David Delosantos A/K/A David De Los Santos v. State

• Court: Court of Appeals of Texas
• Decided: August 4, 2005
• Docket: 13-04-00398-CR
• Status: Published

Opinion

                             NUMBER 13-04-398-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

___________________________________________________________________

DAVID DELOSANTOS A/K/A

DAVID DE LOS SANTOS,                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

___________________________________________________________________

                  On appeal from the 148th District Court

                           of Nueces County, Texas.

_  _________________________________________________________________

                     MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                      Memorandum Opinion by Justice Rodriguez

Appellant, David Delosantos a/k/a David De Los Santos, appeals his conviction of indecency with a child.  See Tex. Pen. Code Ann. ' 21.11 (a)(1) & (a)(2)(A) (Vernon 2004).  Appellant waived his right to a trial by jury and entered a plea of guilty.  After accepting appellant=s plea and hearing evidence, the trial judge sentenced appellant to seven years in the Institutional Division of the Texas Department of Criminal Justice.  The trial court has certified that this case Ais not a plea bargain case, and the defendant has the right of appeal.@  See Tex. R. App. P. 25.2(a)(2).  By one point of error, appellant alleges that the trial court erred in sentencing him when the court never found appellant guilty according to the evidence.  We affirm.

I.  BACKGROUND

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts in this memorandum opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

II.  ANALYSIS

By his sole point of error, appellant contends that because the trial court did not recite that he was found guilty based upon the evidence presented, his sentencing was not in compliance with article 1.15 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004-05).  Appellant alleges that although the trial court found appellant guilty based on its oral admonishment and appellant=s plea of guilty, the trial court erred because it did not find him guilty based on evidence; therefore, the sentence is null and void.  See id.  Appellant further argues that the language in article 1.15 should be strictly construed to require a statement from the trial court declaring guilt based on the evidence before announcing sentencing. See id.

The State, however, asserts that because appellant did not object that the trial court considered punishment without first making such a pronouncement, error, if any, was not preserved for our review.  We agree.

To preserve error for review at the appellate level, the record must reflect that a complaint was made to the trial court by a timely request or objection which was ruled upon by the judge.  See Tex. R. App. P. ' 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  Appellant failed to bring this issue before the trial court.  Our review of the record finds no objection related to appellant=s point of error.  We conclude, therefore, that appellant has failed to preserve this sole issue for our review.

III.  CONCLUSION

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 4th day of August, 2005.