                         NUMBER 13-11-00361-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CHRISTOPHER CARR,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 130th District Court
                       of Matagorda County, Texas.


                         MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
              Memorandum Opinion by Justice Rose Vela
      A Matagorda County grand jury indicted appellant, Christopher Carr, for nine

counts of sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011(a) (West Supp.

2011). The State abandoned three counts, and a jury convicted him of the remaining six.

After finding appellant had one prior felony conviction, the jury assessed punishment for

each offense at twenty years' imprisonment, plus a $10,000 fine. The court ordered the
concurrent sentences in counts two, five, and eight to run consecutively with the

concurrent sentences in counts one, four, and seven. By five issues, appellant asserts:

(1) he received ineffective assistance of counsel; (2) the prosecutor made improper

remarks during closing argument; (3) the State committed prosecutorial misconduct; and

(4) the trial court improperly stacked his sentences. We affirm.

                                 I. FACTUAL BACKGROUND

       J.H. was fourteen years old when she began a sexual relationship with appellant.

Prior to this relationship, she lived with her mother in Missouri and used the internet "[a]ll

the time." She met appellant on a website called "T.S. Dating" and told him she was a

22-year-old model. Eventually, she told him she was seventeen years old, and he

decided to visit her in Missouri. While in Missouri, appellant and J.H. engaged in sexual

relations.   At some point, he found out that J.H. was actually fourteen years old.

Nevertheless, on December 18 or 19, 2009, he and J.H. went to his grandmother's house

in Bay City, Texas where they stayed for three days. They planned to get married at

some point in the future.

       When the prosecutor asked J.H., "So, if you were there for a period of three days,

you said every time y'all had sex it would be vaginal sex, his [appellant's] penis in your

vagina, and oral sex, which would be his penis in your mouth?", she said, "Yes." At that

point, the following exchange occurred between J.H. and the prosecutor:

       Q.     And those happened the days that you were here?

       A.     Yes.

       Q.     So, the 20th and 21st and the . . . 22nd, if the 23rd was the day you
              were picked up?

                                              2
       A.        I was picked up very late on the 23rd. We had the whole day of the
                 23rd.

       Q.        So, if I said the 20th, you had sexual intercourse and oral sex?

       A.        Yes.

       Q.        The 21st—

       A.        Yes.

       Q.        —sexual intercourse and oral sex, and the 22nd sexual intercourse
                 and oral sex?

       A.        Yes.

       On December 23, 2009, David Maxwell, a Texas Ranger, interviewed appellant at

the Bay City Police Department. During this interview, appellant gave Ranger Maxwell a

written statement in which he stated, in relevant part:

              I met [J.H.] on an alternate dating site on the internet back in October
       of 2009. The name of the dating site is tsdating.com. It is a dating site for
       transsexuals. I was attracted to the site not because I have ever had a
       relationship with one but I was curious.

             [J.H.] started out by lying to me and telling me that she was a
       morphrodite. We talked back and forth on this site for a couple of weeks,
       and then she started contacting me on Yahoo Messenger. We talked back
       and forth there, and she told me that her name was Zane Tadesse. We
       progressed from talking on Yahoo to talking on the phone.

               I then found what I thought was her cousin on Myspace, and it turned
       out to be [J.H.'s] mom. Her name was [A.G.].[1] When I was talking to
       [J.H.], she told me that she was 22 years of age and put a fake picture on
       the internet. So, I did not really know what she looked like. We even
       talked on video chat and she would hide her face from me and tell me that
       she did not want me to see her because she did not have any makeup on.
       She told me that she had had bad acne.

                 When I found her mom on Myspace and her profile said she had a
       1
           To protect J.H.'s mother's privacy, we will not mention her name.
                                                     3
       daughter [J.H.] that was 17 years of age, I just knew that Zane's—I just
       knew that was Zane's real name.

                With all of this time talking to [J.H.] on the internet and the phone, I
       fell in love with her and so I wanted to travel to Missouri to see her. We
       would spend about eight hours a day talking on the phone or the internet
       each day.

              * * *

             After I found her on her mom's Myspace and found out that she was
       17 years of age, with a birthday coming up, I asked her if I could come see
       her. I did not find out that she was 14 years of age until I got to her house
       and some of her friends told me she was 14 years of age with a birthday
       coming up in January.

              When I found out that she was 14 years of age, I wanted to leave so
       badly but I was in love with her and I could not leave. I talked to [J.H.'s]
       mom and told her I wanted to marry [J.H.] and she told me that when [J.H.]
       turned 15 years of age that she would sign the consent for her to marry me.
       Her mom also consented for [J.H.] to come to Texas with me for Christmas.

             [J.H.] and I have sex at least twice a day. [J.H.'s] mom knew that we
       were having sex and that we were having sex in her house. She did not
       seem to mind. . . .

       When the prosecutor asked Ranger Maxwell, "During the course of this statement

and during the course of your interview with him [appellant], did he admit to what would be

criminal offenses here in the State of Texas?", he said, "Yes, he did." When asked, "And

are those offenses sexual assaults of a child under the age of 17?", he said, "Yes."

When the prosecutor stated, "The child being the little girl that y'all found, [J.H.]?", he

said, "That's correct." When the prosecutor asked him, "And he [appellant] admits

during the course of the statement and also in the interview with . . . him, . . . that he had

been having sex with her [J.H.] here in Matagorda County?", he said, "That's correct."




                                              4
       The defense did not call any witnesses to testify at the guilt-innocence phase.

                                            II. DISCUSSION

A. Ineffective Assistance of Counsel

       In issue one, appellant contends he received ineffective assistance of counsel.

Appellant divides his claims of ineffective assistance of counsel into six different

categories. We separately address each claim.

       1. Standard of Review

       "The Sixth Amendment to the United States Constitution, and section ten of Article

1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a

criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires

more than the presence of a lawyer; it necessarily requires the right to effective

assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v.

Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right to

errorless counsel,[ 2 ] but rather to objectively reasonable representation."    Id. (citing

Strickland v. Washington, 466 U.S. 668, 686 (1984)).

       "To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Id.

"Appellant must show that (1) counsel's representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense." Id. (citing

Strickland, 466 U.S. at 689). "Unless appellant can prove both prongs, an appellate

court must not find counsel's representation to be ineffective." Id. (citing Strickland, 466
       2
           Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
                                                   5
U.S. at 687).      "In order to satisfy the first prong, appellant must prove, by a

preponderance of the evidence, that trial counsel's performance fell below an objective

standard of reasonableness under the prevailing professional norms." Id. "To prove

prejudice, appellant must show that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding would

have been different." Id. (citing Strickland, 466 U.S. at 687).

       "An appellate court must make a 'strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance.'" Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689)).

"In order for an appellate court to find that counsel was ineffective, counsel's deficiency

must be affirmatively demonstrated in the trial record; the court must not engage in

retrospective speculation." Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999)). "'It is not sufficient that appellant show, with the benefit of hindsight, that his

counsel's actions or omissions during trial were merely of questionable competence.'"

Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)).

"When such direct evidence is not available, we will assume that counsel had a strategy if

any reasonably sound strategic motivation can be imagined." Id. at 143 (citing Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). "In making an assessment of

effective assistance of counsel, an appellate court must review the totality of the

representation and the circumstances of each case without the benefit of hindsight." Id.

(citing Robertson, 187 S.W.3d at 483).




                                               6
       The court of criminal appeals "has repeatedly stated that claims of ineffective

assistance of counsel are generally not successful on direct appeal and are more

appropriately urged in a hearing on an application for a writ of habeas corpus." Id.

(citing Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State,

68 S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131

(Tex. Crim. App. 2004). "On direct appeal, the record is usually inadequately developed

and 'cannot adequately reflect the failings of trial counsel' for an appellate court 'to fairly

evaluate the merits of such a serious allegation.'" Id. (quoting Bone, 77 S.W.3d at 833).

Claims of Ineffectiveness

       1. Opening the Door to Appellant's Criminal History

       Appellant contends defense counsel was ineffective because he "open[ed] the

door" to appellant's two prior convictions for injury to a child. During his guilt-innocence

opening statement, defense counsel provided a chronological rendition of what he

believed the evidence would show. Afterwards, he told the jury, in relevant part:

                  Now, there is more to this story than what I have just talked to you
       about. There is a history for which this man [appellant] served a significant
       amount of time in prison, some seven, eight years ago. He entered into an
       agreement with the State, this district attorney's office. Said, "I'll take my
       time. After, I was sick. It was a horrible thing." And he did. And he got
       counseling and he got medication and he got many, many, many, many
       days to think about the horrible thing that he did. So, I'm not going to tell
       you it's all roses. But we're here on this case to determine whether he did
       it, . . . .

       After both sides completed opening remarks, the trial court held a hearing outside

the jury's presence during which the prosecutor argued defense counsel had opened the

door to appellant's prior convictions. The trial court agreed.


                                              7
       Even assuming defense counsel's performance was deficient because he

opened the door to appellant's prior convictions, appellant has failed to satisfy the second

prong of the two-part Strickland test, because he has not shown how his defense

counsel's deficient performance prejudiced his defense. See Strickland, 466 U.S. at

688.

       2. Introduction of Judgments of Conviction for Injury to a Child

       Second, appellant contends defense counsel was ineffective because he

introduced two judgments in evidence, showing appellant had two prior convictions for

injury to a child. While cross-examining Ranger Maxwell at the guilt-innocence phase,

defense counsel introduced in evidence two judgments, showing appellant had two

previous convictions for injury to a child. Each judgment shows appellant pleaded guilty

to the offenses of injury to a child.

       Even assuming defense counsel's performance was deficient because he

introduced the judgments of conviction into evidence, appellant has failed to satisfy the

second prong of the two-part Strickland test, because he has not shown how his defense

counsel's deficient performance prejudiced his defense. See Strickland, 466 U.S. at

688.

       3. Opening Statement at Guilt-Innocence Phase

       Third, appellant contends defense counsel was ineffective because he allegedly

conceded appellant's guilt during his guilt-innocence opening statement. Appellant calls

our attention to the following remarks made by defense counsel: "So, he [appellant] gets

on a bus; and he comes up to meet her [J.H.] in Missouri. They meet. They spend the


                                             8
weekend . . . at a hotel. They played games, and then they may have committed sex at

that time. I think it's pretty clear that they did. In fact, I think my client admitted it in his

statement that he gave to someone in the State of Missouri." Later during his opening

statement, defense counsel told the jury, in relevant part, "Now, in a nutshell . . . we have

deception and lies, resulting in consensual sex, . . . ."

       The record is silent concerning defense counsel's motive for conceding that

appellant had a sexual relationship with J.H. However, the evidence against appellant

was strong. J.H. testified she and appellant had sex on three different days while they

were in Bay City, Texas. Appellant confessed to Ranger Maxwell that he and J.H. had

sex while in Matagorda County. Thus, defense counsel, knowing that the evidence

would show J.H. was fourteen years old when she and appellant had sex in Matagorda

County, could have been trying to minimize appellant's culpability by telling the jury that

appellant and J.H. did have sex, but it was consensual, and J.H. had lied to appellant

about her age.

       4. Failure to Object

       Fourth, appellant contends defense counsel was ineffective because he failed to

object to:   (1) the prosecutor referring to appellant as an "ex-con"; (2) references

regarding the details of his prior convictions for injury to a child; and (3) the prosecutor's

"suggestion" that he was a "child molester." We address each complaint separately.

       a. Referring to Appellant as an Ex-Con

       The record is silent concerning why defense counsel did not object when the

prosecutor referred to appellant as an ex-con. However, a possible strategy is that


                                               9
defense counsel may have believed that if he objected each time the prosecutor referred

to appellant as an ex-con, he would draw the jury's attention to that fact, even if the trial

court sustained his objections.

       b. References to the Details of Appellant's Prior Convictions for Injury to a
       child

       During the State's guilt-innocence case-in-chief, the prosecutor elicited testimony

from Susan Maxwell, an investigator for the Matagorda County District Attorney's Office,

and from Ranger Maxwell, showing: (1) appellant had a prior conviction for injury to a

child that resulted in his imprisonment; and (2) the child victim was two years old. In

addition, the prosecutor asked Ranger Maxwell what injuries the child victim suffered.

The prosecutor let Ranger Maxwell examine the court's files regarding appellant's two

prior felony convictions for injury to a child and then asked him:

       Q.     [C]an you tell us the . . . injury that caused the defendant to end up in
              T.D.C.?

       A.     Yes. It states that it was a serious bodily injury to [E.C.], a child of
              14 years of age or younger, by striking her with his hands with an
              unknown object rupturing her eardrum.

                     * * *

       Q.     I don't think we talked about the other case, that would have
              been—this is the Cause 130.

       A.     Yes. Would you like me to read it?

       Q.     Uh-huh.

       A.     "Did intentionally and knowingly cause bodily injury to [E.C.], a child
              of 14 years of age or younger, by biting her arm with his teeth."




                                             10
        In addition, appellant calls our attention to the prosecutor's direct-examination of

J.H. and appellant's sister, Sarah Schafer.              During the guilt-innocence phase, the

prosecutor asked J.H.: "What did he [appellant] tell you about why he had been in

prison?" To this, J.H. replied, "He had told me that he had gotten very angry with a

young girl and he had severely damaged her arm." Also during the guilt-innocence

phase, the prosecutor asked Schafer: "Did you ever know of a situation, a time in which

he [appellant] went to prison?" She replied, "Eventually, . . . ." She stated the victim of

the offenses for which appellant went to prison was a girl "[a]bout 3 years old."

        The record is silent concerning why defense counsel did not object to the

prosecutor's elicitation of the details of appellant's prior convictions.                 However, a

possible trial strategy is that defense counsel may have believed that if he objected when

a reference was made to the details of appellant's prior convictions, he would draw the

jury's attention to those details, even if the trial court sustained his objections.

c. Suggestion that Appellant was a Child Molester

        During the punishment phase, appellant's ex-girlfriend, R.P., testified that while

she and appellant lived together, he tied her to the bed and left the bedroom. When he

returned, he untied her, and she saw he was "sweaty." Appellant directs our attention to

the following exchange between himself and the prosecutor:

        Q.      Why did you tie [R.P.] to the bed and come back sweaty?

        A.      [B]ecause we were about to have sex and she asked me to do that.
                I never in my life touched [E.C.][3] or any other child.

        Q.      Don't you talk to people about the fact that your mother sexually

        3
          The punishment evidence showed that E.C. is R.P.'s biological daughter, who lived with R.P. and
appellant before appellant met J.H.
                                                  11
               abused you? You've been talking about all these things that
               genetically go from one person to another.

      A.       Bipolar disorder.

      Q.       Don't you talk . . . to people about the fact that your mother sexually
               abused you?

      A.       Yes.

                      * * *

      Q.       And you and I both know you're a smart guy; that sexual abuse is
               something that runs in families as well.

      A.       I have never in my life touched a child like that.

      Q.       So, you never sexually abused [E.C.]?

      A.       No.

      Appellant contends defense counsel should have objected to this colloquy and

asserts that the prosecutor's comment that sexual abuse "runs in families" along with the

fact that appellant's mother sexually abused him constitute a "suggestion" by the

prosecutor that he "was a child molester[.]" The record is silent regarding why defense

counsel did not object to the above-quoted exchange.                However, the punishment

evidence showed appellant physically abused E.C. on numerous occasions. A possible

trial strategy is that defense counsel decided to let appellant answer the prosecutor's

questions so he could deny in front of the jury that he sexually abused E.C. This showed

that even though appellant physically abused E.C., he did not sexually abuse her.

      5. Closing Argument

      Fifth,    appellant     contends    defense     counsel       was   ineffective    during

punishment-phase closing argument because he injected his personal opinion that

                                              12
appellant should have served more time in prison for his prior convictions for injury to a

child. Specifically, appellant directs our attention to the following italicized remarks,

which we put in context:

       [I]n . . . 2005, in March, he [appellant], in this court, enters a plea and
       announces to the court, "How do you plead to the charges brought against
       you for injury to this child?" "I plead guilty, your Honor."

               Two counts backed up by a statement, backed up by these pictures.
       . . . [A]nd the district attorney says okay, we're going to do this if the judge
       will accept it.

              The court . . . reviews it and accepts it. . . .

             My client, as he should, as he darn well should, he goes to prison
       and he's there for about—a little short of 2,000 days. Probably not enough.
       ...

       Defense counsel's reason for making the complained-of comment does not appear

in the record. However, his strategy may have been to argue to the jury: (1) that

appellant pleaded guilty to the two prior charges of injury to a child because the district

attorney offered him a deal, which the trial court approved; and (2) this deal did not

include enough prison time, which appellant needed for rehabilitation. This strategy

allowed defense counsel to mitigate appellant's responsibility for committing the

sexual-assault offenses against J.H. by shifting some of the blame for his conduct to the

district attorney, for offering appellant a deal that included minimal prison time for two

first-degree felony convictions, and to the judge for approving the deal.

       In each of the five aforementioned allegations of ineffective assistance of counsel,

the record is silent about defense counsel's reasons for his conduct, and a possible trial

strategy exists for his actions. When, as in this case, "counsel's reasons for his conduct


                                               13
do not appear in the record and there is at least the possibility that the conduct could have

been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an

ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.

Crim. App. 2002). Based on this record, we cannot conclude that defense counsel's

performance fell below an objective standard of reasonableness. See Rylander v. State,

101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Even assuming defense counsel was

deficient, appellant has failed to prove there is a reasonable probability that, but for

defense counsel's deficiency, the result of the trial would have been different.         See

Strickland, 466 U.S. at 687.

       6. Failure to Request a Limiting Instruction

       Sixth, appellant contends defense counsel was ineffective because he failed to

request a limiting instruction concerning extraneous conduct and testimony regarding his

prior convictions for injury to a child.    In the guilt-innocence charge, the trial court

instructed the jury, in relevant part:

       There has been introduced evidence of extraneous crimes or bad acts other
       than the one charged in the indictment in this case. This evidence was
       admitted only for the purpose of assisting you, if it does, for the purpose of
       showing the defendant's motive, opportunity, intent, preparation, plan,
       knowledge, identity, or absence of mistake or accident, if any. You cannot
       consider the testimony unless you find and believe beyond a reasonable
       doubt that the defendant committed these acts, if any, were committed.

       Absent evidence to the contrary, we presume the jury followed the trial court's

instructions as set forth in the charge. See Resendiz v. State, 112 S.W.3d 541, 546

(Tex. Crim. App. 2003). Even assuming defense counsel was deficient for failing to

request limiting instructions, appellant has failed to prove there is a reasonable probability


                                             14
that, but for defense counsel's deficiency, the result of the trial would have been different.

See Strickland, 466 U.S. at 687. Issue one is overruled.

B. State's Closing Arguments

       In issues two and three, appellant contends the prosecutor made improper

remarks during closing argument at both phases of trial.

       1. Guilt-Innocence Phase

       During   the   guilt-innocence    phase,   the   prosecutor made       the following

complained-of argument: "This little girl [J.H.] is not the first girl he's [appellant] met

online and gone to another state to see. She's the second that we know about."

       2. Punishment Phase

       During the punishment phase, the prosecutor made the following complained-of

argument: "You know, a picture is worth a thousand words; but I think these pictures of

[E.C.] are worth a lot more. If nothing else, hold him [appellant] accountable for what he

did to that little girl [E.C.] in the one month she was dependent on him."

       3. Preservation of Error

       Appellant did not object to the above-quoted remarks. When a defendant fails to

object to jury argument, he forfeits his right to raise the issue on appeal, even if the issue

is constitutional in nature. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App.

2004); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).               Therefore,

appellant waived error, if any, in these portions of the State's closing arguments. Issues

two and three are overruled.




                                             15
C. Prosecutorial Misconduct

        In issue four, appellant contends the State committed prosecutorial misconduct by

trying him as a "criminal generally," rather than for sexual assault of a child. During the

State's punishment-phase closing argument, the prosecutor argued to the jury:

              You know, since December 23rd, 2009, when the name Chris Carr
        came to the forefront again, I've been waiting for right now, for this very
        second.

              You know what I wanted to say? I gotcha Chris Carr, I gotcha. We
        gotcha. Today is going to be your day, right now, right this very second.

               Now, [defense counsel] when he was talking about pleading him
        [appellant] to five years back then and talking about Steven Reis[4] if you
        look back through the papers on there, Steven Reis' name is not on it.
        Carla Post is the one who signed the plea bargain agreement[5] with this
        defendant.

                          * * *

                  Because back in 2005 when this defendant must have skipped out of
        the courtroom with his five-year deal, we had a very injured 2-year-old
        non-verbal, a codefendant [R.P.] who wouldn't talk against him [appellant],
        and an injured child. And at that point the best thing we could do was get a
        little bit—a small pound of flesh from each of those defendants and we took
        that choice. We took the choice to take the five years.

At that point, defense counsel stated, "Your Honor, I'm going to object to this line of

arguing. It's not in evidence. It's improper." The trial court overruled the objection.

        The court of criminal appeals has stated that to preserve error for appellate review,

a party's point of error on appeal must comport with the objection made at trial. Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also Braxton v. State, 909 S.W.2d


        4
            Steven Reis is the current Matagorda County District Attorney.
        5
           This reference is to the plea-bargain agreement involving appellant's two prior convictions for
injury to a child.
                                                     16
912, 918 (Tex. Crim. App. 1995) (stating that point of error raised on appeal must

correspond to objection made at trial). Here, the point of error on appeal is that the State

engaged in prosecutorial misconduct by trying appellant as a criminal generally.

However, appellant's trial objection was that the prosecutor's closing argument was "not

in evidence" and "improper." Accordingly, this complaint is not preserved because the

point of error on appeal does not correspond to the trial objection. See Wilson, 71 S.W.3d

at 349; Braxton, 909 S.W.2d at 918.

       After the trial court overruled the aforementioned objection, the prosecutor

continued her argument as follows:

          They don't want you to know that. That's the truth of the matter. This
       defendant was represented by Richard Manske, an attorney who's been
       practicing back then as long as [defense counsel] has. You think they
       didn't know the problems with our case back then? Heck, yeah, they did.

                     * * *

          So, don't talk to me about not holding him [appellant] accountable for
       things that happened in the past.

                     * * *

           I want us to scream at him [appellant]. You get life in prison, Chris Carr,
       for what you've done in our community. . . .

       Appellant did not object to this portion of the argument. "As a prerequisite to

presenting a complaint on appeal, a party must have made a timely and specific request,

objection, or motion to the trial court."   Grant v. State, 345 S.W.3d 509, 512 (Tex.

App.—Waco 2011, pet. ref'd) (citing TEX. R. APP. P. 33.1(a)(1)(A)).            Because no

objection, request, or motion was made concerning the above argument, the complaint is

not preserved for appellate review.

                                             17
      Next, appellant directs us to the prosecutor's cross-examination of appellant at the

punishment phase:

      Q.        You . . . spent a lot of time talking to this jury about the fact that your
                father died, your mom left when you guys were young, you were off
                your meds at the time, as a result of some of the things that
                happened in your life you've become suicidal. Why are you telling
                us all this stuff?

      A.        Because.

      Q.        Because why?

      A.        That's how I feel about [E.C.]. I want to die.

      Q.        You want to die?

      A.        Yeah.

      Q.        Well, sadly, death isn't in the punishment range that we're allowed to
                give here in this courtroom. . . .

                         * * *

      Q.        You served almost your full five years?[6]

      A.        I served my entire five years.

      Q.        Do you know that the parole board got a copy of this letter where you
                said that it made you happy?

                         * * *

                Does it make you madder at me?

      A.        No, not really angry at you.

      Q.        You're not?

      A.        I'm not really angry at you.

      Q.        You're not really angry at me. You changed your mind?
      6
          The prosecutor is referring to the sentence appellant served for the offenses of injury to a child.
                                                     18
       A.     I can't be. The only reason you're here is because I did what I did.

                     * * *

       Q.     Did you hit her [E.C.] with anything besides your fist?

       A.     No.

       Q.     Kick her?

       A.     No.

       Q.     I know you did. You might as well tell us.

       A.     No.

                     * * *

       Q.     Are you getting angry with me now?

       A.     No. I'm angry with myself.

       In all of these instances, no objection was made either to the prosecutor's

questions or to appellant's responses. Thus, error, if any, is not preserved for appellate

review. See TEX. R. APP. P. 33.1(a)(1)(A); Grant, 345 S.W.3d at 912.

       In addition, appellant calls our attention to the following exchange between him

and the prosecutor at the punishment phase:

       Q.     Did you think that you had almost killed her [E.C.]?

       A.     [T]ruthfully, if I had known it was that bad, I wouldn't be here right
              now.

       A.     I know you keep talking about the fact that you're suicidal; but,
              frankly, I've never seen you actually try—

At that point, defense counsel stated, "Judge, is that a question or sidebar? Object to it."

The trial court sustained the objection. The point of error on appeal is that the State

                                            19
engaged in prosecutorial misconduct by trying appellant as a criminal generally; however,

appellant's objection was that the prosecutor's question amounted to "sidebar."

Accordingly, this complaint is not preserved because the point of error on appeal does not

correspond to the trial objection. See Wilson, 71 S.W.3d at 349; Braxton, 909 S.W.2d at

918.

       Lastly, appellant calls our attention to the prosecutor's closing remarks at the

guilt-innocence phase:

               You know, it's funny to me that he [defense counsel] is now calling
       the defendant not a criminal. The defendant has been to prison out of this
       court for two offenses involving injuring a small child, causing serious bodily
       injury to a child who was less than 3 years old.

                     * * *

              This ain't his first rodeo. What you have sitting right here, this
       defendant, Christopher Carr is an ex-con. You have a 25-year-old ex-con
       who paroled out of prison to our county, who spends all his time apparently
       surfing porn sites on the internet.

                     * * *

              This little girl is not the first girl he's met online and gone to another
       state to see. She's the second that we know about.

       Because no objection was made to this argument, appellant forfeits his right to

raise the issue on appeal, even if the issue is constitutional in nature. See Threadgill,

146 S.W.3d at 670; Cockrell, 933 S.W.2d at 89. Therefore, appellant waived any error in

this portion of the State's closing argument. Issue four is overruled.

D. Stacking of Sentences

       In issue five, appellant contends the trial court erred by improperly cumulating his

sentences. The jury returned a verdict of guilty on counts one, two, four, five, seven, and

                                              20
eight. On the State's motion, the trial court ordered that; (1) counts two, five, and eight

"run concurrently with each other"; (2) counts one, four, and seven "run concurrently with

each other"; (3) the concurrent sentences in counts two, five, and eight "run consecutively

to the concurrent sentences" in counts one, four, and seven; and (4) the concurrent

sentences of counts two, five, and eight "shall begin only when the judgment and

concurrent sentences in counts one, four, and seven have ceased to operate."

       Texas trial courts have the discretion to order cumulative sentences in virtually

every case. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2011); Millstagle

v. State, 150 S.W.3d 781, 784 (Tex. App.—Austin 2004, pet. dism'd untimely filed).

However, when multiple offenses arising out of the same criminal episode are

consolidated for a single trial, and the defendant is found guilty of more than one offense,

Section 3.03(a)7 of the Texas Penal Code limits the trial court's discretion to cumulate the

sentences. Millstagle, 150 S.W.3d at 784. Section 3.03(b)(2)(A) creates an exception

to this exception; that is, it exempts certain offenses, including sexual assault of a child,

from the application of Section 3.03(a). See TEX. PENAL CODE ANN. § 3.03(b)(2)(A)

(West 2011).

       Until 1995, Section 3.03 required sentences for multiple offenses prosecuted in a

single trial to run concurrently.       See DeLeon v. State, 294 S.W.3d 742, 745 (Tex.

App.—Amarillo 2009, pet. ref'd). In that year, the Texas Legislature amended Section

       7
           Section 3.03(a) provides:

       When the accused is found guilty of more than one offense arising out of the same criminal
       episode prosecuted in a single criminal action, a sentence for each offense for which he
       has been found guilty shall be pronounced. Except as provided by Subsection (b), the
       sentences shall run concurrently.

TEX. PENAL CODE ANN. § 3.03(a) (West Supp. 2011).
                                                  21
3.03 to restore the trial court's discretion to impose consecutive sentences for multiple

intoxication manslaughter convictions resulting from a single trial. See Act of May 26,

1995, 74th Leg., R.S., ch. 596, § 1, 3435, 3435; DeLeon, 294 S.W.3d at 745. In 1997,

the Texas Legislature further amended Section 3.03 to add some sexual offenses

committed against a victim younger than seventeen to the list of offenses subject to

consecutive sentencing when there are multiple convictions in a single trial. Those

offenses include sexual assault of a child. See Act of May 31, 1997, 75th Leg., R.S., ch.

667, § 2, 2250, 2251.      DeLeon, 294 S.W.3d at 745. Those amendments became

effective on September 1, 1997 and applied to offenses committed on or after the

effective date of the Act. See Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 2252,

2253.

        In DeLeon, the State prosecuted the defendant for offenses during a criminal

episode spanning eight years and comprising aggravated sexual assault, sexual assault,

and indecency with a child. DeLeon, 294 S.W.3d at 744. DeLeon received concurrent

sentences of imprisonment for offenses committed before September 1, 1997, and

consecutive sentences of imprisonment for offenses committed after that date. Id. The

DeLeon court considered the issue of the trial court's discretion with regard to

consecutive sentencing when Section 3.03(b) offenses committed after the effective date

of the 1997 amendment are tried together with such offenses committed before the

effective date. The court stated:

        We think the answer to the question presented is found in the statutory
        language establishing the effective date of the 1997 amendment to section
        3.03. As the Court of Criminal Appeals pointed out in Bahena, 195 S.W.3d
        at 705, the legislature used different "effective dates" language in the 1995

                                             22
       and 1997 amendments. The legislature made the 1995 amendment,
       permitting consecutive sentences for multiple intoxication manslaughter
       convictions, applicable only if each offense joined for trial was committed on
       or after the amendment's effective date, September 1, 1995. The effective
       date language of the 1997 amendment does not contain such a provision.
       The 1997 statute simply states that its change in law applies only to "an
       offense committed on or after" its effective date, September 1, 1997, and
       that offenses committed before that date are subject to the law in effect
       when the offense was committed. Act of May 31, 1997, 75th Leg., R.S.,
       ch. 667, §§ 7, 8, 2250, 2252-53. (footnotes omitted).

DeLeon, 294 S.W.3d at 746–47.         The DeLeon court found that the trial court had

discretion to cumulate sentences for the offense committed after September 1, 1997. Id.

at 749.

       In the instant case, all of the offenses occurred after September 1, 1997 when J.H.

was younger than seventeen years old. Thus, we hold that the trial court did not abuse

its discretion by ordering the concurrent sentences in counts two, five, and eight to run

consecutively with the concurrent sentences in counts one, four, and seven. Issue five is

overruled.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.




                                                    ROSE VELA
                                                    Justice

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

Delivered and filed the
13th day of December, 2012.


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