NO. 07-01-0240-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 14, 2002

______________________________

ANDRE DUPREE RACHEL,

Appellant

v.

THE STATE OF TEXAS, 

Appellee

_________________________________

FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NO. 9956; HON. TOM NEELY, PRESIDING

_______________________________

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

Andre Dupree Rachel (appellant) pled guilty to sexual assault and was sentenced

to three years imprisonment. Via two issues, he complains that error occurred during

punishment because 1) the trial court failed to give his requested instruction to the jury

regarding probation and 2) the State improperly presented evidence regarding the victim’s

character during its case-in-chief. We affirm.

Issue 1: Denial of Requested Jury Instruction

Appellant argues that the trial court committed reversible error in refusing his
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requested instruction. He had requested the court to instruct the jury that 

If the punishment assessed by you is not more than ten years confinement

and since the Defendant has not ever been convicted of a felony in this or

any other state, you may recommend the sentence be suspended and the

Defendant placed on community supervision.

(Emphasis added). The court refused and instead instructed the jury that

If the punishment assessed by you is not more than ten years confinement

and you further find that he has not ever been convicted of a felony in this or

any other state, you may recommend the sentence be suspended and the

defendant placed on community supervision.

(Emphasis added). We overrule the issue.

As can be seen by comparison of the italicized portions of the two instructions,

appellant sought to have the trial 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.

TEX. CODE CRIM. PROC. art. 42.12, §4(e) (Vernon 2002) (stating that probation may be

granted if the defendant files a written sworn motion with the judge wherein he alleges that

he has not previously been convicted of a felony in this or any other state, and “the jury

enters in the verdict a finding that the information in the defendant’s motion is true”). Thus,

the trial court did not err in refusing to deny the jury the opportunity to grant probation by

itself making the requisite finding about appellant’s prior felony convictions. 

Issue Two: Admission of Victim Character Evidence

Appellant next contends that the trial court committed reversible error in admitting

evidence of the victim’s character and maturity when he had not put the victim’s character

or maturity in issue. We overrule the point for the following reason.

First, appellant objected to the admission of the evidence by contending that it was
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not relevant. Nothing was said by appellant about the State being prohibited from offering

evidence of the victim’s character and maturity when same has not been placed in issue.

Nor can we say from the context of the exchange between appellant and the trial court that

the latter understood that appellant questioned the admission of the evidence because it

purportedly tended to evince the victim’s character and maturity. Consequently, the

general allusion to “relevance” was not enough to preserve complaint founded upon the

specific grounds now being urged. TEX. R. APP. P.33.1(a)(1)(A); Aguilar v. State, 26

S.W.3d 901, 905-06 (Tex. Crim. App. 2000). 

Furthermore, while appellant did object to some of the evidence purportedly

illustrating the victim’s character and maturity, he did not object to all of it. Nor did he

request a running objection. So, since some evidence of the ilk about which appellant now

complains was admitted without objection, appellant againwaivedhis complaint. Ethington

v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991) (stating that a defendant must

object each time evidence on a particular subject matter is offered unless he makes a

running or continuing objection or moves the court outside the presence of the jury to

consider the admissibility of all evidence on a particular subject matter); Russell v. State,

904 S.W.2d 191, 196-97 (Tex. App.–Amarillo 1995, pet. ref’d) (stating that a party must

continue to object each time the purportedly inadmissible evidence is offered to preserve

error).

Accordingly, we affirm the judgment of the trial court.

Per Curiam
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