                                   NO. 07-12-0144-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JANUARY 25, 2013


                                    ABRIAN CASAREZ,

                                                                    Appellant
                                              v.

                                 THE STATE OF TEXAS,

                                                                    Appellee
                           _____________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

            NO. 2011-464,873; HONORABLE DRUE FARMER, PRESIDING


                                 Memorandum Opinion


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

       Abrian Casarez challenges his misdemeanor conviction for driving while

intoxicated. His sole issue involves the trial court’s decision to allow the State to proffer

rebuttal evidence.    According to appellant, that decision gave the State an “unfair

advantage,” and “denied . . . [him] his constitutional right to a fair trial, due process of

law and effective assistance of counsel . . .” since the rebuttal testimony was redundant

of prior testimony. We overrule the issue for several reasons.
      First, the grounds for objection uttered at trial must comport to those urged on

appeal. Lucio v. State, 351 S.W.3d 878, 890 (Tex. Crim. App. 2011). And, though

appellant objected to the rebuttal testimony by stating “objection,” “[n]o new evidence

has been brought up” and “[b]olstering [of] the witness,” nowhere did he mention the

constitutional rights to a fair trial, due process, or the effective assistance of counsel.

Thus, the grounds urged before us do not comport with those disclosed at trial and were

not preserved for review.

      Second, appellant testified on his own behalf.         In response to the State’s

evidence that he turned the wrong way on a one-way street and jumped a concrete

median to correct the situation, appellant not only denied that but contended that there

was no such median present.        Instead, what the troopers supposedly saw was a

concrete curb on the other side of the road. The rebuttal testimony addressed that topic

for the most part. The officers, during rebuttal, attested that there was no concrete curb

on the far side of the road, only a concrete median. So, their comments were uttered in

answer to appellant’s description of the scene, a description which had not been

mentioned by anyone before appellant testified. Thus, the rebuttal in question was

proffered to contradict new evidence and the defensive theory offered by appellant and

we cannot say that the trial court erred in admitting it as valid rebuttal testimony. See

Laws v. State, 549 S.W.2d 738, 741 (Tex. Crim. App. 1977) (recognizing that the

prosecutor is entitled to present evidence that tends to refute the defensive theory of the

accused and the evidence introduced in support of it); Jensen v. State, 66 S.W.3d 528,

539 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d) (stating the same).



                                            2
      We overrule appellant’s issue and affirm the judgment.



                                              Brian Quinn
                                              Chief Justice



Do not publish.




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