COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00107-CR
NO. 02-12-00108-CR
SHANNON WAYNE ANDREWS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
The State charged Appellant Shannon Wayne Andrews with driving while
intoxicated (DWI) felony repetition after the police arrested him for DWI while
Andrews was on community supervision for a previous DWI conviction. In one
point, Andrews argues that he is entitled to a new trial on punishment because of
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See Tex. R. App. P. 47.4.
comments made by the State during closing arguments at the resulting
punishment hearing held by the trial court relating to the DWI felony repetition
charge and the resulting revocation of his community supervision. We will affirm.
II. BACKGROUND
Andrews pleaded guilty on February 7, 2005, to third-degree felony DWI
following a plea bargain with the State in cause number 0927378D, and the trial
court, per the negotiated agreement, suspended imposition of his ten-year
sentence and placed him on ten years’ community supervision. The community
supervision conditions required Andrews to abstain from alcohol and to not
violate the laws of Texas or any other state. While on community supervision,
Mansfield Police Department Officers arrested Andrews for DWI on January 21,
2011. Consequently, the State filed a petition to revoke his community
supervision in cause number 0927378D, and charged Andrews with DWI felony
repetition in cause number 1230703D. Andrews entered an open plea of ―true‖
regarding certain paragraphs in the State’s motion to revoke his community
supervision. He also entered an open plea of ―guilty‖ to the DWI felony repetition
charge. The trial court ordered a pre-sentence investigation (PSI) report and set
these causes for a punishment hearing. At the punishment hearing, the State
made the following statements in its closing argument:
There’s numerous instances in this PSI report that show[] the
dangerous behavior that he was partaking in, not only in the initial
offense of the DWI but the second one as well. People could’ve
been injured. His driving was dangerous in both instances.
Also . . . the interlock device that was on his car for the period of
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years reported several suspicious alcohol readings that missed
rolling retest. I think there is evidence in this PSI report that would
show that this was not the first time that Mr. Andrews had a drink.
Andrews did not object. The trial judge set punishment at four years’
incarceration in cause number 0927378D, and four years’ incarceration in cause
number 1230703D, with the sentences to run concurrently. This appeal followed.
III. DISCUSSION
In his sole point, Andrews argues that the State’s closing argument was
improper because it injected new facts into the case and invited the trial court to
speculate as to whether he had consumed alcohol on any other occasions
without any evidence to support the argument. The State claims that Andrews
failed to preserve this potential complaint because he did not object to the State’s
statement at the time it was made. We agree with the State.
As a general rule, to preserve a complaint for our review, a party must
have presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling if they are not apparent from the
context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v.
State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). An objection must be
made as soon as the basis for the objection becomes apparent. Tex. R. Evid.
103(a)(1); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (―We
have consistently held that the failure to object in a timely and specific manner
during trial forfeits complaints about the admissibility of evidence.‖). This gives
the trial judge and the opposing party an opportunity to correct the error at a time
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when the judge is in the best position to take testimony, if necessary; consider
counsels’ arguments; and rule on the objection in the context of the present
proceeding. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
Further, the trial court must have ruled on the request, objection, or motion, either
expressly or implicitly, or the complaining party must have objected to the trial
court’s refusal to rule. Tex. R. .App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d
334, 341 (Tex. Crim. App. 2004). A reviewing court should not address the
merits of an issue that has not been preserved for appeal. Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009).
Here, Andrews did not object to the State’s closing argument at the time it
was made and at a time when the trial court could have addressed the argument.
Because he made no objection at the time the complained-of statements were
made, Andrews forfeited any potential error for review. See Parker v. State, No.
02–11–00032–CR, 2011 WL 5984539, at *2 n.4 (Tex. App.—Fort Worth Dec. 1,
2011, no pet.) (mem. op., not designated for publication) (holding that by failing
to object to prosecutor’s closing arguments at the time they were made, appellant
forfeited any potential error for appellate review). We therefore overrule his sole
point.
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IV. CONCLUSION
Having overruled Andrews’s sole point on appeal, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 11, 2013
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