                                          NO. 07-01-0107-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                     DECEMBER 30, 2002
                               ______________________________

                                            DAVID MEDINA,

                                                                   Appellant

                                                     v.

                                       THE STATE OF TEXAS,

                                                    Appellee
                            _________________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                         NO. 43028-E; HON. ABE LOPEZ, PRESIDING
                            _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.*

        David Medina appeals his conviction for delivering a controlled substance. The jury

assessed punishment after he pled guilty to the charge. His sole point of error involves

due process. That is, he contends that he was denied due process and a fair trial since

the “State failed to allow [him] to take a shower or sleep on anything other than concrete

prior to the [punishment] hearing” and the trial court “would not allow him to explain his

appearance to the jury.” We overrule the issue and affirm the judgment.



        *
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2002 ).
       After pleading guilty and before commencement of the punishment phase of the

trial, appellant was taken into custody. He spent the evening in jail and slept on a concrete

bench. This allegedly prevented him from obtaining a restful night’s sleep. So too was he

denied an opportunity to shower before appearing in court the next day. However, this

situation was not made known to either counsel for appellant or the trial court until after

appellant appeared at the punishment hearing, testified on his own behalf, called other

witnesses to testify, and rested his case. By that time, the trial court had not only informed

the jury that testimony in the punishment phase had concluded, but also solicited

comments from counsel upon the proposed jury charge.

       When inquiry was made by the trial court into the situation, appellant was asked

whether he had “anything that [he] would like to tell the jury . . . that you did not tell them

because of the conditions that [he] testified to . . .?” Appellant answered: “No, sir.” Later,

appellant reiterated that there was nothing else he wanted to tell the jury other than to

explain his physical appearance. Absent from the record, however, is any testimony or like

evidence describing appellant’s appearance. And, though he thought that a good night’s

sleep and a shower may have enabled him to “project[] a better image to the jury, we are

directed to nothing in the record which indicates that his appearance (whatever its state

may be) influenced the jury’s verdict.

       Authority recognizes that the appearance of an accused may impact upon his

constitutional right to a fair trial. See e.g., Randle v. State, 826 S.W.2d 943, 944 (Tex.

Crim. App. 1992). Yet, complaint about a purported infringement of that right must be

raised in a timely manner. Manning v. State, 864 S.W.2d 198, 204 (Tex. App.–Waco

1993, pet. ref’d) (wherein Manning failed to object to wearing a jail identification bracelet

                                              2
until after voir dire began). And, it is timely if urged at the earliest available opportunity.

Id.; Lusk v. State, 82 S.W.3d 57, 60 (Tex. App.–Amarillo 2002, pet. ref’d) (stating that an

objection must be urged at the earliest opportunity to enable the trial court to correct the

circumstance). Here, the complaint was not raised until the conclusion of the punishment

phase of the trial and after appellant had already testified. Waiting to complain until after

the jury has seen the appellant is not the earliest opportunity. See e.g., Manning v. State,

864 S.W.2d at 204. Thus, appellant did not adequately preserve his complaint for appeal.

       Next, as appellant explicitly states in his brief, “it is the failure of the trial court to at

least have permitted appellant an opportunity to explain his physical state, including his

personal appearance, which is appealed.” In other words, the issue before us involves his

physical appearance and its potential impact upon the jury. Given this, logic dictates that

before we can assess that potential impact, we must have some evidence from which we

can determine his appearance. Yet, there is none of record. We do not know if he was

disheveled, dirty, discomposed or the like. We are simply told that he slept on a concrete

bench and was denied a shower. Whether those circumstances adversely affected his

appearance to an extent depriving him of a fair trial is utter speculation. And, we cannot

reverse a judgment based upon speculation. Simply put, appellant has not presented us

with a record sufficiently illustrating reversible error.

       Accordingly, the judgment is affirmed.



                                                      Brian Quinn
                                                         Justice

Do not publish.


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