David Gloria v. State

• Court: Court of Appeals of Texas
• Decided: August 22, 2002
• Docket: 13-01-00367-CR
• Status: Published

Opinion

                             NUMBER 13-01-367-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI

DAVID GLORIA,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                   On appeal from the 25th District Court

                          of Gonzales County, Texas.

                              O P I N I O N

         Before Chief Justice Valdez and Justices Hinojosa and Castillo

                                  Opinion by Justice Castillo

Appellant, David Gloria, pled guilty to the offense of assault against a public servant^[1] and was sentenced to five years in prison.  In a single issue, appellant argues that the trial court erred in sentencing him in excess of a plea agreement.  Appellant asserts that the trial court was required, and failed, to follow the plea bargain agreement.  The State argues that appellant acquiesced to the modification of the plea agreement by the trial court.   We find that the issue was not preserved and affirm.

  FACTS

On January 12, 2001, appellant was indicted for the offense of assault against a public servant.  His case was set for a plea on March 26, 2001.  Appellant reached a plea agreement with the State for a three year prison term.   At the plea hearing, the judge announced that he would accept the plea agreement, found that there was sufficient evidence to find appellant guilty, but opted not to enter a finding of guilt at that time.  The judge reset the case for Asentencing@ to be held on April 23, 2001, at 9:00 a.m., due to appellant=s request for some time to resolve some personal business.   But the judge told appellant:

If you appear on that day, I will sentence you in accordance with the plea bargain to three years confinement.  If you do not appear on that day for sentencing, I will feel free to sentence you anywhere within the range of punishment which includes up to ten years confinement.  Do you understand?

Appellant responded, AYes, sir.@

On April 23, 2001, the appellant arrived thirty minutes late to court.  He explained to the judge that he overslept.  The following colloquy then occurred:

JUDGE:                 You overslept. Well, that impresses me real, real, real well. You overslept. What=s it going to cost you to have overslept that much this morning. Do you remember telling me that if you showed up on time today that I would give you three years? Do you remember that?

APPELLANT:          Yes, sir.

JUDGE:                 Do you also remember, I told you if you didn=t show up on time, if we had to go find you - -

APPELLANT:          But nobody had to go find me; I showed up.

JUDGE:                 Sir?

APPELLANT:          They didn=t have to go find me; I showed up.

JUDGE:                 Yes, but you were still late.

APPELLANT:          I=m late like 30 - -

JUDGE:                 I don=t intend to give you 10 years, but I=m going to give you more than three.  Do you remember that conversation we had?

APPELLANT:          Yes, sir.

JUDGE:                 You=re not claiming any kind of surprise, are you?

APPELLANT:          No.

JUDGE:                 You knew this could happen if you showed up late, and you showed up late, didn=t you? It=s a yes or no answer.

APPELLANT:          Yes, sir.

JUDGE:                 Okay. Well, Mr. Gloria, at this time I will find you guilty of the offense of assault against a public servant. Do you have anything to say before I sentence you?

APPELLANT:          No, sir.

JUDGE:                 Do you have anything to say on behalf of your client, Mr. [Defense Counsel]?

DEFENSE COUNSEL:       No, sir.

The trial court then sentenced appellant to five years imprisonment, notified appellant of his right to appeal and to file a motion for new trial, advised appellant that his defense counsel would continue to represent him unless he could not, in which case another attorney would be appointed, and then asked appellant if he understood, to which appellant responded in the affirmative.

The judge then asked appellant, ADo you have a question about anything that=s happened?@  Appellant responded, ANo, sir.@  The court further queried, ADo you understand what=s going on? Yes?@ and appellant answered, AYes, sir.@  The trial judge then ordered appellant to be taken into custody.

Notice of appeal was filed on May 21, 2001.  No post-sentencing motions, aside from a request for a reporter=s record and designation of clerk=s record on appeal, were filed.  No motion for new trial was filed.

PRESERVATION OF ERROR

We do not reach the merits of appellant=s argument because we find that appellant has failed to preserve error as to the sole issue presented.  

Although the judge made it clear to appellant at the second hearing that he was not going to follow the plea agreement, appellant made no request to withdraw his guilty plea, nor did he protest the trial court=s action in not following the plea agreement.  Additionally, before the sentence was pronounced, the judge gave the defendant an opportunity to give any reason why the judge should not pronounce sentence.  Appellant could have, but did not, use such opportunity to raise a protest or objection that the judge was not following the agreement, or ask to withdraw his plea.  The trial court similarly gave defense counsel an opportunity to speak prior to pronouncing sentence and counsel also did not lodge an objection or assert that the trial court was bound to follow the plea agreement.  Nor did counsel attempt to have his client withdraw his plea.   After the sentence was announced, neither appellant  nor his counsel made any objection to, or protest of, the sentence or the trial court=s actions.   Appellant did not file a post-sentencing motion requesting permission to withdraw his plea.  Appellant filed no motion for new trial alleging that the court erred in the sentencing or in not following the plea bargain agreement.  Appellant never made such complaint to the trial court and raises it for the first time on appeal. 

To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling.  Tex. R. App. P. 33.1(a).   As a general rule, an appellant may not complain of an error pertaining to his sentence or punishment if he has failed to object or otherwise raise error in the trial court.  Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986).  In the present case, appellant has wholly failed to do so and thus has not preserved any complaint for our review.    Cf. Papillion v. State, 908 S.W.2d 621, 623 (Tex. App.BBeaumont 1995, no pet.)(where judge refused to follow previously conditionally accepted  plea bargain, and defendant failed to object to this failure at sentencing or request to withdraw his plea, issue was nevertheless preserved for appellate review by virtue of defendant=s timely filed motion for new trial, raising such issue);^[2] see also Lanum v. State, 952 S.W.2d 36, 40 (Tex. App.BSan Antonio 1997, no pet.)(where defendant alleged that he was not given an opportunity to withdraw his plea of Atrue@ when trial court failed to follow probation officer=s recommended sentence, but defendant never requested permission to withdraw his plea at the hearing or in a motion for new trial, issue was waived).  We overrule appellant=s issue on appeal.

CONCLUSION

As we have found that appellant failed to preserve his sole issue for our review, we affirm the decision of the trial court.                                                                      

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 22nd day of August, 2002.          

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^[1] Tex. Pen. Code Ann. '22.01(b)(1)(Vernon Supp. 2002).

^[2] The reviewing court noted that when a defendant has no opportunity to object to a trial court=s action until after it takes place, a defendant may still preserve error by raising the objection in a timely filed motion for new trial.  Papillion v. State, 908 S.W.2d 621, 623 (Tex. App.BBeaumont 1995, no pet.)(citing Issa v. State, 826 S.W.2d 159, 160-61 (Tex. Crim. App. 1992)).  As noted, appellant in the instant case neither objected at the time of the sentencing nor by way of a motion for new trial. We observe also that the present case, like Papillion, also seems to involve the conditional acceptance of a plea.  See also Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996)(where trial court initially said that he was going to accept the plea agreement, but then stated that he was only going to find that the evidence substantiated the defendant=s guilt, not make any decisions that day, and defer a finding of guilt until after the preparation of a presentence investigation report, there was no acceptance of the plea agreement and the trial court was not bound to follow it).  However, as we do not reach the merits, we need not decide whether the trial court conditionally accepted the plea agreement, never accepted the plea agreement, modified the plea agreement with appellant=s consent, or accepted the plea agreement and then refused to follow it.