                                    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.



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      Accordingly, the judgment of the trial court is affirmed.



      .                                         Per Curiam



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