Jeffrey David Baxter v. Shannon Kathleen Baxter

• Court: Court of Appeals of Texas
• Decided: October 23, 2007
• Docket: 07-07-00293-CV
• Status: Published

Opinion

NO. 07-07-0293-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 23, 2007

______________________________

JEFFREY DAVID BAXTER, APPELLANT

V.

SHANNON KATHLEEN BAXTER, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NUMBER ONE OF WILLIAMSON COUNTY;

NO. 05-2558-FC1; HONORABLE SUZANNE BROOKS, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Pending before this Court is Jeffrey David Baxter’s Amended Motion to Dismiss this appeal.  The certificate of conference reflects that Shannon Kathleen Baxter is not opposed to the motion being granted.  Without passing on the merits of the appeal, Jeffrey David Baxter’s motion is granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.1(a)(1).  Having dismissed the appeal at Mr. Baxter’s request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Patrick A. Pirtle

     Justice

Appellee

FROM THE 137th DISTRICT COURT OF LUBBOCK COUNTY;

NO.  2004-406,339; HON. CECIL G. PURYEAR, PRESIDING

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

In one issue, appellant Layfette Junior Robinson, III, a/k/a Layfette Robinson, Jr., appeals his conviction for aggravated sexual assault.  In that issue, he argues that the trial court erred in denying the admission of evidence that the child victim had masturbated.  We affirm the judgment of the trial court.

To preserve a complaint for appellate review, a party must object and obtain an adverse ruling from the trial court.   Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004); Lusk v. State, 82 S.W.3d 57, 60 (Tex. App. – Amarillo 2002, pet. ref’d).  In this case, the trial court did not deny admission of the evidence in question.  Rather, it specifically ruled it would admit same but also allow the State to present rebuttal evidence of an extraneous act by appellant committed on the victim. ^{(footnote: 1)}  Though appellant now argues that admission of the evidence could not be so conditioned, he uttered no objection below.  Having failed to object to the trial court’s decision, appellant did not preserve his complaint for review.   Tex. R. App. P. 33.1(a) (requiring that a complaint be made to the trial court by a timely request, objection, or motion that states the grounds for the ruling that the complaining party sought with sufficient specificity to make the trial court aware of the complaint).  So too did he waive it by failing to present the grounds underlying his current argument to the trial court.   See Webb v. State, 899 S.W.2d 814, 817-18 (Tex. App. – Waco 1995, pet. ref’d) (holding that the grounds underlying the complaint on appeal must also be raised at trial, otherwise they are waived).

Accordingly, we overrule the issue and affirm the judgment.

Brian Quinn

         Chief Justice

Do not publish.

FOOTNOTES

1: