IN THE
TENTH COURT OF APPEALS
No. 10-05-00216-CR
David Arden Sinclair,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2004-508 C
MEMORANDUM Opinion
Appellant David Sinclair was charged by indictment with two counts of aggravated sexual assault of J., who was age four at the time of the offenses. One count alleged penetration by Sinclair’s sexual organ; the other alleged penetration by his finger. A jury found Sinclair guilty on both counts and assessed punishment of 25 years (to run consecutively) and a $5,000 fine for each count. We will affirm.
Sinclair’s sole issue asserts that the trial court abused its discretion in admitting extraneous-offense evidence of Sinclair’s sexual assault of J.’s younger sister, L. The alleged offenses occurred while Sinclair was temporarily living in the home of J.’s family for about a month (J.’s mother is Sinclair’s niece). After the alleged offenses occurred, Sinclair left suddenly. Both girls developed urinary and vaginal problems, and when their mother sought medical care, J. made an outcry against Sinclair.
In opening statement, the prosecutor suggested that both girls had been molested by Sinclair. J., who was seven at the time of trial, was the State’s first witness and gave the following testimony pertinent to Sinclair’s issue:
Q. I know it’s hard to talk about, but can you try to explain to the jury what happened to you that was bad? Did you walk into a room in your house one day when somebody was hurting your little sister?
A. Yes.
Q. Who was hurting her?
A. Uncle David.
. . .
Q. What was Uncle David doing to [L.]? Was Uncle David in your’s and [L.’s] room?
A. Yes.
. . .
Q. Was [L.] crying when you walked in the room?
A. Yes.
Q. Why was she crying?
A. Because she was scared of him.
. . .
Q. Was he touching [L.]?
A. Yes.
Q. Do you know where he was touching her?
A. No.
Q. Where was his hand?
A. On her.
. . .
Q. Did you try to help your little sister?
A. Yes.
Q. What did you try to do?
A. Stop him.
Q. And [L.] was crying?
A. Yes.
Q. Would he stop when you tried to stop him.
A. No.
Q. Did he touch you in a bad way?
A. Yes.
. . .
Q. What did he say when you tried to grab [L.] away from him?
A. “Stop.”
Q. Did he grab you then?
A. Yes.
. . .
Q. How did it feel when Uncle David was touching you?
A. Nasty.
Q. Did you cry?
A. Yes.
Q. Did it hurt?
A. Yes.
. . .
Q. Were there other times that Uncle David hurt you that way?
A. Yes.
Q. And when he did, was [L.] there with you?
A. Yes.
Q. And did you see Uncle David also hurt [L.] that way?
A. Yes.
Q. When Uncle David - -
[DEFENSE COUNSEL]: Judge, I’m going to object to anything about [L.] because this is about [J.]. Anything about [L.] would be extraneous.
[PROSECUTOR]: Absolutely untrue, Your Honor. This is all contextual, and I’ve got a stack of cases for you if we need to have a hearing. It’s all contextual. They were together every time.
THE COURT: Overruled.
. . .
Q. . . . Did you ever see him do that to [L.]?
[DEFENSE COUNSEL]: Judge, I would object that that would be an extraneous offense not relevant to this particular case.
[PROSECUTOR]: Again, Your Honor, it’s all contextual.
. . .
THE COURT: . . . The objection is overruled.
L., who was six at the time of trial, testified that she saw Sinclair without clothes on, that he “goosed” her without her clothes on and it hurt, and that he did the same thing to J. L. partially explained that “goosing” involved Sinclair taking his clothes off and putting his “middle part” in J. and “humping” her. Three men who were in jail with Sinclair testified that he admitted to sexually assaulting J. One testified generally that Sinclair told him what he had done with L. and later, without objection, that Sinclair said he had used his fingers on L. All three gave general testimony without objection indicating that Sinclair admitted having sexually assaulted both girls.
Sinclair’s issue alleges that the trial court abused its discretion in admitting evidence relating to Sinclair’s alleged sexual assault of L. The State argues that Sinclair has not preserved this issue for appeal because his trial counsel did not timely object.
To preserve a complaint for appellate review, the complaining party must make a timely and specific objection. Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Generally, a party must object each time that allegedly inadmissible evidence is offered or obtain a running objection. Valle, 109 S.W.3d at 509; Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). An objection should be made as soon as the ground for objection becomes apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1985). “It is fundamental that a specific objection to inadmissible evidence be urged at the first opportunity in order to be considered timely. The proper objection must be made as soon as the grounds of objection become apparent.” Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex. Crim. App. 2000) (citations omitted). Also, any error in admitting evidence is cured where the same evidence comes in elsewhere without objection. See Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994).
In this case, the prosecutor’s opening statement indicated that Sinclair had sexually assaulted both girls. J. testified several times without objection that Sinclair had touched and hurt L. and that he had hurt L. the same way. Sinclair’s trial counsel’s objection was not timely. Moreover, the same or similar evidence came in elsewhere without objection through L. and the three inmates. Sinclair’s complaint on the alleged extraneous-offense evidence was not preserved for appellate review.
We overrule Sinclair’s sole issue and affirm the trial court’s judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed May 17, 2006
Do not publish
[CRPM]