Christopher Dwayne Boos v. State of Texas

• Court: Court of Appeals of Texas
• Decided: March 13, 2002
• Docket: 04-01-00246-CR
• Status: Published

Opinion

Nos. 04-01-00245-CR & 04-01-00246-CR Christopher BOOS, Appellant v. The STATE of Texas, Appellee From the 25th Judicial District Court, Guadalupe County, Texas Trial Court Nos. 95-0860-CR & 97-0896-CR Honorable Dwight Peschel, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 13, 2002

AFFIRMED

In 1996, appellant, Christopher Boos, pleaded no contest to the offense of burglary of a building/criminal mischief in cause number 95-0860-CR. The terms of Boos's plea bargain called for boot camp, restitution, and 10 years confinement in prison. After Boos served several months in boot camp, the trial court suspended the 10 years confinement in prison and placed Boos on community supervision. In 1997, in an open plea, Boos pleaded no contest to the offense of aggravated assault in cause number 97-0896-CR. The trial court deferred adjudication but placed Boos on community supervision for 10 years and ordered him to submit to treatment at a substance abuse felony treatment center. The trial court also added 240 hours of community service to the terms of his community supervision.

In January 2001, after Boos was charged with reckless driving and soon thereafter tested positive for cocaine, the State filed (1) a motion to revoke Boos's community supervision in cause number 95-0860-CR, and (2) a motion to adjudicate guilt in cause number 97-0896-CR. After considering both motions in a single hearing, the trial court revoked Boos's community supervision for the offense of burglary of a building/criminal mischief, and adjudicated his guilt for the offense of aggravated assault.

Boos pleaded "true" to all of the allegations in each motion. Although the sentence originally imposed for each offense was 10 years, the State recommended at the hearing that Boos serve concurrent eight-year sentences for both offenses, and also recommended no finding of a deadly weapon used in the aggravated assault offense. The trial court accepted the pleas of true but did not accept the terms of the plea bargains. The trial court imposed a sentence of 10 years for the criminal mischief, to run concurrently with an eight year sentence for the aggravated assault, and entered a deadly weapon finding.

On appeal, Boos contends (1) the trial court erred by accepting his pleas of true because he was not advised he had no right to withdraw the pleas if the trial court rejected the plea bargain agreement, and (2) he was denied the right to present evidence that may have mitigated his punishment. Because the issues on appeal involve well-settled law, we overrule Boos's points of error and affirm the trial court's judgment in this memorandum opinion pursuant to Tex. R. App. P. 47.1

Boos argues that a plea bargain in a revocation hearing amounts to nothing more than an open plea to the court, and it is fundamentally unfair for this fact not to be made clear to defendants. He contends due process should require that a defendant be able to withdraw a plea if the plea bargain is rejected by the court. A defendant may withdraw a plea of guilty or nolo contendere if the trial court rejects a plea agreement. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). However, there is no corresponding statute that authorizes withdrawal of a plea of true in a revocation hearing and Boos cites no authority to support this contention. Regardless of the merits of his argument, Boos cannot prevail because he did not preserve error for review.

The record reflects that Boos made no objection to the trial court's sentence for either offense, did not ask to withdraw his pleas of true, did not ask for a continuance, and did not ask to present any mitigating evidence. To preserve error on appeal, a party must make a specific objection and obtain a ruling from the trial court, or object to the trial court's refusal to rule. Tex. R. App. P. 33.1.; see Martinez v. State, 17 S.W.3d 677, 686 (Tex. Crim. App. 2000). We hold Boos did not preserve error on appeal.

We affirm the trial court's judgments.

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