Ronald Lee Kammerer v. State

• Court: Court of Appeals of Texas
• Decided: February 16, 2011
• Docket: 10-10-00148-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00148-CR

RONALD LEE KAMMERER, Appellant v.

THE STATE OF TEXAS, Appellee

From the 249th District Court Johnson County, Texas Trial Court No. F33846

MEMORANDUM OPINION

Ronald Lee Kammerer was convicted of the felony offense of driving while

intoxicated. See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2010). He was sentenced

to ten years in prison, but the sentence was suspended and Kammerer was placed on

community supervision for ten years. Soon thereafter, he was arrested for driving

while intoxicated in Hood County. He was eventually sentenced to prison for the Hood

County offense. A motion to revoke was filed in Johnson County but subsequently

withdrawn before any hearing was held. Kammerer was then arrested and convicted in

Brazos County for driving while intoxicated. Again, a motion to revoke was filed in Johnson County but then withdrawn before any hearing was held. Kammerer served

time in prison for the Brazos County offense. Shortly before his community supervision

expired, another motion to revoke was filed in Johnson County. A little over a month

later, Kammerer pled true to violations of his community supervision, and the trial

court revoked Kammerer’s community supervision. Kammerer was sentenced to 10

years in prison. We affirm.

In two issues, Kammerer alleges that his due process rights were violated by the

State’s delay in proceeding with a motion to revoke his community supervision and

that he was denied a speedy trial. The State contends neither of these issues was

preserved for our review.

Texas Rule of Appellate Procedure 33.1 provides that, in general, as a

prerequisite to presenting a complaint for appellate review, the record must show a

timely, specific objection and a ruling by the trial court. "’Except for complaints

involving systemic (or absolute) requirements, or rights that are waivable only … all

other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure

to comply with Rule 33.1(a).’" Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004)

(quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).

Numerous constitutional rights, including those that implicate a defendant's due

process rights and right to a speedy trial, may be forfeited for purposes of appellate

review unless properly preserved. See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim.

App. 2009); see also Rowland v. State, No. 10-05-00178-CR, 2006 Tex. App. LEXIS 5081

Kammerer v. State Page 2 (Tex. App.—Waco June 14, 2006, pet. ref’d) (speedy trial claim not preserved for

appellate review).

In this case the trial court neither disregarded an absolute requirement (such as

jurisdiction over the subject or person), nor denied Kammerer a waivable-only right

(such as the right to counsel or a jury trial), so the only issue is whether Kammerer

complied with Rule 33.1(a). See Neal, 150 S.W.3d at 175. He did not. Kammerer's due

process claims and speedy trial claims, mentioned for the first time on appeal,1 were not

timely. Furthermore, appellant never offered evidence to support a due process or a

speedy trial claim, therefore the State was never afforded an opportunity to offer

rebuttal evidence, and the trial court was never asked to rule upon either claim.

Accordingly, Kammerer’s issues are forfeited and present nothing for review.

The trial court’s judgment is affirmed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 16, 2011 Do not publish [CR25]

1 Even if Kammerer’s various letters to the trial court brought a speedy trial claim to the trial court’s attention prior to the filing of the State’s last motion to revoke, a determination we do not make, Kammerer did not then bring the claim to the trial court’s attention at the hearing on the motion to revoke.

Kammerer v. State Page 3