Paul Douglas Perry v. State

• Court: Court of Appeals of Texas
• Decided: May 15, 2012
• Docket: 07-10-00447-CR
• Status: Published

Opinion

NO. 07-10-0447-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 15, 2012

______________________________

PAUL DOUGLAS PERRY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 59,797-D; HONORABLE DON EMERSON, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Paul Douglas Perry, pled guilty to driving while intoxicated, three

offenses or more,1 and was sentenced to five years confinement. As Appellant's plea

was not entered pursuant to a plea bargain, the trial court certified Appellant's right to

appeal. In a single issue, Appellant asserts the trial court erred by finding him guilty of

1 See Tex. Penal Code Ann. § 49.09(b) (West 2011). “driving while intoxicated, a subsequent offense” and imposing a sentence for a third

degree felony rather than a Class A misdemeanor.2 We affirm.

Background

In May 2010, an indictment was filed alleging that, on or about April 13, 2009,

Appellant committed a DWI offense with two prior DWI convictions. Appellant and his

attorney subsequently executed Written Plea Admonishments, Defendant’s Waivers

and Statement of Admonishments wherein Appellant indicated that he was charged with

the “felony offense of DWI—3rd or more.” He also stated that the range applicable to a

third degree felony applied to his case, i.e., "imprisonment in the Institutional Division of

the Texas Department of Criminal Justice for any term of not more than 10 years or less

than 2 years and, in addition, a fine not to exceed $10,000," and that his plea of guilty

was being given freely, knowingly, and voluntarily. Appellant also signed a Waiver of

Jury Trial wherein he stated that he was sane and reiterated that his plea was knowing,

voluntary and freely given. He and his attorney also signed a Judicial Confession where

he indicated that he had read the indictment, had “committed each and every allegation

it contains,” and was “guilty of the offense alleged as well as all lesser included

offenses.”

At the plea hearing held August 16, 2010, Appellant pled guilty to the offense

alleged in the indictment and the following statements, in pertinent part, were made:

COURT: Alright. Does the State have anything further on guilt/innocence? 2 Driving while intoxicated is a Class B misdemeanor for the first offense; Tex. Penal Code Ann. § 49.04(b) (West 2011), a Class A misdemeanor if there is a prior offense; id. at § 49.09(a), and a felony of the third degree if there are two prior offenses. Id. at § 49.09(b)(2).

2 STATE: Nothing further on guilt/innocence.

COURT: Defense?

DEFENSE: No, Your Honor.

COURT: All right. I’ll find you guilty there, Mr. Perry, of driving while intoxicated, a subsequent offense. I’ll find the other allegations contained—jurisdictional allegations contained in the indictment to be true. Are you ready to proceed on punishment, State?

STATE: Ready to proceed, your honor.

COURT: Okay. Defense ready on punishment?

DEFENSE: Ready.

* * *

COURT: Paul Douglas Perry, you having been found guilty of driving while intoxicated, I do now sentence you to serve five years [confinement].

(Emphasis added).

The trial court subsequently issued its Judgment of Conviction stating that

Appellant was convicted of the offense of “DWI-3rd or more” under "section 49.09(B)" of

the Texas Penal Code, a third degree felony. This appeal followed.

Discussion

Appellant asserts the trial court’s oral pronouncement of its verdict is ambiguous

as to whether he was convicted of felony DWI, third offense or more, or a Class A

misdemeanor, i.e., a DWI offense with one prior offense. He contends that, because an

unspecific pronouncement of sentence should not be held against a defendant, the trial

court’s judgment should be reformed to reflect the lesser offense.

3 To preserve a complaint for appellate review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or

motion. Tex. R. App. P. 33.1(a); Layton v. State, 280 S.W.3d 235, 238-39

(Tex.Crim.App. 2009). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have objected to

the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2). It is well-settled that, almost

every right, constitutional or statutory, may be waived by failing to object. Smith v.

State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). See Curry v. State, 910 S.W.2d

490, 497 (Tex.Crim.App. 1995) (an objection on cruel and unusual punishment must be

made in the trial court or it is waived on appeal).

We have reviewed the entire record. At no point during the guilt/innocence or

punishment phases of his trial or in his Motion for a New Trial does Appellant ever

object to the trial court’s acceptance of his plea to the third degree felony offense

alleged in the indictment or the sentence imposed. Accordingly, he failed to preserve

his complaint for appellate review. See Curry, 910 S.W.2d at 497; Battle v. State, 348

S.W.3d 29, 30-31 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d). Appellant’s single

issue is overruled.

Conclusion

The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice Do not publish.