Christopher Carr v. State ( 2012 )


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  •                          NUMBER 13-11-00361-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    CHRISTOPHER CARR,                                                          Appellant,
    v.
    THE STATE OF TEXAS,                                                         Appellee.
    On appeal from the 130th District Court
    of Matagorda County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Vela
    Memorandum Opinion by Justice Rose Vela
    A Matagorda County grand jury indicted appellant, Christopher Carr, for nine
    counts of sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011(a) (West Supp.
    2011). The State abandoned three counts, and a jury convicted him of the remaining six.
    After finding appellant had one prior felony conviction, the jury assessed punishment for
    each offense at twenty years' imprisonment, plus a $10,000 fine. The court ordered the
    concurrent sentences in counts two, five, and eight to run consecutively with the
    concurrent sentences in counts one, four, and seven. By five issues, appellant asserts:
    (1) he received ineffective assistance of counsel; (2) the prosecutor made improper
    remarks during closing argument; (3) the State committed prosecutorial misconduct; and
    (4) the trial court improperly stacked his sentences. We affirm.
    I. FACTUAL BACKGROUND
    J.H. was fourteen years old when she began a sexual relationship with appellant.
    Prior to this relationship, she lived with her mother in Missouri and used the internet "[a]ll
    the time." She met appellant on a website called "T.S. Dating" and told him she was a
    22-year-old model. Eventually, she told him she was seventeen years old, and he
    decided to visit her in Missouri. While in Missouri, appellant and J.H. engaged in sexual
    relations.   At some point, he found out that J.H. was actually fourteen years old.
    Nevertheless, on December 18 or 19, 2009, he and J.H. went to his grandmother's house
    in Bay City, Texas where they stayed for three days. They planned to get married at
    some point in the future.
    When the prosecutor asked J.H., "So, if you were there for a period of three days,
    you said every time y'all had sex it would be vaginal sex, his [appellant's] penis in your
    vagina, and oral sex, which would be his penis in your mouth?", she said, "Yes." At that
    point, the following exchange occurred between J.H. and the prosecutor:
    Q.     And those happened the days that you were here?
    A.     Yes.
    Q.     So, the 20th and 21st and the . . . 22nd, if the 23rd was the day you
    were picked up?
    
    2 A. I
    was picked up very late on the 23rd. We had the whole day of the
    23rd.
    Q.        So, if I said the 20th, you had sexual intercourse and oral sex?
    A.        Yes.
    Q.        The 21st—
    A.        Yes.
    Q.        —sexual intercourse and oral sex, and the 22nd sexual intercourse
    and oral sex?
    A.        Yes.
    On December 23, 2009, David Maxwell, a Texas Ranger, interviewed appellant at
    the Bay City Police Department. During this interview, appellant gave Ranger Maxwell a
    written statement in which he stated, in relevant part:
    I met [J.H.] on an alternate dating site on the internet back in October
    of 2009. The name of the dating site is tsdating.com. It is a dating site for
    transsexuals. I was attracted to the site not because I have ever had a
    relationship with one but I was curious.
    [J.H.] started out by lying to me and telling me that she was a
    morphrodite. We talked back and forth on this site for a couple of weeks,
    and then she started contacting me on Yahoo Messenger. We talked back
    and forth there, and she told me that her name was Zane Tadesse. We
    progressed from talking on Yahoo to talking on the phone.
    I then found what I thought was her cousin on Myspace, and it turned
    out to be [J.H.'s] mom. Her name was [A.G.].[1] When I was talking to
    [J.H.], she told me that she was 22 years of age and put a fake picture on
    the internet. So, I did not really know what she looked like. We even
    talked on video chat and she would hide her face from me and tell me that
    she did not want me to see her because she did not have any makeup on.
    She told me that she had had bad acne.
    When I found her mom on Myspace and her profile said she had a
    1
    To protect J.H.'s mother's privacy, we will not mention her name.
    3
    daughter [J.H.] that was 17 years of age, I just knew that Zane's—I just
    knew that was Zane's real name.
    With all of this time talking to [J.H.] on the internet and the phone, I
    fell in love with her and so I wanted to travel to Missouri to see her. We
    would spend about eight hours a day talking on the phone or the internet
    each day.
    * * *
    After I found her on her mom's Myspace and found out that she was
    17 years of age, with a birthday coming up, I asked her if I could come see
    her. I did not find out that she was 14 years of age until I got to her house
    and some of her friends told me she was 14 years of age with a birthday
    coming up in January.
    When I found out that she was 14 years of age, I wanted to leave so
    badly but I was in love with her and I could not leave. I talked to [J.H.'s]
    mom and told her I wanted to marry [J.H.] and she told me that when [J.H.]
    turned 15 years of age that she would sign the consent for her to marry me.
    Her mom also consented for [J.H.] to come to Texas with me for Christmas.
    [J.H.] and I have sex at least twice a day. [J.H.'s] mom knew that we
    were having sex and that we were having sex in her house. She did not
    seem to mind. . . .
    When the prosecutor asked Ranger Maxwell, "During the course of this statement
    and during the course of your interview with him [appellant], did he admit to what would be
    criminal offenses here in the State of Texas?", he said, "Yes, he did." When asked, "And
    are those offenses sexual assaults of a child under the age of 17?", he said, "Yes."
    When the prosecutor stated, "The child being the little girl that y'all found, [J.H.]?", he
    said, "That's correct." When the prosecutor asked him, "And he [appellant] admits
    during the course of the statement and also in the interview with . . . him, . . . that he had
    been having sex with her [J.H.] here in Matagorda County?", he said, "That's correct."
    4
    The defense did not call any witnesses to testify at the guilt-innocence phase.
    II. DISCUSSION
    A. Ineffective Assistance of Counsel
    In issue one, appellant contends he received ineffective assistance of counsel.
    Appellant divides his claims of ineffective assistance of counsel into six different
    categories. We separately address each claim.
    1. Standard of Review
    "The Sixth Amendment to the United States Constitution, and section ten of Article
    1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a
    criminal prosecution." Lopez v. State, 
    343 S.W.3d 137
    , 142 (Tex. Crim. App. 2011)
    (citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires
    more than the presence of a lawyer; it necessarily requires the right to effective
    assistance." 
    Id. (citing McMann
    v. Richardson, 
    397 U.S. 759
    , 771 n.14 (1970); Powell v.
    Alabama, 
    287 U.S. 45
    , 57 (1932)). "However, the right does not provide a right to
    errorless counsel,[ 2 ] but rather to objectively reasonable representation."    
    Id. (citing Strickland
    v. Washington, 
    466 U.S. 668
    , 686 (1984)).
    "To prevail on a claim of ineffective assistance of counsel, an appellant must meet
    the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." 
    Id. "Appellant must
    show that (1) counsel's representation fell below an objective standard of
    reasonableness, and (2) the deficient performance prejudiced the defense." 
    Id. (citing Strickland
    , 466 U.S. at 689). "Unless appellant can prove both prongs, an appellate
    court must not find counsel's representation to be ineffective." 
    Id. (citing Strickland
    , 466
    2
    Robertson v. State, 
    187 S.W.3d 475
    , 483 (Tex. Crim. App. 
    2006). 5 U.S. at 687
    ).      "In order to satisfy the first prong, appellant must prove, by a
    preponderance of the evidence, that trial counsel's performance fell below an objective
    standard of reasonableness under the prevailing professional norms." 
    Id. "To prove
    prejudice, appellant must show that there is a reasonable probability, or a probability
    sufficient to undermine confidence in the outcome, that the result of the proceeding would
    have been different." 
    Id. (citing Strickland
    , 466 U.S. at 687).
    "An appellate court must make a 'strong presumption that counsel's performance
    fell within the wide range of reasonably professional assistance.'" 
    Id. (quoting Robertson
    v. State, 
    187 S.W.3d 475
    , 483 (Tex. Crim. App. 2006) (citing 
    Strickland, 466 U.S. at 689
    )).
    "In order for an appellate court to find that counsel was ineffective, counsel's deficiency
    must be affirmatively demonstrated in the trial record; the court must not engage in
    retrospective speculation." 
    Id. (citing Thompson
    v. State, 
    9 S.W.3d 808
    , 813 (Tex. Crim.
    App. 1999)). "'It is not sufficient that appellant show, with the benefit of hindsight, that his
    counsel's actions or omissions during trial were merely of questionable competence.'"
    
    Id. at 142–43
    (quoting Mata v. State, 
    226 S.W.3d 425
    , 430 (Tex. Crim. App. 2007)).
    "When such direct evidence is not available, we will assume that counsel had a strategy if
    any reasonably sound strategic motivation can be imagined." 
    Id. at 143
    (citing Garcia v.
    State, 
    57 S.W.3d 436
    , 440 (Tex. Crim. App. 2001)). "In making an assessment of
    effective assistance of counsel, an appellate court must review the totality of the
    representation and the circumstances of each case without the benefit of hindsight." 
    Id. (citing Robertson,
    187 S.W.3d at 483).
    6
    The court of criminal appeals "has repeatedly stated that claims of ineffective
    assistance of counsel are generally not successful on direct appeal and are more
    appropriately urged in a hearing on an application for a writ of habeas corpus." 
    Id. (citing Bone
    v. State, 
    77 S.W.3d 828
    , 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State,
    
    68 S.W.3d 640
    , 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 
    149 S.W.3d 125
    , 131
    (Tex. Crim. App. 2004). "On direct appeal, the record is usually inadequately developed
    and 'cannot adequately reflect the failings of trial counsel' for an appellate court 'to fairly
    evaluate the merits of such a serious allegation.'" 
    Id. (quoting Bone,
    77 S.W.3d at 833).
    Claims of Ineffectiveness
    1. Opening the Door to Appellant's Criminal History
    Appellant contends defense counsel was ineffective because he "open[ed] the
    door" to appellant's two prior convictions for injury to a child. During his guilt-innocence
    opening statement, defense counsel provided a chronological rendition of what he
    believed the evidence would show. Afterwards, he told the jury, in relevant part:
    Now, there is more to this story than what I have just talked to you
    about. There is a history for which this man [appellant] served a significant
    amount of time in prison, some seven, eight years ago. He entered into an
    agreement with the State, this district attorney's office. Said, "I'll take my
    time. After, I was sick. It was a horrible thing." And he did. And he got
    counseling and he got medication and he got many, many, many, many
    days to think about the horrible thing that he did. So, I'm not going to tell
    you it's all roses. But we're here on this case to determine whether he did
    it, . . . .
    After both sides completed opening remarks, the trial court held a hearing outside
    the jury's presence during which the prosecutor argued defense counsel had opened the
    door to appellant's prior convictions. The trial court agreed.
    7
    Even assuming defense counsel's performance was deficient because he
    opened the door to appellant's prior convictions, appellant has failed to satisfy the second
    prong of the two-part Strickland test, because he has not shown how his defense
    counsel's deficient performance prejudiced his defense. See 
    Strickland, 466 U.S. at 688
    .
    2. Introduction of Judgments of Conviction for Injury to a Child
    Second, appellant contends defense counsel was ineffective because he
    introduced two judgments in evidence, showing appellant had two prior convictions for
    injury to a child. While cross-examining Ranger Maxwell at the guilt-innocence phase,
    defense counsel introduced in evidence two judgments, showing appellant had two
    previous convictions for injury to a child. Each judgment shows appellant pleaded guilty
    to the offenses of injury to a child.
    Even assuming defense counsel's performance was deficient because he
    introduced the judgments of conviction into evidence, appellant has failed to satisfy the
    second prong of the two-part Strickland test, because he has not shown how his defense
    counsel's deficient performance prejudiced his defense. See 
    Strickland, 466 U.S. at 688
    .
    3. Opening Statement at Guilt-Innocence Phase
    Third, appellant contends defense counsel was ineffective because he allegedly
    conceded appellant's guilt during his guilt-innocence opening statement. Appellant calls
    our attention to the following remarks made by defense counsel: "So, he [appellant] gets
    on a bus; and he comes up to meet her [J.H.] in Missouri. They meet. They spend the
    8
    weekend . . . at a hotel. They played games, and then they may have committed sex at
    that time. I think it's pretty clear that they did. In fact, I think my client admitted it in his
    statement that he gave to someone in the State of Missouri." Later during his opening
    statement, defense counsel told the jury, in relevant part, "Now, in a nutshell . . . we have
    deception and lies, resulting in consensual sex, . . . ."
    The record is silent concerning defense counsel's motive for conceding that
    appellant had a sexual relationship with J.H. However, the evidence against appellant
    was strong. J.H. testified she and appellant had sex on three different days while they
    were in Bay City, Texas. Appellant confessed to Ranger Maxwell that he and J.H. had
    sex while in Matagorda County. Thus, defense counsel, knowing that the evidence
    would show J.H. was fourteen years old when she and appellant had sex in Matagorda
    County, could have been trying to minimize appellant's culpability by telling the jury that
    appellant and J.H. did have sex, but it was consensual, and J.H. had lied to appellant
    about her age.
    4. Failure to Object
    Fourth, appellant contends defense counsel was ineffective because he failed to
    object to:   (1) the prosecutor referring to appellant as an "ex-con"; (2) references
    regarding the details of his prior convictions for injury to a child; and (3) the prosecutor's
    "suggestion" that he was a "child molester." We address each complaint separately.
    a. Referring to Appellant as an Ex-Con
    The record is silent concerning why defense counsel did not object when the
    prosecutor referred to appellant as an ex-con. However, a possible strategy is that
    9
    defense counsel may have believed that if he objected each time the prosecutor referred
    to appellant as an ex-con, he would draw the jury's attention to that fact, even if the trial
    court sustained his objections.
    b. References to the Details of Appellant's Prior Convictions for Injury to a
    child
    During the State's guilt-innocence case-in-chief, the prosecutor elicited testimony
    from Susan Maxwell, an investigator for the Matagorda County District Attorney's Office,
    and from Ranger Maxwell, showing: (1) appellant had a prior conviction for injury to a
    child that resulted in his imprisonment; and (2) the child victim was two years old. In
    addition, the prosecutor asked Ranger Maxwell what injuries the child victim suffered.
    The prosecutor let Ranger Maxwell examine the court's files regarding appellant's two
    prior felony convictions for injury to a child and then asked him:
    Q.     [C]an you tell us the . . . injury that caused the defendant to end up in
    T.D.C.?
    A.     Yes. It states that it was a serious bodily injury to [E.C.], a child of
    14 years of age or younger, by striking her with his hands with an
    unknown object rupturing her eardrum.
    * * *
    Q.     I don't think we talked about the other case, that would have
    been—this is the Cause 130.
    A.     Yes. Would you like me to read it?
    Q.     Uh-huh.
    A.     "Did intentionally and knowingly cause bodily injury to [E.C.], a child
    of 14 years of age or younger, by biting her arm with his teeth."
    10
    In addition, appellant calls our attention to the prosecutor's direct-examination of
    J.H. and appellant's sister, Sarah Schafer.              During the guilt-innocence phase, the
    prosecutor asked J.H.: "What did he [appellant] tell you about why he had been in
    prison?" To this, J.H. replied, "He had told me that he had gotten very angry with a
    young girl and he had severely damaged her arm." Also during the guilt-innocence
    phase, the prosecutor asked Schafer: "Did you ever know of a situation, a time in which
    he [appellant] went to prison?" She replied, "Eventually, . . . ." She stated the victim of
    the offenses for which appellant went to prison was a girl "[a]bout 3 years old."
    The record is silent concerning why defense counsel did not object to the
    prosecutor's elicitation of the details of appellant's prior convictions.                 However, a
    possible trial strategy is that defense counsel may have believed that if he objected when
    a reference was made to the details of appellant's prior convictions, he would draw the
    jury's attention to those details, even if the trial court sustained his objections.
    c. Suggestion that Appellant was a Child Molester
    During the punishment phase, appellant's ex-girlfriend, R.P., testified that while
    she and appellant lived together, he tied her to the bed and left the bedroom. When he
    returned, he untied her, and she saw he was "sweaty." Appellant directs our attention to
    the following exchange between himself and the prosecutor:
    Q.      Why did you tie [R.P.] to the bed and come back sweaty?
    A.      [B]ecause we were about to have sex and she asked me to do that.
    I never in my life touched [E.C.][3] or any other child.
    Q.      Don't you talk to people about the fact that your mother sexually
    3
    The punishment evidence showed that E.C. is R.P.'s biological daughter, who lived with R.P. and
    appellant before appellant met J.H.
    11
    abused you? You've been talking about all these things that
    genetically go from one person to another.
    A.       Bipolar disorder.
    Q.       Don't you talk . . . to people about the fact that your mother sexually
    abused you?
    A.       Yes.
    * * *
    Q.       And you and I both know you're a smart guy; that sexual abuse is
    something that runs in families as well.
    A.       I have never in my life touched a child like that.
    Q.       So, you never sexually abused [E.C.]?
    A.       No.
    Appellant contends defense counsel should have objected to this colloquy and
    asserts that the prosecutor's comment that sexual abuse "runs in families" along with the
    fact that appellant's mother sexually abused him constitute a "suggestion" by the
    prosecutor that he "was a child molester[.]" The record is silent regarding why defense
    counsel did not object to the above-quoted exchange.                However, the punishment
    evidence showed appellant physically abused E.C. on numerous occasions. A possible
    trial strategy is that defense counsel decided to let appellant answer the prosecutor's
    questions so he could deny in front of the jury that he sexually abused E.C. This showed
    that even though appellant physically abused E.C., he did not sexually abuse her.
    5. Closing Argument
    Fifth,    appellant     contends    defense     counsel       was   ineffective    during
    punishment-phase closing argument because he injected his personal opinion that
    12
    appellant should have served more time in prison for his prior convictions for injury to a
    child. Specifically, appellant directs our attention to the following italicized remarks,
    which we put in context:
    [I]n . . . 2005, in March, he [appellant], in this court, enters a plea and
    announces to the court, "How do you plead to the charges brought against
    you for injury to this child?" "I plead guilty, your Honor."
    Two counts backed up by a statement, backed up by these pictures.
    . . . [A]nd the district attorney says okay, we're going to do this if the judge
    will accept it.
    The court . . . reviews it and accepts it. . . .
    My client, as he should, as he darn well should, he goes to prison
    and he's there for about—a little short of 2,000 days. Probably not enough.
    ...
    Defense counsel's reason for making the complained-of comment does not appear
    in the record. However, his strategy may have been to argue to the jury: (1) that
    appellant pleaded guilty to the two prior charges of injury to a child because the district
    attorney offered him a deal, which the trial court approved; and (2) this deal did not
    include enough prison time, which appellant needed for rehabilitation. This strategy
    allowed defense counsel to mitigate appellant's responsibility for committing the
    sexual-assault offenses against J.H. by shifting some of the blame for his conduct to the
    district attorney, for offering appellant a deal that included minimal prison time for two
    first-degree felony convictions, and to the judge for approving the deal.
    In each of the five aforementioned allegations of ineffective assistance of counsel,
    the record is silent about defense counsel's reasons for his conduct, and a possible trial
    strategy exists for his actions. When, as in this case, "counsel's reasons for his conduct
    13
    do not appear in the record and there is at least the possibility that the conduct could have
    been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an
    ineffective assistance claim on direct appeal." Ortiz v. State, 
    93 S.W.3d 79
    , 88-89 (Tex.
    Crim. App. 2002). Based on this record, we cannot conclude that defense counsel's
    performance fell below an objective standard of reasonableness. See Rylander v. State,
    
    101 S.W.3d 107
    , 111 (Tex. Crim. App. 2003). Even assuming defense counsel was
    deficient, appellant has failed to prove there is a reasonable probability that, but for
    defense counsel's deficiency, the result of the trial would have been different.         See
    
    Strickland, 466 U.S. at 687
    .
    6. Failure to Request a Limiting Instruction
    Sixth, appellant contends defense counsel was ineffective because he failed to
    request a limiting instruction concerning extraneous conduct and testimony regarding his
    prior convictions for injury to a child.    In the guilt-innocence charge, the trial court
    instructed the jury, in relevant part:
    There has been introduced evidence of extraneous crimes or bad acts other
    than the one charged in the indictment in this case. This evidence was
    admitted only for the purpose of assisting you, if it does, for the purpose of
    showing the defendant's motive, opportunity, intent, preparation, plan,
    knowledge, identity, or absence of mistake or accident, if any. You cannot
    consider the testimony unless you find and believe beyond a reasonable
    doubt that the defendant committed these acts, if any, were committed.
    Absent evidence to the contrary, we presume the jury followed the trial court's
    instructions as set forth in the charge. See Resendiz v. State, 
    112 S.W.3d 541
    , 546
    (Tex. Crim. App. 2003). Even assuming defense counsel was deficient for failing to
    request limiting instructions, appellant has failed to prove there is a reasonable probability
    14
    that, but for defense counsel's deficiency, the result of the trial would have been different.
    See 
    Strickland, 466 U.S. at 687
    . Issue one is overruled.
    B. State's Closing Arguments
    In issues two and three, appellant contends the prosecutor made improper
    remarks during closing argument at both phases of trial.
    1. Guilt-Innocence Phase
    During   the   guilt-innocence    phase,   the   prosecutor made       the following
    complained-of argument: "This little girl [J.H.] is not the first girl he's [appellant] met
    online and gone to another state to see. She's the second that we know about."
    2. Punishment Phase
    During the punishment phase, the prosecutor made the following complained-of
    argument: "You know, a picture is worth a thousand words; but I think these pictures of
    [E.C.] are worth a lot more. If nothing else, hold him [appellant] accountable for what he
    did to that little girl [E.C.] in the one month she was dependent on him."
    3. Preservation of Error
    Appellant did not object to the above-quoted remarks. When a defendant fails to
    object to jury argument, he forfeits his right to raise the issue on appeal, even if the issue
    is constitutional in nature. Threadgill v. State, 
    146 S.W.3d 654
    , 670 (Tex. Crim. App.
    2004); Cockrell v. State, 
    933 S.W.2d 73
    , 89 (Tex. Crim. App. 1996).               Therefore,
    appellant waived error, if any, in these portions of the State's closing arguments. Issues
    two and three are overruled.
    15
    C. Prosecutorial Misconduct
    In issue four, appellant contends the State committed prosecutorial misconduct by
    trying him as a "criminal generally," rather than for sexual assault of a child. During the
    State's punishment-phase closing argument, the prosecutor argued to the jury:
    You know, since December 23rd, 2009, when the name Chris Carr
    came to the forefront again, I've been waiting for right now, for this very
    second.
    You know what I wanted to say? I gotcha Chris Carr, I gotcha. We
    gotcha. Today is going to be your day, right now, right this very second.
    Now, [defense counsel] when he was talking about pleading him
    [appellant] to five years back then and talking about Steven Reis[4] if you
    look back through the papers on there, Steven Reis' name is not on it.
    Carla Post is the one who signed the plea bargain agreement[5] with this
    defendant.
    * * *
    Because back in 2005 when this defendant must have skipped out of
    the courtroom with his five-year deal, we had a very injured 2-year-old
    non-verbal, a codefendant [R.P.] who wouldn't talk against him [appellant],
    and an injured child. And at that point the best thing we could do was get a
    little bit—a small pound of flesh from each of those defendants and we took
    that choice. We took the choice to take the five years.
    At that point, defense counsel stated, "Your Honor, I'm going to object to this line of
    arguing. It's not in evidence. It's improper." The trial court overruled the objection.
    The court of criminal appeals has stated that to preserve error for appellate review,
    a party's point of error on appeal must comport with the objection made at trial. Wilson v.
    State, 
    71 S.W.3d 346
    , 349 (Tex. Crim. App. 2002); see also Braxton v. State, 
    909 S.W.2d 4
                Steven Reis is the current Matagorda County District Attorney.
    5
    This reference is to the plea-bargain agreement involving appellant's two prior convictions for
    injury to a child.
    16
    912, 918 (Tex. Crim. App. 1995) (stating that point of error raised on appeal must
    correspond to objection made at trial). Here, the point of error on appeal is that the State
    engaged in prosecutorial misconduct by trying appellant as a criminal generally.
    However, appellant's trial objection was that the prosecutor's closing argument was "not
    in evidence" and "improper." Accordingly, this complaint is not preserved because the
    point of error on appeal does not correspond to the trial objection. See 
    Wilson, 71 S.W.3d at 349
    ; 
    Braxton, 909 S.W.2d at 918
    .
    After the trial court overruled the aforementioned objection, the prosecutor
    continued her argument as follows:
    They don't want you to know that. That's the truth of the matter. This
    defendant was represented by Richard Manske, an attorney who's been
    practicing back then as long as [defense counsel] has. You think they
    didn't know the problems with our case back then? Heck, yeah, they did.
    * * *
    So, don't talk to me about not holding him [appellant] accountable for
    things that happened in the past.
    * * *
    I want us to scream at him [appellant]. You get life in prison, Chris Carr,
    for what you've done in our community. . . .
    Appellant did not object to this portion of the argument. "As a prerequisite to
    presenting a complaint on appeal, a party must have made a timely and specific request,
    objection, or motion to the trial court."   Grant v. State, 
    345 S.W.3d 509
    , 512 (Tex.
    App.—Waco 2011, pet. ref'd) (citing TEX. R. APP. P. 33.1(a)(1)(A)).            Because no
    objection, request, or motion was made concerning the above argument, the complaint is
    not preserved for appellate review.
    17
    Next, appellant directs us to the prosecutor's cross-examination of appellant at the
    punishment phase:
    Q.        You . . . spent a lot of time talking to this jury about the fact that your
    father died, your mom left when you guys were young, you were off
    your meds at the time, as a result of some of the things that
    happened in your life you've become suicidal. Why are you telling
    us all this stuff?
    A.        Because.
    Q.        Because why?
    A.        That's how I feel about [E.C.]. I want to die.
    Q.        You want to die?
    A.        Yeah.
    Q.        Well, sadly, death isn't in the punishment range that we're allowed to
    give here in this courtroom. . . .
    * * *
    Q.        You served almost your full five years?[6]
    A.        I served my entire five years.
    Q.        Do you know that the parole board got a copy of this letter where you
    said that it made you happy?
    * * *
    Does it make you madder at me?
    A.        No, not really angry at you.
    Q.        You're not?
    A.        I'm not really angry at you.
    Q.        You're not really angry at me. You changed your mind?
    6
    The prosecutor is referring to the sentence appellant served for the offenses of injury to a child.
    
    18 A. I
    can't be. The only reason you're here is because I did what I did.
    * * *
    Q.     Did you hit her [E.C.] with anything besides your fist?
    A.     No.
    Q.     Kick her?
    A.     No.
    Q.     I know you did. You might as well tell us.
    A.     No.
    * * *
    Q.     Are you getting angry with me now?
    A.     No. I'm angry with myself.
    In all of these instances, no objection was made either to the prosecutor's
    questions or to appellant's responses. Thus, error, if any, is not preserved for appellate
    review. See TEX. R. APP. P. 33.1(a)(1)(A); 
    Grant, 345 S.W.3d at 912
    .
    In addition, appellant calls our attention to the following exchange between him
    and the prosecutor at the punishment phase:
    Q.     Did you think that you had almost killed her [E.C.]?
    A.     [T]ruthfully, if I had known it was that bad, I wouldn't be here right
    now.
    A.     I know you keep talking about the fact that you're suicidal; but,
    frankly, I've never seen you actually try—
    At that point, defense counsel stated, "Judge, is that a question or sidebar? Object to it."
    The trial court sustained the objection. The point of error on appeal is that the State
    19
    engaged in prosecutorial misconduct by trying appellant as a criminal generally; however,
    appellant's objection was that the prosecutor's question amounted to "sidebar."
    Accordingly, this complaint is not preserved because the point of error on appeal does not
    correspond to the trial objection. See 
    Wilson, 71 S.W.3d at 349
    ; 
    Braxton, 909 S.W.2d at 918
    .
    Lastly, appellant calls our attention to the prosecutor's closing remarks at the
    guilt-innocence phase:
    You know, it's funny to me that he [defense counsel] is now calling
    the defendant not a criminal. The defendant has been to prison out of this
    court for two offenses involving injuring a small child, causing serious bodily
    injury to a child who was less than 3 years old.
    * * *
    This ain't his first rodeo. What you have sitting right here, this
    defendant, Christopher Carr is an ex-con. You have a 25-year-old ex-con
    who paroled out of prison to our county, who spends all his time apparently
    surfing porn sites on the internet.
    * * *
    This little girl is not the first girl he's met online and gone to another
    state to see. She's the second that we know about.
    Because no objection was made to this argument, appellant forfeits his right to
    raise the issue on appeal, even if the issue is constitutional in nature. See 
    Threadgill, 146 S.W.3d at 670
    ; 
    Cockrell, 933 S.W.2d at 89
    . Therefore, appellant waived any error in
    this portion of the State's closing argument. Issue four is overruled.
    D. Stacking of Sentences
    In issue five, appellant contends the trial court erred by improperly cumulating his
    sentences. The jury returned a verdict of guilty on counts one, two, four, five, seven, and
    20
    eight. On the State's motion, the trial court ordered that; (1) counts two, five, and eight
    "run concurrently with each other"; (2) counts one, four, and seven "run concurrently with
    each other"; (3) the concurrent sentences in counts two, five, and eight "run consecutively
    to the concurrent sentences" in counts one, four, and seven; and (4) the concurrent
    sentences of counts two, five, and eight "shall begin only when the judgment and
    concurrent sentences in counts one, four, and seven have ceased to operate."
    Texas trial courts have the discretion to order cumulative sentences in virtually
    every case. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2011); Millstagle
    v. State, 
    150 S.W.3d 781
    , 784 (Tex. App.—Austin 2004, pet. dism'd untimely filed).
    However, when multiple offenses arising out of the same criminal episode are
    consolidated for a single trial, and the defendant is found guilty of more than one offense,
    Section 3.03(a)7 of the Texas Penal Code limits the trial court's discretion to cumulate the
    sentences. 
    Millstagle, 150 S.W.3d at 784
    . Section 3.03(b)(2)(A) creates an exception
    to this exception; that is, it exempts certain offenses, including sexual assault of a child,
    from the application of Section 3.03(a). See TEX. PENAL CODE ANN. § 3.03(b)(2)(A)
    (West 2011).
    Until 1995, Section 3.03 required sentences for multiple offenses prosecuted in a
    single trial to run concurrently.       See DeLeon v. State, 
    294 S.W.3d 742
    , 745 (Tex.
    App.—Amarillo 2009, pet. ref'd). In that year, the Texas Legislature amended Section
    7
    Section 3.03(a) provides:
    When the accused is found guilty of more than one offense arising out of the same criminal
    episode prosecuted in a single criminal action, a sentence for each offense for which he
    has been found guilty shall be pronounced. Except as provided by Subsection (b), the
    sentences shall run concurrently.
    TEX. PENAL CODE ANN. § 3.03(a) (West Supp. 2011).
    21
    3.03 to restore the trial court's discretion to impose consecutive sentences for multiple
    intoxication manslaughter convictions resulting from a single trial. See Act of May 26,
    1995, 74th Leg., R.S., ch. 596, § 1, 3435, 3435; 
    DeLeon, 294 S.W.3d at 745
    . In 1997,
    the Texas Legislature further amended Section 3.03 to add some sexual offenses
    committed against a victim younger than seventeen to the list of offenses subject to
    consecutive sentencing when there are multiple convictions in a single trial. Those
    offenses include sexual assault of a child. See Act of May 31, 1997, 75th Leg., R.S., ch.
    667, § 2, 2250, 2251.      
    DeLeon, 294 S.W.3d at 745
    . Those amendments became
    effective on September 1, 1997 and applied to offenses committed on or after the
    effective date of the Act. See Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 2252,
    2253.
    In DeLeon, the State prosecuted the defendant for offenses during a criminal
    episode spanning eight years and comprising aggravated sexual assault, sexual assault,
    and indecency with a child. 
    DeLeon, 294 S.W.3d at 744
    . DeLeon received concurrent
    sentences of imprisonment for offenses committed before September 1, 1997, and
    consecutive sentences of imprisonment for offenses committed after that date. 
    Id. The DeLeon
    court considered the issue of the trial court's discretion with regard to
    consecutive sentencing when Section 3.03(b) offenses committed after the effective date
    of the 1997 amendment are tried together with such offenses committed before the
    effective date. The court stated:
    We think the answer to the question presented is found in the statutory
    language establishing the effective date of the 1997 amendment to section
    3.03. As the Court of Criminal Appeals pointed out in 
    Bahena, 195 S.W.3d at 705
    , the legislature used different "effective dates" language in the 1995
    22
    and 1997 amendments. The legislature made the 1995 amendment,
    permitting consecutive sentences for multiple intoxication manslaughter
    convictions, applicable only if each offense joined for trial was committed on
    or after the amendment's effective date, September 1, 1995. The effective
    date language of the 1997 amendment does not contain such a provision.
    The 1997 statute simply states that its change in law applies only to "an
    offense committed on or after" its effective date, September 1, 1997, and
    that offenses committed before that date are subject to the law in effect
    when the offense was committed. Act of May 31, 1997, 75th Leg., R.S.,
    ch. 667, §§ 7, 8, 2250, 2252-53. (footnotes omitted).
    
    DeLeon, 294 S.W.3d at 746
    –47.         The DeLeon court found that the trial court had
    discretion to cumulate sentences for the offense committed after September 1, 1997. 
    Id. at 749.
    In the instant case, all of the offenses occurred after September 1, 1997 when J.H.
    was younger than seventeen years old. Thus, we hold that the trial court did not abuse
    its discretion by ordering the concurrent sentences in counts two, five, and eight to run
    consecutively with the concurrent sentences in counts one, four, and seven. Issue five is
    overruled.
    III. CONCLUSION
    We affirm the judgment of the trial court.
    ROSE VELA
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    13th day of December, 2012.
    23