                                 NO. 07-07-0458-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                               OCTOBER 24, 2008
                        ______________________________

                              JOHNNY R. SATCHELL,

                                                            Appellant

                                          v.

                              THE STATE OF TEXAS,

                                                            Appellee

                      _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2006-413383; HON. BRAD UNDERWOOD, PRESIDING
                      _______________________________

                             Memorandum Opinion
                       _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Johnny R. Satchell appeals his multiple convictions for aggravated sexual assault.

His minor stepdaughter was the victim. Seven issues pend for resolution. We affirm.

      Issues 1, 2, and 3 - Closing Argument

      Via the first three issues, appellant contends that the trial court erred in not

sustaining his objection to the following comment by the prosecutor during closing

argument:
       But let’s talk about the defendant’s actions and how it supports this as well.
       No cooperation with the police department. Opportunity for the STD test and
       he refuses to show up.1

Appellant objected to the comment on the ground that it shifted the burden of proof to him.

The objection was overruled. The prosecutor then continued by stating:

       This opportunity for the STD test and he refuses to show up. What does he
       do? With this investigation going on, he leaves town . . . .

No objection was made to these statements. Nor did appellant solicit a continuing

objection in response to the prosecutor’s initial comment. Given the absence of a further

objection or a prior request for a running objection, any complaint appellant may have had

to the argument was waived when the State reiterated it. See Martinez v. State, 98 S.W.3d

189, 193 (Tex. Crim. App. 2003) (holding that one must object each time inappropriate

activity occurs or request a continuing objection when his first complaint is overruled,

otherwise the complaint is waived).

       Moreover, we note that the grounds underlying appellant’s argument here exceed

those mentioned below. Again, the sole ground disclosed to the trial court encompassed

the purported shifting in the burden of proof. Nothing was said below about impugning his

right against self-incrimination or to be free from unlawful searches and seizures, two

grounds urged before us. Given that appellant denied the trial court opportunity to consider

the latter two grounds, they were not preserved for review. Guevara v. State, 97 S.W.3d

579, 583 (Tex. Crim. App. 2003) (holding that when the objection at trial fails to comport

with that on appeal, the complaint is waived).




       1
           The victim was diagnosed with gonorrhea.

                                                      2
       Lastly, evidence was introduced at trial illustrating that after the victim told police

appellant had assaulted her, appellant called the investigating police officer. The officer

asked appellant if he was willing to be tested for sexually transmitted diseases.2 Appellant

agreed to be tested but said that he could not afford it. This led the officer to make

arrangements for the cost to be waived and he informed appellant of that and of a date he

arranged for testing. Appellant again agreed to undergo testing and informed the officer

that he would give the officer his statement after the test. Appellant, however, failed to

appear for the appointment; instead, he left Lubbock. This being evidence presented at

trial, the prosecutor was entitled to summarize it during his closing argument. See Gallo

v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007), cert. denied, ___ U.S. ___, 128

S.Ct. 2872, 171 L.Ed.2d 813 (2008) (stating that summation of the evidence is a

permissible area for jury argument).

       We overrule the issues.

       Issues 4 and 5 - Notice of Expert Witness

       Through the next two issues, appellant questions the trial court’s decision to overrule

his objection to expert testimony and purportedly deny his motion for continuance. We find

the following faults with the contentions.

       First, the record does not reflect that the trial court ruled on the specific objections

now urged by appellant. Other of his objections were overruled after the trial court

conducted a hearing to determine if the witness in question, Mike Betancourt, was qualified

to testify as an expert. Without a ruling, a complainant generally does not preserve for

review his complaint. Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008).


       2
           Again, the child victim had contracted a sexually transm itted disease.

                                                       3
        Second, appellant mistakenly contends that he was denied prior notice of the

State’s intent to call Betancourt as an expert. Betancourt’s name appeared on the State’s

witness list with the notation:            “CAC; forensic interviewer; expert regarding forensic

interview, including signs and symptoms of sexual abuse and/or child abuse.” (Emphasis

added). Moreover, defense counsel represented to the trial court that he received the

document containing the aforesaid statement. Thus, the State did not neglect to identify

Betancourt as a potential expert witness.

        Third, the prosecutor informed the trial court that Betancourt had not prepared an

expert report and that the forensic interview and drawings made during the interview had

been provided to appellant. Defense counsel acknowledged receiving this information.

So too did counsel represent that he would encounter no surprise if the scope of

Betancourt’s testimony did not exceed the scope of the data given counsel. Finally,

appellant does not argue that the witness’ testimony exceeded the scope of what was

contained in those documents. Nor does he claim surprise or prejudice on appeal. Gallo

v. State, 239 S.W.3d at 765 (requiring the appellant to show how permitting the witness

to testify caused prejudice).

        Fourth, appellant failed to cite us to that portion of the record containing his

purported motion for continuance. Nor did our review of the record fill the void for we found

no request for a continuance being sought due to the supposed failure to disclose

Betancourt’s identity or the substance of his testimony. Whether this deficiency (if not

misrepresentation) in appellant’s briefing was accidental or intentional is unknown.3


        3
         That the record contained no m otion for continuance was expressly m entioned in the State’s
responsive brief. Thus, appellant had the opportunity to clarify the m atter via a reply brief. No reply was filed,
however.

                                                        4
Nonetheless, the trial court cannot be faulted for purportedly denying relief which appellant

did not request.

        The issues are overruled.

        Issue 6 - Newspaper Article

        Next, appellant argues that the trial court erred in refusing to poll the jury about a

newspaper article concerning the trial.4 Yet, appellant fails to cite us to where in the record

this matter was broached to and rejected by the trial court. Thus, he did not adequately

brief the issue. See Moreno Denoso v. State, 156 S.W.3d 166, 183 (Tex. App.–Corpus

Christi 2005, pet. ref’d) (requiring the litigant to cite to the record or risk waiving his

complaint).

        Additionally, the trial court instructed the jury, before trial began, against reading

any newspaper articles about the case. So too did it remind the jury to obey its instructions

when the jury recessed after the first day’s testimony. We generally presume that the jury

follows judicial instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005);

Dixon v. State, 64 S.W.3d 469, 475 (Tex. App.–Amarillo 2001, pet. ref’d). And, while that

presumption may be rebutted, appellant cited us to nothing of record suggesting that the

admonishment was violated. See Thrift v. State, 176 S.W.3d at 224 (requiring the

appellant to direct the court to evidence illustrating that the jury violated the instruction).

        Next, having instructed the jury not to read newspaper articles, the trial court was

not required to poll the jury as to whether any member read the piece. See Powell v. State,

898 S.W.2d 821, 828 (Tex. Crim. App. 1994) (stating that the court was not required to poll



        4
         Appellant states in his brief that this newspaper article was found in the jury room but nothing in the
record so indicates that fact.

                                                       5
the jury members as to whether they had read a newspaper article when the court had

frequently admonished the jury not to read any such articles and polling the members

created a risk of calling to their attention an article of which they might not otherwise be

aware). So, we reject appellant’s contention that a poll was needed.

       Appellant’s sixth issue is overruled.

       Issue 7 - Admonishment of Counsel

       Finally, appellant attacks the manner in which the trial court admonished both

counsel when the child victim returned to the witness stand after an evening’s recess and

neither party chose to question her. That admonishment consisted of the court saying:

       Well, that was painless. You can step down. We’re done. Thank you.
       Counsel, if you all don’t mind, if you all would let me know something like that
       before we have everybody brought in, that would be really helpful.

(Emphasis added). Moreover, no one objected to it. Nor was the comment of the ilk that

would tend to taint the presumption of innocence afforded to the defendant given that it

was directed to both counsel and dealt with a way to minimize delay. Thus, any complaint

that appellant may have had about it was waived. TEX . R. APP. P. 33.1(a)(1): see Blue v.

State, 41 S.W.3d 129, 132-33 (Tex. Crim. App. 2000) (noting that comments to the jury

may be fundamental error when they taint the defendant’s presumption of innocence).

       We overrule the issue.

       The judgments of the trial court are affirmed.



                                                   Brian Quinn
                                                   Chief Justice

Do not publish.



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