NO. 07-01-0240 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D MAY 14, 2002

______________________________ ANDRE DUPRE E RACH EL, Appellant
v. THE STATE OF TEXAS , Appellee

_________________________________ FROM THE 46 TH DISTRICT COURT OF W ILBARGER COUNT Y;

NO. 9956; HON. TOM NEELY, PRESIDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Andre Dupree Rachel (appellant) pled guil ty to sex ual assault and was sentenced to three years i mprisonment. Via two issues, he c omplains that error occ urred during punishment

be cause 1) the trial court failed to givehis reques ted instr uction tothe j ury regarding probation and 2) the State improperly pre sented evide nce regardi ng the victi m’s ch ar ac te r d ur i ng i ts ca se -i n- ch i ef . W e a ff i rm.

Issu e 1: Den ial of Request ed Jur y I nstr uction Appellant argues that the trial court com mitted revers ible error in r efu sing his2

requested instruction. He had requested the court to instruct thejury tha t If the punishm ent assessed by you is not m ore than ten years confinem ent and since the D efendant has not ever b een convi cted of a felony

in thi s or any other state , you m ay recom mend the sentence be sus pended and the Defendant placed on com munity s upervision. (Em phasis added). The court refused an d instead instructed the j ury that If the punishm ent assessed by you is not m ore than ten years conf inement and you further fi

nd that he has not ever been co nvicte d of a felony i n this or any other state , you m ay recom mend the sentence be sus pended and the defendant placed on com munity s upervision. (Em phasis added). We overrule the i ssue. As can be seen by comparison of the italicized portions of the two instr uct ions, appellant sought to have thetrial court find that he previously had not been convicted of a felony and so instruct the jury . However, statute requires the jury to make that finding

. T EX . C ODE C R IM . P ROC
. art. 42.12, §4(e) (Vernon 2002) (stating that probation m ay be granted if the defendant files a written sw orn mo tion with the judgewherein he alleges that he has not

previously been convicted of a felony in this or an y other state, and “thejur

y enters in the verdict a finding that the information in the defendant ’s m otion is true”) . Thus, the trial court

did not err in refusing to deny the j ury the opportunity to grant probation by itself making the requisite finding about appellant’s prior felony convictions.

IssueTwo: Admission of V ictim Ch aracter E vidence Appellant next co ntends that the trial court com mitted revers ible error in admitting evidence of the victim ’s character and m aturity when he had not put the victim ’s character or mat urity in issue. W e overrule the point for the following reason. First, appellant objected to t he adm ission of the evidence by contending thatit was3

notrelevant. Nothing was said by appellant about the State being prohibited from offering evidence of the victim’s character and m aturity when sam e has not been placed in issue. Nor can we say from the contex t of the exchange between appellant and the trial court that the latter understood that appellant questioned the admission of the evi dence bec aus e it pur por ted lytended to evin ce the victim’s character and m aturity. Consequently, the general allusion to “relevance” was not enough to preserve complaint founded upon t he spe cif icgrounds now

being urged. T EX . R. A PP . P.33.1(a)(1)(A); Aguil ar v. State , 2 6 S.W.3d 901, 905-06 (Tex. Crim . App. 2000). Furthermore, w hil e ap pell ant did o bj ect

to s om e of

the evid enc e pu rpo rte dly illustrating the vict im’ s chara cter and ma turity, he did not objec t to all of it. Nor did he request a running objection. So, since some evidence of the il k about which appellant now
com plains was adm itted without obj ection, appellant agai n waived hi s com plaint. Ethi ngton v. State , 8 19 S.W .2 d 8 54 , 8 58 -5 9 ( Te x. Crim. A pp. 1991) (stating that a defendant must object each t ime evidence on a par ticular sub

jec t m atter is offered u nless he makes a running or continuing objection or m oves the court outs ide the p resen ce of the j ury to consider the adm issibili ty of all

evidenceon a par

ticular sub

jec t m atter); Russell v

. State , 904 S.W .2d 191, 196-97 (Tex. App.–Amarillo 1995 , pet. ref’d) (stat ing that a par ty must continue to object

each time the purportedl y inadmissibl e evidence i s offered to prese rve error). Accordingly, we af firm the j udgme nt of the trial court.

Per Curiam4

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