                                    NO. 07-06-0102-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                FEBRUARY 22, 2007
                          ______________________________

                         WILLIE RODRIGUEZ, JR., APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-409010; HONORABLE JIM BOB DARNELL, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant, Willie Rodriguez, seeks an appeal from two counts of indecency with a

child. Appellant contends that the trial court erred in allowing the cases to be submitted

to the jury without requiring the State to elect which incident or incidents would be evidence

of the two alleged criminal offenses. We affirm.
                                       Background


       Appellant and his wife lived with their three children and appellant’s step

granddaughter, Jessica Flores. When Flores was between nine and eleven years old,

appellant made sexual advances toward her on several occasions. These incidents

included: (1) appellant partially removing Flores’s bathing suit and rubbing her vagina with

his hand; (2) appellant coaxing Flores with soft drinks to come into his room and then

pushing her onto the bed and rubbing her breasts and vagina; and (3) while returning to

Lubbock from a car trip, appellant fondling Flores’s breasts.


       Several years later, when Flores was 17 years old, Flores made her mother aware

of appellant’s earlier actions and, consequently, went to the police station to file a report

detailing the inappropriate touching. Appellant was arrested and charged by a single

indictment with two counts of indecency with a child, one for touching Flores’s breasts and

another count for touching Flores’s genitals.


       At trial, the State introduced evidence of the three aforementioned incidents as well

as two extraneous incidents that occurred outside Lubbock County. After the State and

appellant rested, the trial court discussed the jury charge with the attorneys. During this

discussion, appellant’s attorney stated, “I think they have to make an election as to which

one they’re going on.” Without acknowledging the statement, the trial court continued its

discussion of the jury charge concluding with request for any objections to the jury charge.

After the State requested one additional jury instruction which was granted by the trial

court, both sides announced that they had no objections to the jury charge. The case then


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went to the jury with both sides making closing statements. During the State’s closing

statement, the prosecutor made the statement that “some people require 12 people to

force feed them responsibility. Some people require that.” Appellant made no objection.

Appellant was found guilty and sentenced to 20 years confinement in the Institutional

Division of the Texas Department of Criminal Justice.


       On appeal, appellant contends that the trial court erred in refusing appellant’s

request to have the State elect which incident or incidents it was relying upon as evidence

of the two counts of indecency with a child.1 We affirm.


       A party is required to preserve a complaint for appellate review by (1) making a

timely request, objection, or motion; (2) stating the grounds with sufficient specificity to

make the trial court aware of the complaint; and (3) obtaining from the trial court a ruling,

either expressly or implicitly, or a refusal by the trial court to rule on the request, objection

or motion. See TEX . R. APP. P. 33.1. In this case, appellant’s statement of ”I think they

have to make an election as to which one they’re going on” is not a request, objection or

motion. Further, the State correctly points out that, even if the statement can be construed

as a request, the statement is ambiguous in that, since the indictment included two

separate counts, appellant’s statement could have referred to an election between the two

counts as easily as a reference to an election between incidents. Finally, assuming



       1
           Appellant also alleged that the State improperly commented on appellant’s
exercise of his right to a jury trial during its closing argument. However, appellant concedes
that trial counsel did not make an objection to the State’s comment. Hence, we find that
the issue has not been preserved. See TEX . R. APP. P. 33.1; see also Cockrell v. State,
933 S.W.2d 73, 89 (Tex.Crim.App. 1996).

                                               3
arguendo that appellant’s statement could be considered an objection with sufficient

specificity to notify the trial court of appellant’s complaint, appellant did not obtain a ruling

either express or implicit. See Wilson v. State, 7 S.W.3d 136, 144 (Tex.Crim.App. 1999).

A review of the circumstances surrounding appellant’s statement of “I think they have to

make an election” fails to provide any evidence that would support an implicit ruling. See

Sauceda v. State, 129 S.W.3d 116, 124 n.6 (Tex.Crim.App. 2004) (an implied ruling can

be inferred from a trial court’s actions). Neither the trial court nor the State acknowledged

appellant’s statement nor provided any discussion from which we can infer any ruling or

action by the trial court. Hence, we conclude that appellant did not properly preserve his

complaint, and thus, presents nothing for review.


       For the foregoing reasons, we affirm the trial court’s judgment.




                                            Mackey K. Hancock
                                                Justice




Do not publish.




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