ROGER MILLER v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Morris

In this case, Roger Miller pleaded guilty to the offense of aggravated sexual assault of a child.   After hearing evidence, the trial court sentenced appellant to forty years in prison.   In one issue, appellant asserts the trial court abused its discretion in admitting irrelevant evidence about a third party's abuse of the complainant.   We affirm.

Evidence showed appellant sexually assaulted R.K.M. multiple times over a three-year period beginning when R.K.M. was eight years old.   At the sentencing hearing, R.K.M.'s mother testified the allegations against appellant came to light after she learned R.K.M. had been sexually assaulted by an unrelated third party, Chance Owen. R.K.M.'s mother testified Owen had “done some things” to her child;  Owen had been charged with aggravated sexual assault;  the charge was pending;  and a trial date was set.   Appellant did not object to any of this testimony.   Then, four questions later,

the prosecutor again asked if charges had been filed against Owen, and defense counsel objected “to any questioning regarding something that has nothing to do with this offense.”   The trial court overruled the objection, and R.K.M.'s mother responded affirmatively.

On appeal, appellant contends the trial court abused its discretion by admitting evidence of the alleged abuse by Owen and Owen's criminal status, arguing it was irrelevant and prejudicial.

To preserve error in admitting evidence, a party must lodge a timely and specific objection and obtain an adverse ruling.  Tex.R.App. P. 33.1(a);  Fuller v. State, 253 S.W.3d 220, 232 (Tex.Crim.App.2008).   An objection is timely if it comes at the earliest opportunity or as soon as the ground for objection becomes apparent.  Moore v. State, 999 S.W.2d 385, 403 (Tex.Crim.App.1999).   An objection made after the prosecutor has elicited the testimony typically comes too late.  Cruz v. State, 238 S.W.3d 381, 385 (Tex.App.-Houston [1 st Dist.] 2006, pet. ref'd).

Here, appellant failed to preserve his complaint for appellate review because his objection came too late.   By the time appellant lodged his objection, R.K.M.'s mother had already testified Owen was charged with the aggravated sexual assault of R.K.M. and a trial date was set.   We overrule the sole issue.

We affirm the trial court's judgment.

JOSEPH B. MORRIS JUSTICE