b), we may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance the error did not have a “substantial and injurious effect or influence in determining the jury's verdict.” Garcia, 126 S.W.3d at 927 (emphasis in original).
        The testimony appellant complains of dealt primarily with B.M.'s nightmares and fears following the sexual abuse, including her fear that appellant might not be convicted. This limited testimony did not have a significant impact in the face of the considerable evidence the jury heard regarding appellant's sexual abuse of B.M. and C.M., including the girls' testimony as well as that of their mother. Regarding appellant's complaint of harm during the punishment phase, we note the focus during punishment was on appellant's previous arrests and conviction and his responsibility for his actions. There was ample evidence to support the jury's decision to sentence appellant to a lengthy period of confinement. See Garcia, 126 S.W.3d at 927-28. We overrule appellant's first issue.
        Under his second issue, appellant contends the second page of each corrected judgment incorrectly states that, following deliberation, the jury assessed punishment at “Guilty.” Appellant requests we reform the judgments to correctly reflect that the jury assessed punishment at “99 years in the Institutional Division-TDCJ and a $5000 fine” in each case. The State concedes the judgments should be reformed.
        We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.-Dallas 2002, pet. ref'd). Here, the record shows the jury assessed punishment at ninety-nine years' imprisonment and a $5000 fine in each case. Therefore, we modify each judgment, deleting the word “Guilty” following the first full paragraph on page two and replacing it with “99 years in the Institutional Division-TDCJ and a $5000 fine.” We sustain appellant's second issue.
        We affirm the trial court's judgments as modified.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060317F.U05