                                   NO. 07-01-0231-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    AUGUST 5, 2002

                          ______________________________


                             HENRY C. MANN, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-436193; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Henry C. Mann appeals from his conviction of unlawful restraint with a

finding that he recklessly exposed the victim to a substantial risk of serious bodily injury

and the resulting jury-assessed punishment, enhanced by two prior felony convictions, of

40 years confinement in the Institutional Division of the Department of Criminal Justice.

In four issues, appellant argues that the State was allowed to mischaracterize him in
violation of the United States and Texas Constitutions and the trial court allowed improper

prosecutor remarks intended to remind the jury of his failure to testify on his own behalf

in violation of the United States and Texas Constitutions. For the reasons explicated, we

affirm the judgment of the trial court.


       On October 22, 2000, the complainant, Coretta Bailey, who had previously been

involved in a romantic relationship with appellant, was sitting in a car outside her home

with a friend. Appellant drove by several times and then forcibly removed her from the car

while allegedly displaying a knife. He struck her several times with his hands and forced

her into his vehicle. Appellant then drove her to his residence where he physically

assaulted her again. Eventually, Coretta kicked appellant in the groin, escaped, and ran

home to call the police.


       In his first two issues, appellant complains of several comments made by the State

during trial to his having “kidnaped” Coretta.1       In the first instance pointed out by

appellant, the testimony was as follows:


                                          *   *   *

       Q. Did you have any problems with that tooth that fell out before Mr. Mann
       kidnapped you?

       A. Not that particular tooth.

       Q. Do you have a loose tooth?


       1
       The jury was charged on the offenses of aggravated kidnapping and
kidnapping.

                                              2
      A. Yes, I do.

      Q. Where is that?

      A. Right here.

      Q. Could you show me?

      A. (Witness indicating.)

      Q. Way back there in the back?

      A. Uh-huh.

      Q. Did you have a problem with this tooth that fell out before he kidnapped
      and assaulted you?

      A. No.

      Mr. MCDONALD: Objection; that is an improper characterization.

      THE COURT: Repeat the question.

      Q. (By Ms. Cox:) Had you had any problems with that tooth before the
      assault, Ms. Bailey?

      A. No. The tooth on both sides of my mouth is what I had problems with.

                                       *   *   *


Sometime later, the following question was posed:


      Q. Okay. And it was about 12:30 when the police got the call. Did you do
      anything in between the time when Mr. Mann kidnapped you, from the
      moment you were back at your house?

      MR. MCDONALD: Objection; that is an improper characterization.

      THE COURT: Sustained.



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Sometime after that exchange, the prosecution again asked, “[i]s that the man that you

have identified, who assaulted and kidnapped you on the night of October 22nd”? No

objection was made to that question.


       Appellant concedes that this type of error is generally waived by the failure to

object, but argues that when the prosecution failed to heed the warning of the court, he

was put in the position of having to determine if continued objections would have only

served to preserve the detrimental effects in the mind of the jury. He also alleges that we

should find “the repetitive attempts by the prosecution to make testimonial statements in

the form of questions after conduct which indicates the State’s knowledge of the

inappropriateness of the conduct, as well as sustained objections by the trial court,”

violates his Sixth Amendment right to cross-examine and confront the witnesses.


       Asking an improper question may generally be cured by withdrawal of the question

or an instruction to disregard, unless it is clearly prejudicial to the defendant and is of such

character as to suggest the impossibility of withdrawing the impression produced on the

jurors’ minds. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), cert. denied, 529

U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000); Griffith v. State, 976 S.W.2d 241, 252

(Tex.App.--Amarillo 1998, pet. ref’d). However, to preserve error, an objection must be

made each time the improper question occurs, and when the same evidence comes in

elsewhere without objection, nothing is preserved for appellate review. Hudson v. State,

675 S.W.2d 507, 511 (Tex.Crim.App. 1984). Furthermore, the failure to request further



                                               4
relief, such as an instruction to disregard after the objection is sustained, waives the

objection. Henderson v. State, 617 S.W.2d 697, 698 (Tex.Crim.App. 1981); Mills v. State,

747 S.W.2d 818, 821-22 (Tex.App.--Dallas 1987, no pet.).


       Prior to any questions having been asked by the State in which a reference to

“kidnaping” occurred, one of the witnesses, a police officer, made the following statement

without objection: “. . . And given that, I felt it was necessary to stay with her, because if

I was to just go running and looking for him, that would leave her open, and if I could not

find Mr. Mann, he could have come around the corner, when I was gone, and either

assaulted her again or kidnapped her again.” After this incident, and prior to the instances

cited by appellant, the State asked the same witness, “[a]nd you were able to determine,

weren’t you, Officer, – were you able to determine where the assault or the kidnapping

took place”? That question was also asked without objection. Later, the State asked

Coretta the following question without objection: “[a]nd at that time, two days after this

assault took place and this kidnapping, did you give a statement, and they also took

pictures of you, correct”? Thus, the allegedly improper reference had already been used

once by a witness and at least twice by the State prior to appellant’s first objection.


       Once the specific statements complained of by appellant had finally been made and

two objections sustained, the same allegedly improper reference was made again without

objection. Thus, appellant failed to timely object and to object every time the alleged error




                                              5
occurred. Further, when he did object, he did not request an instruction to the jury to

disregard or move for a mistrial. Therefore, nothing is preserved for review.


       Although appellant argues that if he had continued to object once his two objections

had been sustained, he would merely have emphasized the remark to the jury and only

points to one additional instance in which the reference was made. While the failure to

object a third time may have been a tactical decision on the part of trial counsel which

would not constitute ineffective assistance of counsel, as appellant contends, that fact,

even if true, does not mean that error is not waived by the failure to object.


       We also note that appellant’s objection on appeal was to a violation of his Sixth

Amendment right to cross-examination, but his objection at trial was to a

mischaracterization.   Generally, the objection raised at trial must comport with the

objection raised on appeal or it is waived. See Wood v. State, 18 S.W.3d 642, 646, n.2

(Tex.Crim.App. 2000).     Finally, we note that appellant was not convicted of either

aggravated kidnapping or kidnapping, and therefore the references could not have

influenced the jury’s verdict. Appellant’s first two issues are overruled.


       In his third and fourth issues, appellant asserts the trial court erred by allowing an

improper remark by the prosecutor that reminded the jury of his failure to testify on his own

behalf in violation of the United States and Texas Constitutions. The allegedly improper

remark occurred during closing argument in the guilt-innocence phase of the trial when the

State said:


                                             6
                                         *    *   *

       He took her when he had a knife. We don’t know what happened to that
       knife. Do you know who does? This man knows what happened to the
       knife, and he is the only one.

                                         *    *   *


Appellant claims the statement was calculated to prejudice the jury by commenting on his

silence because it inferred that his refusal to testify was the reason the knife had not been

found. No objection was made to the remark.


       A comment on a defendant’s failure to testify violates both federal and state

constitutional law as well as Texas statutory law. U.S. Const. amend. V; Tex. Const. art.

1, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); see also Bustamante v.

State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001). The offending language must be viewed

from the jury’s standpoint and the implication that the comment was referring to the

defendant’s failure to testify must be clear. The test is whether the language was

manifestly intended or of such a character that the jury would necessarily and naturally

take it as a comment on the failure to testify. Bustamante, 48 S.W.3d at 765; Shelton v.

State, 10 S.W.3d 689, 698 (Tex.App.--Amarillo 1999, no pet.).


       However, a claim that the State improperly commented during closing argument on

the defendant’s failure to testify must be preserved by a timely and specific objection.

Garcia v. State, 887 S.W.2d 862, 877 (Tex.Crim.App. 1994), cert. denied, 514 U.S. 1021,

115 S.Ct. 1368, 131 L.Ed.2d 223 (1995); Saldivar v. State, 980 S.W.2d 475, 502


                                             7
(Tex.App.--Houston [14th Dist.] 1998, pet. ref’d); Nations v. State, 894 S.W.2d 480, 487

(Tex.App.--Austin 1995), vacated on other grounds, 930 S.W.2d 98 (Tex.Crim.App. 1996);

but see Campbell v. State, 900 S.W.2d 763, 768-69 (Tex.App.--Waco 1995, no pet.)

(finding the error was not waived because it was a direct violation of article 38.08 of the

Code of Criminal Procedure). No objection was made by appellant to the challenged

argument and, therefore, he failed to preserve error.


       Moreover, even if the remark was improper, it is subject to a harmless error

analysis. Washington v. State, 881 S.W.2d 187, 191-92 (Tex.App.--Houston [1st Dist.]

1994, no pet.); Hough v. State, 828 S.W.2d 97, 100 (Tex.App.--Beaumont 1992, pet. ref’d).

Generally, if the remark calls attention to the absence of evidence which only the

defendant can supply, it will result in reversal. Patrick v. State, 906 S.W.2d 481, 491

(Tex.Crim.App. 1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475

(1996). However, in this instance, it cannot be said that the remark necessarily called the

jury’s attention to the absence of evidence which only appellant could provide. While

Coretta testified that when appellant pulled her from her friend’s vehicle he had a little

knife in his hand, her friend testified he did not see one. Therefore, there was evidence

from a source other than appellant from which the jury could have believed that a knife did

not exist.


       It also cannot be said that the remark contributed to appellant’s conviction or

punishment. Appellant was not convicted of kidnapping or aggravated kidnapping, which



                                            8
required a finding that he used or threatened to use deadly force for which the existence

of a knife would have been probative evidence. He was convicted of unlawful restraint

with a finding that he recklessly exposed the victim to a substantial risk of serious bodily

injury. See Tex. Pen. Code Ann. § 20.02(a) and (c)(2)(A) (Vernon Supp. 2002). There

was testimony from Coretta’s friend that appellant threw Coretta against the witness’s car,

which caused a dent in the vehicle and by physical force appellant got Coretta in his own

vehicle. Coretta herself testified that appellant hit her in the face and on her head once

she was in his vehicle. At one point, when she tried to run away, he hit her in the stomach

very hard. He then hit her on the head and face again, and her head hit a brick wall.

Once he got Coretta into his bedroom, he struck her again on the back of her head and

the upper part of her body. Therefore, there was evidence that appellant recklessly

exposed Coretta to a substantial risk of serious bodily injury by throwing her against a

vehicle hard enough to dent it, by hitting her in the stomach, by striking her on the head,

and by hitting her head against a brick wall.


       Furthermore, because of two prior convictions, the range of punishment for the

offense was 25 years to 99 years or life in the penitentiary. There was also evidence at

the punishment hearing of nine prior judgments and convictions against appellant. The

punishment actually assessed by the jury was 40 years confinement, which is not at the

upper end of the punishment range. We therefore do not believe that the remark of the

prosecutor constitutes reversible error. Appellant’s third and fourth issues are overruled.




                                             9
      In summary, having found no reversible error, the judgment of the trial court is

affirmed.



                                              John T. Boyd
                                               Chief Justice

Do not publish.




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