                         NUMBER 13-12-00588-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CHRISTOPHER PETE CORTEZ,                                                  Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Rodriguez
      Appellant Christopher Pete Cortez was indicted for one count of engaging in

organized criminal activity and one count of possessing with intent to deliver more than

400 grams of cocaine. See TEX. PENAL CODE ANN. § 71.02(a)(5) (West Supp. 2011);

TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (West 2010). Cortez pleaded guilty to the

drug charge, and the State abandoned the engaging in organized criminal activity charge.
No plea agreement was reached as to punishment, so a contested sentencing hearing

was held. Following the hearing, the trial court imposed a twenty-five year sentence.

By a single issue, Cortez contends that the trial court abused its discretion in admitting

speculative testimony involving his daughters, which he claims was not relevant to the

offense charged. We affirm.

                                         I.      BACKGROUND1

        At the sentencing hearing, Cortez elected to testify on his own behalf. The State

elicited the following testimony, which Cortez now challenges on appeal:

        Q. [The State]           And—but you didn't just involve yourself[,] you involved
                                 your two daughters, right?

        A. [Cortez]              Yes, ma'am.

        Q.                       And you agree with me you placed your two
                                 daughters—who were completely innocent in this
                                 whole situation—in a very dangerous, precarious
                                 situation?

        A.                       Yes, ma'am.

        Q.                       Okay. Because—and that's because you could have
                                 been robbed by drug dealers, right?

        A.                       Yes, ma'am.

        Q.                       Okay.

                [Defense Counsel]: Objection to speculation, your Honor.

                THE COURT:               Overruled.

        Q.                       You could have become embroiled in some sort of
                                 situation with police that endangered your daughters,
                                 right?
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          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.

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       A.                   Yes, ma'am.

       Q.                   If—when Mr. Ortiz was pulled over by the police,
                            correct?

       A.                   Yes, ma'am.

       Q.                   Okay. So he could have not stopped and ran from the
                            police, right?

       A.                   Yes, ma'am.

       Q.                   Okay. And that could have placed your daughters in
                            danger, right?

       A.                   Yes, ma'am.

       Q.                   But you chose for—how much did you get?

       A.                   A $1,000 dollars, 500.

       Q.                   Okay. For $1500 you chose to break the law and put
                            your two daughters in serious harm's way, right?

       A.                   Yes, ma'am.

                               II.          STANDARD OF REVIEW

       We review a trial court's decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011).

The trial court does not abuse its discretion unless its determination lies outside the zone

of reasonable disagreement. Id. If the trial court's decision is correct on any theory of

law applicable to the case, we will uphold the decision. De La Paz v. State, 279 S.W.3d

336, 344 (Tex. Crim. App. 2009).

                                     III.    APPLICABLE LAW

       "A timely and specific objection is required to preserve error for appeal." Luna v.

State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A).
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"An objection is timely if it is made as soon as the ground for the objection becomes

apparent, i.e., as soon as the defense knows or should know that an error has occurred."

Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref'd) (citing Neal v.

State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)). "If a party fails to object until after

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

reason to justify the delay, his objection is untimely and error is waived." Id. (citing

Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc)). There are,

however, the following two exceptions to the proposition of law that a party must object

each time he thinks inadmissible evidence is being offered: (1) when the party has

secured a running objection on the issue he deems objectionable; or (2) when the

defense counsel lodges a valid objection to all the testimony he deems objectionable on a

given subject outside of the presence of the jury. Ethington v. State, 819 S.W.2d 854,

858–59 (Tex. Crim. App. 1991).

      Furthermore, "'[any] error in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.'" Lane v. State, 151 S.W.3d 188, 193

(Tex. Crim. App. 2004) (citation omitted); see Valle v. State, 109 S.W.3d 500, 509 (Tex.

Crim. App. 2003) (same, and "[i]n addition, a party must object each time the inadmissible

evidence is offered or obtain a running objection"); see also Ortega v. State, No.

13-04-393-CR, 2005 Tex. App. LEXIS 8406, at *4 (Tex. App.—Corpus Christi Oct. 13,

2005, no pet.) (mem. op., not designated for publication) (“When substantially similar

evidence is subsequently admitted without objection, an appellate complaint is

forfeited.”). Finally, appellate arguments must correspond with the objection made at

trial. Gallo v. State 239 S.W.3d 757, 768 (Tex. Crim. App. 2007).

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                                   IV.    DISCUSSION

A.     Speculation

       In the present case, after agreeing that he placed his two daughters in a very

dangerous situation, Cortez did not object when the State asked if that was because he

“could have been robbed by drug dealers.” The State’s question clearly called for a

speculative answer.    Instead, Cortez answered, “Yes, ma'am,” and only after he

answered did his counsel object on the basis of speculation. This objection was not

timely. See TEX. R. APP. P. 33.1(a)(1)(A); Luna, 268 S.W.3d at 604; Grant, 345 S.W.3d

at 512. Nothing in the record shows a legitimate reason to justify this delay. See

Dinkins, 894 S.W.2d at 355; Grant, 345 S.W.3d at 512. In addition, Cortez did not

request a running objection or otherwise raise any objection outside the presence of the

jury regarding his placing his daughters in danger.      See Ethington, 819 S.W.2d at

858–59. Accordingly, on this basis, we conclude error was not preserved.

       In addition, immediately following the complained-of question, Cortez’s counsel

allowed the State to ask questions that elicited answers regarding whether Cortez placed

his daughters in a potentially dangerous situation.      Cortez answered all questions

without objection. Thus, any error in the admission of the first question and answer was

cured because the same evidence came in elsewhere without objection. Lane, 151

S.W.3d at 193; see Valle, 109 S.W.3d at 509; see also Ortega, 2005 Tex. App. LEXIS

8406, at *4.

B.     Relevance

       On appeal, Cortez now argues that the trial court also erred in admitting testimony

involving his daughters because it was not relevant to the offense charged and was more

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prejudicial than probative. See TEX. R. EVID. 402, 403. The State responds that Cortez

is barred from raising these objections on appeal because he did not raise them in the trial

court. We agree.

       Cortez objected at trial only on the basis of speculation. He did not object on

relevance or prejudice grounds.          Therefore, Cortez’s appellate arguments do not

correspond with his objection at trial, and he has waived any complaint based on these

grounds for appeal. See Gallo, 239 S.W.3d at 768.

C.     Summary

       Because Cortez did not timely make his “speculative” objection and the same

evidence came in later without objection, error, if any, was not preserved or was cured.

Furthermore, his relevance argument was waived. We therefore conclude that the trial

court did not abuse its discretion when it admitted the complained-of evidence. See

Martinez, 327 S.W.3d at 736; see also De La Paz, 279 S.W.3d at 344. Accordingly, we

overrule Cortez’s sole issue.

                                    V.      CONCLUSION

       We affirm the judgment of the trial court.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of April, 2013.




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