James Kent Winter v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-016-CR

JAMES KENT WINTER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-102-C

O P I N I O N

James Kent Winter was convicted by a jury of aggravated sexual assault and sentenced to fifty years imprisonment. See Tex. Penal Code Ann. 22.021 (Vernon 1989). Winter appeals on one point, claiming that during closing argument the prosecutor "struck at him over the shoulders of his defense counsel." The issue presented is whether the trial court erred in overruling Winter's objection to the prosecutor's statements during closing argument.

During the trial, defense counsel attempted to impeach the victim by pointing out differences between the victim's testimony and earlier statements that suggested that the victim's account of the events had changed. The police report and the written statement with which Winter tried to impeach the victim had not been revealed to the jury except when defense counsel pointed out these differences. However, these documents were in the prosecutor's file. In closing argument, the prosecutor told the jury that she did not know where defense counsel "came up with" this other evidence. Defense counsel immediately objected, claiming that the prosecutor's statement was a misstatement of fact and that the prosecutor knew exactly where the evidence came from. The court overruled the objection. The prosecutor completed her closing argument, the jury retired and returned with a guilty verdict, and the court recessed for the day. The following morning defense counsel stated to the court that he wished to "renew" his objection from the previous day, claiming that the prosecutor had struck at Winter over the shoulders of defense counsel.

To preserve a complaint for appellate review, a party must have presented a timely objection to the trial court. Tex. R. App. P. 52(a). To be timely, an objection must be made as soon as the grounds for the objection become apparent. Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). Grounds for objection become apparent when the defense knows or should have known an error has been made. Id. Winter's objection that the prosecutor had misstated the evidence was timely. See id. However, Winter's complaint on appeal is that the State was striking at him over the shoulders of defense counsel. An objection presented on appeal must be the same as the objection raised at trial. Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872, 109 S. Ct. 190, 102 L. Ed. 2d 159 (1988). Since the timely objection is not raised on appeal, we do not consider it.

Winter did not raise the complaint that he urges on appeal that the prosecutor was striking at him over the shoulders of defense counsel until the next day. An objection raised the day after the objectionable occurrence is not timely. See Studevant v. State, 833 S.W.2d 712, 714 (Tex. App. Houston [1st Dist.] 1992, no writ); Rodriguez v. Universal Fastenings Corp., 777 S.W.2d 513, 519-20 (Tex. App. Corpus Christi 1989, no writ). Winter's objection made the day after he knew or should have known grounds for an objection had arisen was not timely. The complaint is not preserved for our review.

We overrule the point.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 13, 1993

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