Byron Andre Carroll v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 4, 2023
• Docket: 10-21-00313-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00313-CR

BYRON ANDRE CARROLL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 361st District Court Brazos County, Texas Trial Court No. 21-00992-CRF-361

MEMORANDUM OPINION

Bryon Andre Carroll was convicted of theft, under $2,500 with two or more

previous convictions and sentenced to eight years in prison. Because Carroll’s issue on

appeal does not comport with the objection raised at trial, the trial court’s judgment is

affirmed.

Carroll was caught shoplifting from a Target store. He was spotted by an asset

protection leader as soon as he walked in the store. The leader testified that he did not

approach Carroll because Carroll was a repeat offender and “when there’s somebody that steals frequently,” it is better to have law enforcement involved.

During the State’s argument, the prosecutor stated:

How in 21 seconds can you identify a person who just walked in your store? Because he recognized him. Because what Adam Smart said on the stand was that he steals frequently and he’s a repeat subject.

Carroll objected, stating: “Object to improper conclusion of testimony. I believe the

testimony that he just testified as to were Target regulations, not as to this defendant.” In

other words, Carroll complained that the State mischaracterized Smart’s testimony. The

objection was overruled. On appeal, Carroll contends the trial court abused its discretion

in overruling his objection because it interjected extraneous offense evidence which the

State had been prohibited to introduce.

Rule 33.1 applies to objections to jury argument. See Threadgill v. State, 146 S.W.3d

654, 667 (Tex. Crim. App. 2004); TEX. R. APP. P. 33.1(a). To preserve a complaint for

appellate review, the issue on appeal must comport with the objection made at trial.

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). "[A]n objection stating one

legal theory may not be used to support a different legal theory on appeal." Dixon v. State,

2 S.W.3d 263, 273 (Tex. Crim. App. 1999) (op. on reh'g). Where a trial objection does not

comport with the issue raised on appeal, the appellant has preserved nothing for review.

Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).

Carroll did not complain at trial that the State sought to introduce extraneous

offense evidence through its argument to the jury. Rather, he asserted that the State

mischaracterized the witness’s testimony. Thus, Carroll’s issue on appeal does not

comport with the objection made at trial, preserves nothing for review, and is overruled.

Carroll v. State Page 2 Having overruled Carroll’s sole issue, the trial court’s judgment is affirmed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed January 4, 2023 Do not publish [CR25]

Carroll v. State Page 3