NO. 07-01-0107-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
DECEMBER 30, 2002
______________________________
DAVID MEDINA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 43028-E; HON. ABE LOPEZ, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ.*
David Medina appeals his conviction for delivering a controlled substance. The jury
assessed punishment after he pled guilty to the charge. His sole point of error involves
due process. That is, he contends that he was denied due process and a fair trial since
the “State failed to allow [him] to take a shower or sleep on anything other than concrete
prior to the [punishment] hearing” and the trial court “would not allow him to explain his
appearance to the jury.” We overrule the issue and affirm the judgment.
*
John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2002 ).
After pleading guilty and before commencement of the punishment phase of the
trial, appellant was taken into custody. He spent the evening in jail and slept on a concrete
bench. This allegedly prevented him from obtaining a restful night’s sleep. So too was he
denied an opportunity to shower before appearing in court the next day. However, this
situation was not made known to either counsel for appellant or the trial court until after
appellant appeared at the punishment hearing, testified on his own behalf, called other
witnesses to testify, and rested his case. By that time, the trial court had not only informed
the jury that testimony in the punishment phase had concluded, but also solicited
comments from counsel upon the proposed jury charge.
When inquiry was made by the trial court into the situation, appellant was asked
whether he had “anything that [he] would like to tell the jury . . . that you did not tell them
because of the conditions that [he] testified to . . .?” Appellant answered: “No, sir.” Later,
appellant reiterated that there was nothing else he wanted to tell the jury other than to
explain his physical appearance. Absent from the record, however, is any testimony or like
evidence describing appellant’s appearance. And, though he thought that a good night’s
sleep and a shower may have enabled him to “project[] a better image to the jury, we are
directed to nothing in the record which indicates that his appearance (whatever its state
may be) influenced the jury’s verdict.
Authority recognizes that the appearance of an accused may impact upon his
constitutional right to a fair trial. See e.g., Randle v. State, 826 S.W.2d 943, 944 (Tex.
Crim. App. 1992). Yet, complaint about a purported infringement of that right must be
raised in a timely manner. Manning v. State, 864 S.W.2d 198, 204 (Tex. App.–Waco
1993, pet. ref’d) (wherein Manning failed to object to wearing a jail identification bracelet
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until after voir dire began). And, it is timely if urged at the earliest available opportunity.
Id.; Lusk v. State, 82 S.W.3d 57, 60 (Tex. App.–Amarillo 2002, pet. ref’d) (stating that an
objection must be urged at the earliest opportunity to enable the trial court to correct the
circumstance). Here, the complaint was not raised until the conclusion of the punishment
phase of the trial and after appellant had already testified. Waiting to complain until after
the jury has seen the appellant is not the earliest opportunity. See e.g., Manning v. State,
864 S.W.2d at 204. Thus, appellant did not adequately preserve his complaint for appeal.
Next, as appellant explicitly states in his brief, “it is the failure of the trial court to at
least have permitted appellant an opportunity to explain his physical state, including his
personal appearance, which is appealed.” In other words, the issue before us involves his
physical appearance and its potential impact upon the jury. Given this, logic dictates that
before we can assess that potential impact, we must have some evidence from which we
can determine his appearance. Yet, there is none of record. We do not know if he was
disheveled, dirty, discomposed or the like. We are simply told that he slept on a concrete
bench and was denied a shower. Whether those circumstances adversely affected his
appearance to an extent depriving him of a fair trial is utter speculation. And, we cannot
reverse a judgment based upon speculation. Simply put, appellant has not presented us
with a record sufficiently illustrating reversible error.
Accordingly, the judgment is affirmed.
Brian Quinn
Justice
Do not publish.
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