                               NO. 07-10-0389-CR
                                       
                            IN THE COURT OF APPEALS
                                       
                       FOR THE SEVENTH DISTRICT OF TEXAS
                                       
                                  AT AMARILLO
                                       
                                    PANEL E
                                       
                                 JULY 18, 2011
                          __________________________
                                       
                              PAUL F. ROSALES,  
                                       
                                  	Appellant 
                                      v.
                                       
                             THE STATE OF TEXAS,  
                                       
                                   	Appellee
                          __________________________
                                       
               FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
                                       
            NO. 2009-425,826; HONORABLE CECIL G. PURYEAR, PRESIDING

                          __________________________
                                       
                              Memorandum Opinion
                          __________________________
                                       
Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.
	After pleading guilty to the offense before a jury, Paul F. Rosales was convicted of burglarizing a habitation.  He then tried the issue of punishment to the same jury, which eventually levied a sentence of fifty years in prison.  The two issues before us concern appellant's Fifth Amendment right to remain silent and the State's comment upon appellant's refusal to waive that right.  The comment was made during the punishment phase of the trial, again, after appellant had already pled guilty.   We overrule the issues and affirm the judgment. 
	The colloquy between the prosecutor and witness occurred as follows:
Q.  Now, did you and  -  decide to Mirandize this Defendant and also the passenger?

*  After Investigator McAdoo got to the scene.
Q.  Okay.  And who is Anthony McAdoo?
A.  He is a criminal investigator in our Investigations Division.  He was the on-call investigator and he was sent out to the scene.

Q.  And when we talk about mirandizing someone, we're talking about if you want to waive your rights and speak to law enforcement, someone can  -  you know, you can hire an attorney if you can't afford one, you have the right to talk to us or not; is that correct?

*  Yes, sir.
Q.  I mean, it's a little bit more detailed than that, but that's what the Miranda warnings are; is that correct?

*  Yes, sir.  
Q.  Did either Jesus or this Defendant ever waive their rights and speak to you?

A.  No, they refused.  
Q.  Okay.  
Thereafter, appellant's counsel sought leave to approach the bench.  Upon receiving such leave, counsel stated:  ". . . at this time I believe that is a comment on his post-arrest right to remain silent, and it goes to his failure to provide a defense and shifts the burden."  The trial court overruled the purported objection.
	A defendant must timely object to a purported comment about his decision to remain silent to preserve the error for review.  Salazar v. State, 131 S.W.3d 210, 214 (Tex. App. - Fort Worth 2004, pet. ref'd); Maxson v. State, 79 S.W.3d 74, 76 (Tex. App. -  Texarkana 2002, pet. ref'd).  To be timely, the objection must be uttered as soon as the ground for objection became apparent.  Neal v. State, 256 S.W.3d 264, 279  (Tex. Crim. App. 2008).  Waiting until after the question has been asked and answered while failing to show any legitimate reason for the delay does not satisfy the requirement.  Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).  And, that is what occurred here.  It is clear that the prosecutor was broaching, for some reason, the topic of remaining silent and one's right to do so.  It is also clear that the foregoing was a prelude to the witness being asked if appellant waived his right to remain silent.  Why appellant opted to withhold objection until the question was answered is unexplained.  So, under these circumstances, we conclude that appellant neglected to satisfy the requirement that he preserved the issues for review by timely objecting.  Consequently, the issues before us were waived.   
	
Accordingly, the judgment is affirmed.

							Brian Quinn 
							Chief Justice
Do not publish.
