                                NUMBER 13-08-00740-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG
____________________________________________________________

RUDY GARCIA,                                                         APPELLANT,

                                                v.

THE STATE OF TEXAS,                               APPELLEE.
____________________________________________________________

             On Appeal from the 117th District Court
                   of Nueces County, Texas.
____________________________________________________________

                             MEMORANDUM OPINION
                  Before Justices Yañez, Garza, and Benavides
                    Memorandum Opinion by Justice Yañez
      Appellant, Rudy Garcia, was charged with twenty counts of aggravated sexual

assault of a child and two counts of indecency with a child.1 A jury found Garcia not

guilty of seven counts of aggravated sexual assault of a child (counts 1-7), guilty of

      1
          See TEX. PENAL CODE ANN. §§ 21.11, 22.021 (Vernon 2003).
thirteen counts of aggravated sexual assault of a child (counts 8-20), and guilty of both

counts of indecency with a child (counts 21-22). Garcia was sentenced to twenty years‘

confinement for each count of aggravated sexual assault of a child, and ten years‘

probation for each count of indecency with a child. 2 By ten issues, Garcia claims that

the trial court erroneously overruled his objections to certain evidence (issues 1, 3, 4, 5,

7, 8, and in a sub-issue to issue 9), the trial court improperly limited his cross-

examination of certain witnesses (issues 2, 6, and 9), and the State improperly

commented on the defendant‘s right to remain silent during its closing argument (issue

10).3 We affirm.4

                               I. ADMISSION AND EXCLUSION OF EVIDENCE

        By his first, third, fourth, fifth, seventh, eighth, and ninth issues, Garcia complains

that the trial court erred by overruling several of his objections to certain evidence.

Specifically, Garcia contends that the trial court erred by overruling his objection: (1) to

Detective Michael Ilse‘s testimony that ―boys do not readily share information about

sexual assault‖; (2) that the prosecutor had ―elicited responses from [Detective Ilse]

regarding the defendant‘s right to remain silent‖; (3) to the admission of testimonial

hearsay that allegedly violated his sixth amendment right of confrontation; (4) to

testimony from Jeff Carlisle; (4) to the admission of the children victims‘ videotaped



        2
          The trial court ordered counts 8-15 to run concurrently and counts 16-20 to run consecutively to
counts 8-15. The trial court ordered the punishment for counts 21-22 to run concurrently with that impose
for `counts 16-20.
        3
            The State has not filed a brief in this case.
        4
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court‘s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.


                                                            2
statements into evidence; and (5) to Ricardo Jimenez‘s testimony ―that a child will have

more recollection now than earlier.‖

        A trial court‘s decision to admit or exclude evidence is reviewed under an abuse

of discretion standard.5 The test to determine if the trial court has abused its discretion

is whether the court acted without reference to any guiding rules and principles, or if the

action was arbitrary or unreasonable.6

A.      Objection to Detective Ilse’s Testimony

        By his first issue, Garcia contends, citing only Texas Rule of Evidence 705(a),

that the trial court erroneously allowed Detective Ilse to state his opinion that boys ―do

not readily share information about sexual assault.‖7 Texas Rule of Evidence 705(a)

states, ―The expert may testify in terms of opinion or inference and give the expert's

reasons therefor without prior disclosure of the underlying facts or data, unless the court

requires otherwise. The expert may in any event disclose on direct examination, or be

required to disclose on cross-examination, the underlying facts or data.‖8

        At trial, Garcia objected to Detective Ilse‘s testimony on the basis that it was

speculation and did not object pursuant to rule 705(a). Therefore, because Garcia‘s

complaint on appeal does not comport with his objection at trial, we conclude that he

has not preserved error.9 We overrule Garcia‘s first issue.



        5
            Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006).
        6
            Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993) (en banc).
        7
            See TEX. R. EVID. 705(a).
        8
            Id.
        9
          See TEX. R. APP. P. 33.1 (requiring that a complaint be made to the trial court by a specific,
timely request, objection, or motion in order to preserve error for appellate review unless the specific

                                                      3
B.     Right to Remain Silent

       By his third issue, Garcia contends that the trial court erroneously overruled his

request for mistrial when the State allegedly elicited responses from Detective Ilse

regarding the defendant‘s right to remain silent. Specifically, Garcia complains of the

following:

       [The State]:              And is it typically your practice to try to make contact
                                 with the suspect of an offense?

       [Detective Ilse]:         Yes, ma‘am.

       [The State]:              And were you able to gather any information from him
                                 about this?

       [Detective Ilse]:         No, ma‘am.

       [The State]:              Was he present at the home?

       [Detective Ilse]:         Yes, he was.

       [Defense Counsel]: Your Honor—

       [The State]:              Pass the—

At this point, defense counsel approached the bench and requested a mistrial arguing

that the State‘s questioning had elicited a comment on Garcia‘s right to remain silent.

The trial court denied Garcia‘s request.

       In order to preserve error, the defendant must make a timely objection as soon

as the ground for objection becomes apparent.10 ―If a defendant fails to object until after

an objectionable question has been asked and answered, and he can show no




grounds were apparent from the context); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)
(―[T]he point of error on appeal must comport with the objection made at trial.‖).
       10
            Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (en banc).


                                                    4
legitimate reason to justify the delay, his objection is untimely and error is waived.‖11

Here, Garcia did not object to the objectionable questions or answers, and he has

provided no reason to justify his delay in objecting. Therefore, error, if any, is waived.12

Furthermore, to the extent that Garcia complains of the trial court‘s denial of his motion

for mistrial, he has not provided a clear and concise argument with citation to

appropriate authority.13 Therefore, we conclude that this issue has been inadequately

briefed. Accordingly, we overrule Garcia‘s third issue.

C.      Exclusion of Evidence

        By his fourth issue, Garcia contends that the trial court erroneously determined

that he could not, on cross-examination, ask M.G., the mother of the victims, to state the

details of a prior sexual assault she allegedly suffered as a child.

        Relevant evidence is evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would have been without the evidence.14 Generally, relevant evidence

is admissible while irrelevant evidence is inadmissible.15 Error may not be predicated

upon a ruling that excludes evidence unless a substantial right of the defendant is




        11
             Id.
        12
           See id.; see also Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994) (en banc)
(concluding that by failing to object at trial on basis complained of on appeal, the appellant waived his
complaint that the trial court improperly allowed testimony of his post-arrest silence); Smith v. State, 721
S.W.2d 844, 855 (Tex. Crim. App. 1986) (finding that the error, if any, in allowing questions concerning
appellant‘s silence after his arrest was not preserved because appellant failed to object at trial).
        13
             TEX. R. APP. P. 38.1(i).
        14
             TEX. R. EVID. 401.
        15
             Id. R. 402.


                                                     5
affected and ―the substance of the evidence was made known to the court by offer, or

was apparent from the context which questions were asked.‖16

       On direct-examination, M.G. testified that she had been the victim of sexual

abuse. Outside the presence of the jury, defense counsel requested that he be allowed

to ask M.G. to describe in detail what happened to her when she was allegedly sexually

abused.       Defense counsel argued that the details of M.G.‘s experience were ―very

similar to this allegation against . . . [Garcia], and that the kids [B.A. and M.A.] may have

picked up the concept of them being assaulted through the mother and that‘s—that‘s

essential to our case.‖ Defense counsel then argued that he ―believe[d] that there‘s a

boy and girl involved, herself [M.G.] and her cousin, or some other relative. There‘s a

boy and girl involved. There‘s threats against her to testify. There‘s an ex—it‘s a

stepfather. A stepfather, threats, boy and girl. It‘s—it‘s—it‘s almost—it‘s almost like a

carbon copy of this case.‖ The State disagreed, stating:

       Your Honor, if I can give you, with [M.G.] present, she was sexually
       abused by a stepfather. Her brother, who is much younger than her, had
       been placed out—she had been placed with her grandmother after this
       abuse. Her brother, her younger brother, who was then living with mother
       and a new boyfriend was sexually abused by the boyfriend‘s cousin, not
       by the stepfather, not at the same time. She wasn‘t even in the home
       anymore. She was already having her kids and being with the victim‘s
       father. There are no similarities to the type of abuse, to the situation. It
       wasn‘t the same step dad who abused a little boy and a little girl. . . .

The trial court denied Garcia‘s request, concluding that the details of M.G.‘s sexual

abuse were not relevant because B.A. testified that M.G. did not share any details of the

incident with her.17 The trial court stated that if Garcia established a nexus between


       16
            Id. R.103(a)(2).
       17
         B.A. testified that she did not ―really know anything‖ about what happened to M.G. and that
M.G. had not told her the specifics of what happened to her. On cross-examination, B.A. stated that

                                                 6
M.G.‘s sexual abuse and the offense that Garcia allegedly committed, then it would

allow Garcia to question M.G. about the details. The trial court stated that Garcia could

ask M.G. and the children if M.G. had shared the details of the prior sexual assault with

the children. The trial court implied that if Garcia presented evidence that M.G. shared

the details with B.A. or M.A., then the proper nexus would be established and Garcia

would be allowed to question M.G. about the details of the sexual abuse she allegedly

suffered. Garcia did not ask M.G. if she shared the details of the sexual abuse with B.A.

and M.A.

        Although the testimony may have been relevant to establish that M.G. ―coached‖

the children into accusing Garcia of sexual abuse by telling them the details of her

sexual abuse, the trial court could have reasonably found the evidence to be irrelevant

because there is nothing in the record supporting a conclusion that M.G. actually told

the children any details of the alleged sexual abuse, and both B.A. and M.A.

unequivocally stated that M.G. had never shared any details of that event with them.

Further, the trial court could have concluded that the evidence was inadmissible under

rule 403 because it could have determined that the probative value of the testimony

regarding the details of the sexual abuse M.G. allegedly suffered was substantially

outweighed by the danger of misleading the jury or confusion of the issues.18 The trial

court‘s decision to exclude the details of M.G.‘s alleged sexual abuse was within the




although M.G. informed her that she was sexually assaulted, M.G. did not state any details of the event.
M.A. also testified that although M.G. told him that she had been sexually assaulted when she was a
child, she did not provide any details.
        18
             See id. R. 403.


                                                   7
bounds of reasonable disagreement.19 Therefore, we conclude that the trial court did

not abuse its discretion by excluding the evidence. Accordingly, we overrule Garcia‘s

fourth issue.

D.      Objection to Andelman’s Testimony and Videotaped Statements

        By his fifth issue, Garcia argues that the trial court violated his right to confront

his accuser under Crawford v. Washington20 because the trial court allowed Elizabeth

Andelman, a sexual assault nurse examiner, to state what B.A. and M.A. told her during

their sexual assault examinations. Specifically, Andelman read a portion of the medical

forensic examination records to the jury.21 By his eighth issue, Garcia contends that,

under Crawford, ―the introduction of the children‘s videotaped statements is a clear

violation of the law and is error.‖

        In Crawford, the declarant of an out-of-court statement, who was the defendant‘s

wife, did not testify at the defendant‘s trial after asserting the spousal privilege.22 The

trial court allowed the State to play the defendant‘s wife‘s tape-recorded statement to
        19
         Shuffield, 189 S.W.3d at 793 (―If the trial court's decision was within the bounds of reasonable
disagreement, the appellate court should not disturb its ruling.‖).
        20
             See 541 U.S. 36 (2004).
        21
             When asked to ―give the [medical] history that the patient [B.A.] gave [her],‖ Andelman stated:

        Patient states: My step dad Rudy Garcia used to take me into the room. He said your
        mom told me to wipe you because of your underpants. He touched me here. He stuck
        his thing inside me here. Patient indicates female sexual organ by pointing and my butt.
        He told me not to tell my mom or anyone else. . . .

When asked ―and what [medical] history did [M.A.] give [you],‖ Andelman responded:

        Time of incident. When I was six, seven or eight, patient states: My step dad used to
        force me to bend over. He would put his hand on my private. Patient indicates penis by
        pointing. He put his front in my bottom. He told me that if I told he would kill me. It
        happened more than once. When he would get out of the shower he would tell me or my
        sister [B.A.] to go get a towel and he would keep us in there for a long time. . . .

        22
             Id. at 40.


                                                       8
the police describing the crime, even though the defendant had no opportunity for cross-

examination.23 The United States Supreme Court concluded that the trial court had

improperly allowed the admission of the wife‘s testimonial statement against the

defendant.24          The Supreme Court held that admission of a witness‘s testimonial

statement is a violation of the defendant‘s Sixth Amendment right of confrontation when

the declarant is unavailable to testify and the defendant had no prior opportunity to

cross-examine the declarant.25             However, the Supreme Court stated that ―[w]hen a

declarant appears for cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements.‖26

        In this case, we do not need to determine whether B.A.‘s and M.A.‘s statements

were testimonial because both B.A. and M.A. testified at Garcia‘s trial and appeared for

cross-examination.           Therefore, even assuming B.A.‘s and M.A.‘s statements to

Andelman and in the video were testimonial in nature, the Confrontation Clause places

no constraints on the use of those prior statements.27 We overrule Garcia‘s fifth and

eighth issues.28

        23
             Id. at 38.
        24
             Id. at 68.
        25
             Id.; Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.–Corpus Christi 2008, pet. ref'd).
        26
          Crawford, 541 U.S. at 59 n.9 (―The [Confrontation] Clause does not bar admission of a
statement so long as the declarant is present at trial to defend or explain it.‖).
        27
           See id.; Gomez v. State, 183 S.W.3d 86, 90-91 (Tex. App.–Tyler 2005, no pet.) (concluding
that Crawford was inapplicable because the declarant testified at trial and the defendant had the
opportunity to cross-examine her); see also Cornet v. State, No. 08-09-00054-CR, 2010 Tex. App. LEXIS
4515, at *5 (Tex. App.–El Paso June 16, 2010, no pet.) (mem. op., not designated for publication)
(―Accordingly, because K.M. testified at trial and was available for cross-examination, the trial court did
not violate Appellant's confrontation rights by admitting the outcry witness's testimony, the videotape
interview, or the stick drawing.‖); Veseley v. State, No. 12-06-00131-CR, 2007 Tex. App. LEXIS 5611, at
*9-10 (Tex. App.–Tyler July 18, 2007, no pet.) (mem. op., not designated for publication) (finding that the
appellant‘s objection pursuant to Crawford was without merit because the declarant testified at the trial
and was available for cross-examination); Moreno v. State, Nos. 13-03-00649-CR, 13-03-00650-CR,

                                                      9
E.      Objection to Jeff Carlisle’s Testimony29

        By his seventh issue, appellant complains that the trial court erroneously

overruled his objection to Carlisle‘s testimony that in a CPS case, the department‘s

findings must be supported by a preponderance of the evidence.                      In a multifarious

argument, Garcia alleges that admission of this testimony was improper because it

invaded the province of the jury, it was impermissible hearsay, it constituted an

impermissible comment on Garcia‘s right to remain silent, and it violated due process.

We will address the issue as we understand it.

        Garcia apparently asserts that, because CPS uses a lower standard to determine

whether there has been abuse, Carlisle should not have been allowed to state that, in

this case, CPS had determined there was a ―reason to believe‖ that sexual abuse had

occurred.

        Garcia complains of the following exchange:

        [The State]:                So in making a ruling or a determination with regards
                                    to this sexual abuse case, what did the department
                                    rule?

        [Carlisle]:                 Reason to believe.

        [The State]:                And explain what that means to the jury, please.

        [Carlisle]:                 In our cases, it‘s—we‘re civil so all we need is a
                                    preponderance of the evidence versus . . .

2005 Tex. App. LEXIS 4091, at *2 (Tex. App.–Corpus Christi May 26, 2005, pet. ref'd) (mem. op., not
designated for publication) (holding Crawford inapplicable to admission of outcry statements and forensic
videotape interview when victim testified at trial).
        28
           By a sub-issue to his eighth issue, Garcia contends that the trial court should have excluded
the videotaped statements because they were inadmissible pursuant to article 38.07 of the code of
criminal procedure. Because Garcia has not provided a clear and concise argument with citation to
appropriate authority, we conclude that he has waived this issue. See TEX. R. APP. P. 38.1(i).
        29
             Carlisle testified that he is an investigator with CPS.


                                                        10
        [Defense Counsel]: Your Honor, I would object to this line of questioning.
                           She‘s asking him to invade the province of the jury
                           and make a determination in this case.

        [The State]:            Your Honor, I‘m asking for CPS‘s ruling with regards
                                to this case and he is . . .

        [Trial Court]:          You may speak to CPS‘s ruling and any guidelines or
                                things of that nature, but nothing else.

        [Carlisle]:             Okay.

        [Trial Court]:          Okay.

        [Carlisle]:             Reason to believe it‘s preponderance of the evidence
                                that would indicate that abuse did occur.

        [The State]:            And what do you use to base that reason to believe
                                finding on?

        [Carlisle]:             Normally, it‘s physical evidence, the outcry of the
                                children makes [sic], interviews with witnesses or
                                other family members who know the families or the
                                victims.

        [The State]:            So in collective gathering information and
                                investigating this particular situation, your ruling was
                                reason to believe that this had occurred; is that
                                correct?

        [Carlisle]:             Correct.

Garcia did not object.          When the same testimony is admitted without objection

elsewhere during the trial, the defendant waives any complaint he may have had

regarding the admissibility of the testimony.30 Therefore, to the extent that Garcia


        30
           Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (―[T]o preserve error in admitting
evidence, a party must make a proper objection and get a ruling on that objection. In addition, a party
must object each time the inadmissible evidence is offered or obtain a running objection. An error [if any]
in the admission of evidence is cured where the same evidence comes in elsewhere without objection.‖)
(citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (en banc) (―Our rule . . . is that
overruling an objection to evidence will not result in reversal when other such evidence was received
without objection, either before or after the complained-of ruling.")); Ethington v. State, 819 S.W.2d 854,
858 (Tex. Crim. App. 1991) ("[I]t is well settled that an error in admission of evidence is cured where the

                                                   11
complains on appeal that the trial court erred in admitting Carlisle‘s testimony that CPS

found a ―reason to believe‖ there was sexual abuse in this case, we conclude he waived

any error because he failed to object every time the same or like evidence was

offered.31

       Furthermore, at trial, Garcia only objected to Carlisle‘s testimony on the basis

that it invaded the province of the jury—he did not object on the basis that it was

impermissible hearsay, constituted an impermissible comment on Garcia‘s right to

remain silent, or violated due process. Therefore, because these complaints do not

comport with Garcia‘s objection at trial, they have not been preserved for our review. 32

We overrule Garcia‘s seventh issue.

F.     Objection to Ricardo Jimenez’s Testimony

       By a sub-issue to his ninth issue, Garcia, citing rule 705(a), argues only that

       [t]he [trial] Court allowed the State to ask questions concerning whether a
       child will have more recollection now rather than earlier without first
       qualifying the expert. No supporting data was offered, no instances of
       experience were garnered from the witness and the testimony was
       completely speculatory.[33]




same evidence comes in elsewhere without objection; defense counsel must object every time allegedly
inadmissible evidence is offered."); see also Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.
1999) (concluding that the appellant waived any complaint to the trial court's alleged improper remarks
because he did not renew his objection when the trial court repeated the complained of remarks virtually
verbatim).
       31
            See Lane, 151 S.W.3d at 193; Ethington, 819 S.W.2d at 858.
       32
            Wilson, 71 S.W.3d at 349.
       33
            Internal citations to the record omitted.


                                                        12
Garcia has not provided a clear and concise argument with citation to appropriate

authority supporting his contention; therefore, Garcia has waived this issue.34          We

overrule Garcia‘s sub-issue to his ninth issue.

                                       II.     CROSS-EXAMINATION

       By his second, sixth, and ninth issues, Garcia contends that the trial court

violated his right to due process of law by abrogating his right to cross-examine the

witnesses.

       In his second issue, Garcia argues that the trial court refused to allow him ―to

properly cross[-]examine Detective Ilse in regards of the word ‗rape.‘‖ Garcia complains

of the following exchange:

       [Defense Counsel]: There was another thing you testified to. You said
                          that the children used the word rape. You said that
                          they were raped—

       [Detective Ilse]:           Yes, sir.

       [Defense Counsel]: —by Rudy.

       [The State]:                Your Honor, I would object.

       [Trial Court]:              All right. You—Mr.—

       [Defense Counsel]: I‘m asking him about his experience.

       [Trial Court]:              I know, but nobody has said adult words, and you as
                                   the attorney get to ask questions, but you cannot
                                   bring things before the witness that has not been
                                   brought out in testimony.[35]

       [Defense Counsel]: Yes, okay.



       34
            TEX. R. APP. P. 38.1(i).
       35
            Emphasis added.


                                                   13
However, Garcia‘s defense counsel then asked: ―Officer, in your experience, is the

word ‗rape‘ to describe a sexual assault, is that an adult word or a child word?‖

Detective Ilse responded, ―It—it could be—it‘s mostly an adult word, that‘s correct, yes.

It‘s a common word.‖ Defense counsel then asked Detective Ilse six more questions

concerning a child‘s use of the ―adult word‖ rape and whether it raises a ―red flag‖ that

an adult may have ―planted‖ the idea of rape in the child‘s mind. Detective Ilse stated

that he is not surprised when a child uses the word ―rape,‖ that most children in his

investigations use the word ―touched,‖ it depends on the child‘s background and history

whether a child will use the word ―rape‖ when making an outcry, and generally it does

raise a ―red flag‖ that an adult may have influenced a child to make the outcry when the

child uses the word ―rape.‖ The State did not object to this testimony.

      Based on our review of the record, we conclude that Garcia‘s claim that the trial

court refused to allow him ―to properly cross[-]examine Detective Ilse in regards of the

word ‗rape‘‖ is without merit.    Although the trial court sustained the State‘s initial

objection, it subsequently allowed Garcia to ask Detective Ilse several questions about

the children‘s use of the word ―rape.‖ Therefore, we overrule Garcia‘s second issue.

      By his sixth issue, Garcia contends that the trial court erroneously limited his

cross-examination of M.A.        Without specifically identifying which of the State‘s

objections the trial court improperly sustained, Garcia argues that ―over the entire

testimony of the witness, the [trial court] sustained every objection by the State,

chastised the Defense, and refused to allow counsel to elicit responses to his questions,

thus taking credibility away from the Defense and not allowing the Defense to effectively

cross[-]examine the witness.‖ Garcia does not provide a clear and concise argument



                                           14
explaining which of the State‘s objections the trial court should have overruled or why

the trial court erred in its rulings. Therefore, we conclude that Garcia has waived his

sixth issue, and we overrule it.36

         By his ninth issue, Garcia contends that the trial court ―refused to allow the

defense to fully cross-examine the witness,‖ Ricardo Jimenez. Garcia complains that

the trial court ―allowed the State to elicit hearsay statements from [Jimenez] concerning

statements that were made to him but did not allow hearsay statements to be cross-

examined by the Defense.‖ We construe this as a complaint that the trial court allowed

impermissible hearsay; however, Garcia cites a portion of the reporter‘s record where

he objected to the State‘s question on the basis that it ―call[ed] for speculation.‖ Garcia

did not object to the State‘s question on the basis that it was an attempt to elicit

hearsay. Garcia‘s objection at trial does not comport with his argument on appeal.37

Therefore, he has not preserved error for our review. 38 We overrule Garcia‘s ninth

issue.

                                          III.   CLOSING ARGUMENT

         By his tenth issue, Garcia contends that the State made an improper closing

argument that infringed on his right to remain silent. At trial, Garcia objected to the

complained-of comments on the basis that they shifted the burden of proof; Garcia did

not object on the basis that in its closing argument, the State commented on his right

not to testify. Therefore, to the extent that Garcia complains on appeal that the State


         36
              TEX. R. APP. P. 38.1(i).
         37
              Wilson, 71 S.W.3d at 349.
         38
              Id.


                                                     15
commented on his right to remain silent, Garcia has not preserved error. 39 To the

extent that Garcia asserts that the State attempted to shift the burden of proof, we

conclude that he has waived this issue because he has not provided a clear and

concise argument with citation to appropriate authority. 40 We overrule Garcia‘s tenth

issue.

                                          IV.     CONCLUSION

         Having overruled Garcia‘s ten issues, we affirm the trial court‘s judgment.




Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
30th day of November, 2010.




         39
           See Freeman v. State, No. 01-05-01181-CR, 2007 Tex. App. LEXIS 20, at *2 (Tex. App.–
Houston [1st Dist.] Jan. 4, 2007, pet. ref'd) (mem. op., not designated for publication) ("An objection that
the State's argument shifts the burden of proof does not comport with an appellate challenge that the
State's argument commented on a defendant's failure to testify.") (citing Paster v. State, 701 S.W.2d 843,
849 (Tex. Crim. App. 1985); McLendon v. State, 167 S.W.3d 503, 510 (Tex. App.–Houston [14th Dist.]
2005, no pet.)).
         40
              TEX. R. APP. P. 38.1(i).


                                                    16
