Guerra, Jose Gonzalez v. State

Court of Appeals of Texas

Guerra, Jose Gonzalez v. State

DecidedJanuary 27, 2004

Docket14-03-00255-CR

StatusPublished

This text of Guerra, Jose Gonzalez v. State (Guerra, Jose Gonzalez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Guerra, Jose Gonzalez v. State, (Tex. Ct. App. 2004).

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Opinion

Affirmed and Memorandum Opinion filed January 27, 2004

Affirmed and Memorandum Opinion filed January 27, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00255-CR

JOSE GONZALEZ GUERRA, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________

On Appeal from the 253rd District Court

Chambers County, Texas

Trial Court Cause No. 11938

M E M O R A N D U M O P I N I O N

Jose Gonzalez Guerra appeals a conviction for indecency with a child^{^[1]} on the grounds that: (1) the evidence was insufficient to prove the child was not his spouse; and (2) the trial court erred in not conducting a separate punishment hearing. We affirm.

Appellant’s first issue argues that the evidence was insufficient to prove that the child was not his spouse. However, a defendant, such as appellant, who is placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when the deferred adjudication community supervision is first imposed. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). In this case, because appellant failed to challenge the sufficiency of the evidence in an appeal from his deferred adjudication, we are without jurisdiction to address it in this proceeding. Accordingly, appellant’s first issue is dismissed.

Appellant’s second issue argues that the trial court erred in failing to conduct a separate punishment hearing. See Tex. Code Crim. Proc. arts. 37.07 § 3(a)(1), 42.12 § 5(b) (Vernon. Supp. 2004); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). However, the right to such a hearing is statutory and may be waived by failing to raise it in the trial court by request, objection, or motion for new trial. Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001). In this case, because appellant did not so apprise the trial court of any desire to present punishment evidence, this issue presents nothing for our review. Accordingly, appellant’s second issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed January 27, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

^{^[1]} Appellant pled no contest, and the trial court placed him on deferred adjudication community supervision for ten years. The trial court later granted the State’s motion to revoke the deferred adjudication, adjudicated guilt, and sentenced appellant to fifteen years’ confinement.

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Affirmed and Memorandum Opinion filed January 27, 2004

Affirmed and Memorandum Opinion filed January 27, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00255-CR

JOSE GONZALEZ GUERRA, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________

On Appeal from the 253rd District Court

Chambers County, Texas

Trial Court Cause No. 11938

M E M O R A N D U M O P I N I O N

Jose Gonzalez Guerra appeals a conviction for indecency with a child^{^[1]} on the grounds that: (1) the evidence was insufficient to prove the child was not his spouse; and (2) the trial court erred in not conducting a separate punishment hearing. We affirm.

Appellant’s first issue argues that the evidence was insufficient to prove that the child was not his spouse. However, a defendant, such as appellant, who is placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when the deferred adjudication community supervision is first imposed. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). In this case, because appellant failed to challenge the sufficiency of the evidence in an appeal from his deferred adjudication, we are without jurisdiction to address it in this proceeding. Accordingly, appellant’s first issue is dismissed.

Appellant’s second issue argues that the trial court erred in failing to conduct a separate punishment hearing. See Tex. Code Crim. Proc. arts. 37.07 § 3(a)(1), 42.12 § 5(b) (Vernon. Supp. 2004); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). However, the right to such a hearing is statutory and may be waived by failing to raise it in the trial court by request, objection, or motion for new trial. Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001). In this case, because appellant did not so apprise the trial court of any desire to present punishment evidence, this issue presents nothing for our review. Accordingly, appellant’s second issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed January 27, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

^{^[1]} Appellant pled no contest, and the trial court placed him on deferred adjudication community supervision for ten years. The trial court later granted the State’s motion to revoke the deferred adjudication, adjudicated guilt, and sentenced appellant to fifteen years’ confinement.

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