
NO. 07-08-0055-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 13, 2008
______________________________

CESAR ANGEL DURAN, 

                                                                                                 Appellant

v.

THE STATE OF TEXAS, 

                                                                                                 Appellee
_________________________________

FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 16917-B; HON. JOHN B. BOARD, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
          Cesar Angel Duran was convicted on four counts of indecency with a child and two
counts of aggravated sexual assault.  He seeks reversal by contending that the trial court
erred in 1) failing to instruct the jury that “it was improper for the Prosecutor to, in closing
argument at the guilt/innocence phase, characterize the Defendant’s non-testimonial
demeanor during the trial in a way that would lead to an inference of guilt,” and 2) failing
to sustain his objection to the State’s reference to his silence during closing argument in
the punishment phase.  We affirm the judgment. 
          Issue 1 - Comment on Demeanor
          With regard to the failure to properly instruct the jury regarding consideration of
appellant’s non-testimonial demeanor, the record illustrates that appellant objected to the
argument, which objection the trial court sustained.  Then, when appellant asked “for an
instruction,” the one given by the court tended to contradict its decision to sustain the
objection.  Yet, appellant did not object to the instruction.  Consequently, his complaint was
waived.  See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that a
litigant must object to preserve the alleged error for review).  At the very least, an objection
not only would have given the trial court opportunity to address the inconsistency but it also
would have helped clarify or explain what it actually intended.  Thus, the issue is waived. 
          Issue 2 - Improper Jury Argument
          Appellant next argues that the trial court erred in “allowing” the State to refer to
appellant’s silence during its closing.  While appellant objected to the utterance, he did not
do so until the State had finished its argument.  Yet, an objection must be asserted
contemporaneously with or as soon as possible after the wrong occurs; if it is not, then the
complaint is waived.  Starks v. State, 252 S.W.3d 704, 706 (Tex. App.–Amarillo 2008, no
pet.); accord, Cunningham v. State, 848 S.W.2d 898, 905 (Tex. App.–Corpus Christi 1993,
pet. ref’d) (stating that an objection made after the argument is untimely).  Because
appellant waited until the end of the State’s argument to voice his objection, he waived the
purported error.  The issue is overruled.
          Accordingly, the judgment of the trial court is affirmed.
           
          .                                                               Per Curiam
 
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