Before QUINN and REAVIS and CAMPBELL, JJ.

Following a plea of not guilty, appellant Guadalupe Vasquez was convicted by a jury of aggravated assault on a public servant and punishment was assessed at 99 years confinement. The appellate record has been filed; appellant's brief was due on December 3, 2004, but has yet to be filed. Attorney of record, Richard L. Wardroup, was notified by letter of the deficiency and in response, attorney Jesse Mendez filed a motion to substitute counsel and a motion for extension of time in which to file appellant's brief. We abate the appeal and remand the cause for further proceedings.

According to the clerk's record, appellant has been represented by at least four court-appointed attorneys, the fourth being Wardroup. Mendez represents in the motion to substitute counsel that appellant desires to retain him and that Wardroup does not object.

The trial court has the responsibility for appointing counsel to represent indigent defendants, as well as the authority to relieve or replace counsel. Tex. Code Crim. Proc. Ann. art. 1.051(d) (Vernon Supp. 2004); see also Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.-Waco 1999, no pet.). Further, the trial court retains authority to appoint or substitute counsel even after the appellate record has been filed. Enriquez, 999 S.W.2d at 908. Considering that Wardroup was appointed by the trial court and regardless of whether appellant can now retain his own attorney, we now abate the appeal and remand the cause to the trial court for consideration of the motion to substitute.

Upon remand the trial court shall immediately cause notice of a hearing to be given and, thereafter conduct a hearing to determine the following:

• whether to grant the motion to substitute Jesse Mendez as attorney of record and permit Richard L. Wardroup to withdraw; and if so,
• whether appellant still desires to prosecute this appeal.

The trial court shall also cause a hearing to be transcribed. Should it be determined that appellant desires to continue the appeal, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel. An order granting the motion to substitute shall include the attorney's name, mailing address, telephone number, fax number, and state bar number. Tex. R. App. P. 6.5(d).

The trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental reporter's record of the hearing shall also be included in the appellate record. The trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by Friday, February 11, 2005.

The Court declines to consider the motion filed by Jesse Mendez to extend time in which to file appellant's brief as he is not the attorney of record. However, the Court sua sponte grants appellant 30 days from the date the supplemental record is filed in which to file his brief.

It is so ordered.

Per Curiam

Do not publish.

ions. Appellant voluntarily answered the officer's questions. At no point did he request counsel or otherwise indicate that he did not want to answer the officer's questions. Therefore, we agree with the State that these questions, asked during the course of the traffic stop and prior to arrest, did not amount to a custodial interrogation. Point three is overruled.

By points one and two, appellant contends the trial court erred in failing to grant a mistrial after the State commented on his "pre-trial silence." Specifically, appellant directs us to two separate comments made by the prosecutor during opening statements. The State contends these points were not preserved for review. We agree.

As a prerequisite for appellate review, a defendant must make a timely request, objection, or motion stating the grounds with sufficient specificity to apprise the trial court of the complaint and obtain an adverse ruling. See Tex. R. App. P. 33.1(a); Martinez v. State, 91 S.W.3d 331, 337 (Tex.Cr.App. 2002). Additionally, the objection at trial must comport with the complaint on appeal. Trevino v. State, 991 S.W.2d 849, 854-55 (Tex.Cr.App. 1999). Here, after both comments, appellant objected that the State's remarks were in violation of article 38.08 of the Code of Criminal Procedure, Article I, Section 10 of the Texas Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution. However, article 38.08 prohibits counsel from commenting on a defendant's failure to testify at trial on his own behalf. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). We find no objection in the record which comports with appellant's points on appeal regarding an improper comment on his "pre-trial silence." Because the error claimed on appeal does not comport with that presented in the trial court, any alleged error was not preserved for review. Accordingly, points one and two are overruled.

Similarly, by points four and five, appellant contends the trial court erred in failing to sustain his objections to the State's comments on his silence during closing arguments. With respect to point four, appellant contests the following remark by the State:

So there is no evidence before you, zero, zero evidence before you, that there was a problem with that vehicle.

Appellant contends this was an improper comment on his pre-trial silence and his silence at trial because he was the only one who could have supplied such information. We disagree. First, appellant's argument with respect to his pre-trial silence was not preserved for review for the same reason points one and two were not preserved. Second, apart from making the declaration in his brief, appellant wholly fails to present any argument or authority to support his position that the challenged remark constituted an improper comment on his failure to testify at trial. Thus, his point presents nothing for our review and is overruled. See Tex. R. App. P. 38.1(h) (requiring appellant's brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and to the record).

With respect to point five, appellant contests the following remarks by the State:

This idea about bad driving, sure, that's one clue of intoxication, but it's not everything. What does the Defendant say about this? Maybe there's something wrong with the tires, but there's no evidence of this.

Appellant contends these remarks were a comment on his failure to testify. We disagree. Again, apart from the contention in his brief, appellant fails to present any argument or authority to support his position. Even if he had, it is apparent from the record that the challenged remark was not a comment on appellant's failure to testify but merely an attempt by the State to summarize appellant's theory of the case. For these reasons, point five is overruled.

Finally, by points six and seven, appellant alleges the trial court erred in overruling his objection to the State's argument that the jury should extrapolate his blood alcohol level when there was no evidence to allow such an extrapolation. Appellant's entire argument consists of a single citation to authority stating that it is reversible error to allow extrapolation unless there are sufficient facts. Appellant presents no argument or explanation which relates how this authority supports his points under the present facts. Thus, his points are inadequately briefed and present nothing for review. See Tex. R. App. P. 38.1(h); Rocha v State, 16 S.W.3d 1, 20 (Tex.Cr.App. 2000). Points six and seven are overruled.

Accordingly, the trial court's judgment is affirmed.

Don H. Reavis

Justice

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