Mario Menchaca v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

MEMORANDUM OPINION
No. 04-04-00251-CR
Mario MENCHACA,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 4, Bexar County, Texas
Trial Court No. 855900
Honorable Sarah Garrahan-Moulder, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED.

A jury found appellant, Mario Menchaca, guilty of driving while intoxicated. The trial court assessed punishment at one hundred and twenty days confinement, probated for ten months, and fined Menchaca five hundred and fifty dollars. On appeal, Menchaca raises two issues. Menchaca contends the trial court erred in overruling his objection to the prosecutor's comments during closing argument. In addition, Menchaca contends the trial court erred in denying his motion for mistrial, which was predicated on improper jury argument. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.4.

1. In his first issue, Menchaca contends the trial court erred in overruling his objection to the prosecutor's statements during closing argument. During closing argument, the following exchange occurred:

STATE: We're trying to say stand up and admit that what you did was wrong. We're trying to say that we do not want people driving while intoxicated on the streets of Bexar County. Ladies and gentleman, I could go on and on, but I encourage you to watch the video. If you want-if you want this individual in this State on your streets-

DEFENSE: Objection, your Honor. This is a plea for motor vehicle in general and, I mean-you know what I mean.

TRIAL COURT: Overruled.

STATE: It's a plea for law enforcement and it's up to you. Thank you very much.

THE COURT: Ladies and gentlemen, you may go deliberate.

Menchaca argues the prosecutor's statements constituted an impermissible comment on his failure to testify and impermissibly shifted the burden of proof and production of evidence to him. See U.S. Const. amend. V., Tex. Const. art. I 10; Tex. Code Crim. Pro. Ann. art. 38.08 (Vernon 1979) (stating that counsel must not comment on defendant's failure to testify). The record reveals, however, that Menchaca waived his complaint. Trial counsel must timely object and point out the specific grounds for the objection to preserve error, even if the claimed error is "constitutional" or "incurable." See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997); see generally Tex. R. App. P. 33.1. Although Menchaca timely objected to the prosecutor's comment, he failed to point out the specific grounds for his objection and thus waived the error he claims. Id. Further, it is unclear from the record what portion of the prosecutor's closing statement Menchaca intended to object to and on what grounds. See Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977) (waiver does not result from a general objection if the correct grounds of exclusion were obvious to the trial court). "This is a plea for motor vehicle in general" cannot be construed as a specific objection on self-incrimination grounds. Because the specific grounds for Menchaca's objection were not stated and are not apparent from the context, the trial court did not err in overruling Menchaca's objection. Menchaca's first issue is overruled.

2. In his second issue, Menchaca contends the trial court erred in denying his motion for mistrial, which was predicated upon the State's comment during its closing statement for Menchaca to "stand up and admit what you did was wrong." Menchaca's specific objection to the State's comment and his motion for mistrial were not made at the time of the alleged error; Menchaca waited until the jury had deliberated and returned with a guilty verdict before stating specific grounds for his objection and requesting a mistrial. To preserve a complaint for appellate review, an objection to jury argument must be timely. See Banda v. State, 890 S.W.2d 42, 61 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1105 (1995); Tex. R. App. P. 33.1. Because Menchaca did not object to the State's argument in a timely manner, we hold the trial court did not err in overruling his motion for a mistrial. Menchaca's second issue is overruled. Because Menchaca waived his complaints by failing to timely object to the comment and by failing to make the substance of his objection known to the trial court, we affirm the trial court's judgment.

Catherine Stone, Justice

DO NOT PUBLISH