                                            NO. 07-02-0041-CR

                                     IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                                AT AMARILLO

                                                   PANEL E

                                           FEBRUARY 21, 2003

                                 ______________________________


                                  RANDY RODRIGUEZ, APPELLANT

                                                        V.

                                 THE STATE OF TEXAS, APPELLEE


                              _________________________________

               FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2000-435,018; HONORABLE JIM BOB DARNELL, JUDGE

                                _______________________________

Before JOHNSON, C.J., and REAVIS, J., and BOYD, S.J.1


                                       MEMORANDUM OPINION2


      Upon a plea of not guilty, appellant Randy Rodriguez was convicted by a jury of

aggravated sexual assault and punishment was assessed at 99 years confinement and a


      1
          Joh n T . Boyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent.

      2
          TEX . R. APP. P. 47.1.
$10,000 fine. By one point of error, appellant contends the trial court erred in overruling

his objection to allegedly improper jury arguments during closing arguments of the

guilt/innocence phase of trial. Based upon the rational expressed herein, we affirm.


       Because appellant does not challenge the sufficiency of the evidence, only a brief

recitation of the facts is necessary. On the morning of October 19, 2000, appellant

abducted the victim and her three year old daughter from the parking garage of Covenant

Hospital in Lubbock. Appellant physically assaulted the victim by choking her and ordered

her to drive to her home. In fear for her safety, she complied. Upon arrival at the victim’s

home, appellant attempted sexual intercourse but was unable to sustain an erection, and

therefore ordered the victim to perform oral sex.           After another failed attempt at

intercourse, appellant struck the victim’s face. He then forced her to load valuables from

the home into her vehicle, and ordered her to drive him, again with her daughter in the

vehicle, to her bank, where she was forced under threat of death to withdraw all the money

from her account. Appellant then forced the victim to drive them back to the hospital,

where he transferred the valuables from her vehicle to his, and threatened her and her

family if she reported the incident. However, the attack was reported and the police

apprehended appellant on the same day. Appellant gave a written statement confessing

the crime and the victim identified him at trial.


       By his only point of error, appellant contends the trial court erred in failing to sustain

his objection to alleged improper jury argument by the State during the guilt innocence


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phase of the trial. In response, the State contends (1) the alleged error was not preserved;

(2) the argument which prompted the objection was not improper; and (3) error, if any, was

harmless.


       Because we agree with the State that appellant’s sole issue presents nothing for

review. Texas Rule of Appellate Procedure 33.1 entitled “Preservation of Appellate

Complaints,” provides in part that a timely request, objection, or motion must be made and

ruled upon in the trial court in order to preserve a complaint for review on appeal. In Hull

v. State, 67 S.W.3d 215, 217 (Tex.Cr.App. 2002) the Court held:


       [t]his rule ensures that trial courts are provided an opportunity to correct their
       own mistakes at the most convenient and appropriate time–when the
       mistakes are alleged to have been made.


In addition, Texas Rule of Appellate Procedure 38.1(h) requires that an appellant’s brief

contain a clear and concise argument for the contentions “with appropriate citations to

authorities and to the record.” In Harris v. State, 827 S.W.2d 949, 958 (Tex.Cr.App. 1992),

cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992), because appellant did

not cite any place in the record where the arguments were made in the trial court, the Court

held that the complaint was not preserved for review. Here also, appellant’s brief does not

make any reference or citation to the record where any objections were presented to the

trial court as required by Hull and Harris.




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       We have not overlooked appellant’s argument that the State’s comments during

closing argument were so fundamentally improper that his conviction must be reversed

even though the error was not preserved by objection in the trial court. However, because

remarks that fall outside the permissible bounds of jury argument do not constitute

constitutional errors, the above rules regarding preservation of error are applicable. See

Martinez v. State, 17 S.W.3d 677, 692 (Tex.Cr.App. 2000) (en banc); see also Fant-

Caughman v. State, 61 S.W.3d 25, 30 (Tex.App.–Amarillo 2001, pet. ref’d). Therefore,

appellant’s sole point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                           Don H. Reavis
                                             Justice

Do not publish.




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