                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00532-CR

                                       Edward Lee CARTER,
                                            Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR1674
                          The Honorable Angus McGinty, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: November 12, 2014

AFFIRMED

           Edward Lee Carter was convicted by a jury of two counts of aggravated sexual assault of

a child and three counts of indecency with a child. On appeal, Carter raises two issues asserting

the trial court abused its discretion in admitting expert testimony because: (1) the court applied an

incorrect standard of proof in performing its gatekeeping function; and (2) the State failed to

demonstrate by clear and convincing evidence that the expert’s opinion was sufficiently reliable.

We affirm the trial court’s judgment.
                                                                                       04-13-00532-CR


                                     PRESERVATION OF ERROR

       To preserve a complaint for appellate review, the record must show that a specific and

timely objection was made to the trial judge and that the trial judge ruled on the objection. TEX.

R. APP. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009); Smith v. State,

256 S.W.3d 341, 343 (Tex. App.—San Antonio 2007, no pet.). An appellant who fails to preserve

error regarding the admissibility of evidence waives his complaint on appeal. Amspacher v. State,

311 S.W.3d 564, 572 (Tex. App.—Waco 2009, no pet). To avoid waiving his complaint on appeal,

a party must “let the trial judge know what he wants, why he thinks himself entitled to it” and he

must do so “clearly enough for the [trial] judge to understand him at a time when the trial court is

in proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992). When a hearing is conducted to determine the reliability of an expert’s testimony, an

objection must be raised at the conclusion of the hearing to the reliability of the testimony;

otherwise the claim will be waived. Wilson v. State, 7 S.W.3d 136, 145 (Tex. Crim. App. 1999).

If an appellant’s objection at trial does not comport with the issues raised on appeal, the issues

raised on appeal have not been preserved for appellate review. Penry v. State, 903 S.W.2d 715,729

(Tex. Crim. App. 1995); see Griffin v. State, 181 S.W.3d 818, 822 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d). A reviewing court should not address the merits of a complaint that has

not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

                                            DISCUSSION

       Carter raises two issues on appeal asserting the trial court abused its discretion in admitting

the testimony of an expert witness because the trial court applied an incorrect standard of proof

and the State did not demonstrate with clear and convincing evidence that the expert’s testimony

was sufficiently reliable. Prior to the testimony of the State’s expert, the trial court held a hearing

outside the jury’s presence in order to determine if the expert was qualified to testify regarding
                                                 -2-
                                                                                       04-13-00532-CR


recantations and delays in disclosure. At the end of the hearing, the trial court asked the parties to

present any arguments. When Carter presented his arguments, he did not object to the expert

offering an opinion regarding recantations and delay in disclosures, and he did not object to the

application of an incorrect standard of proof or on the grounds that the expert’s opinion lacked

reliability. Instead, Carter only objected to the expert giving any type of medical opinion based

on the Sexual Assault Nurse Examination (“SANE”), because the SANE did not provide a

sufficient foundation for the expert’s opinion. Accordingly, Carter failed to lodge the objections

to the expert’s testimony that he raises on appeal at the conclusion of the trial court’s hearing. See

Wilson, 7 S.W.3d at 145; see also Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)

(noting a specific objection must be made at the conclusion of the voir dire of an expert witness to

preserve error). Because Carter’s objection to the expert’s testimony at trial does not comport with

the issues raised on appeal, the issues were not preserved and are therefore waived. Penry, 903

S.W.2d at 729.

                                           CONCLUSION

       The judgment of the trial court is affirmed.


                                                   Karen Angelini, Justice

DO NOT PUBLISH




                                                 -3-
