                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-14-00242-CR

                                          Rudy MENDEZ,
                                             Appellant

                                                 v.

                                        The STATE of Texas,

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR2880
                             Honorable Melisa Skinner, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: April 22, 2015

AFFIRMED

           Rudy Mendez appeals his convictions for sexual assault of a child and indecency with a

child by sexual contact. His sole issue is that the trial court erred by denying his motion for new

trial because the prosecution improperly questioned him during the punishment phase about his

failure to testify during the guilt-innocence phase, and improperly commented on his failure to

testify in closing argument.

           “As a prerequisite to presenting a complaint for appellate review, the record must

show . . . the complaint was made . . . by a timely request, objection or motion . . . .” TEX. R. APP.

P. 33.1(a). “A motion for mistrial is timely only if it is made as soon as the grounds for it become
                                                                                     04-14-00242-CR


apparent.” Weems v. State, 328 S.W.3d 172, 179 (Tex. App.—Eastland 2010, no pet.) (holding

motion for new trial based on prosecutor’s improper remark about a defendant’s choice not to

testify was untimely because it was made after the prosecutor’s closing argument).

       The record in this case shows the alleged improper questions and argument were made

during the punishment phase on November 7 and 8, 2013. The jury returned its verdict on

punishment on November 8. The trial court accepted the verdict and set the case for sentencing on

December 10. Mendez first objected to the prosecution’s questions and comments in his

“Objection/Motion for Mistrial,” filed on December 10. Because the objection was not timely,

Mendez failed to preserve his complaint for appellate review. See id. We affirm the trial court’s

judgment.

                                                Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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