Watson, Evone v. State ( 2003 )

Opinion issued April 3, 2003  

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-00392-CR

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EVONE WATSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 878942

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MEMORANDUM OPINION

          Evone Watson, appellant, was charged in Cause Number 878941 with burglary of a habitation and in Cause Number 878942, the subject of this appeal, with possession of less than one gram of cocaine, enhanced by two prior felony convictions. Appellant pleaded guilty to possession of less than one gram of cocaine and true to the two enhancement paragraphs. The jury was instructed to find appellant guilty in Cause Number 878942, which it did. The trial court assessed punishment at 10 years’ confinement. We affirm.

Procedural Background

          At the time of entering a plea of not guilty to the offense of possession of cocaine, appellant filed an election that the trial court assess his punishment if a guilty verdict were returned by the jury. After the jury was sworn, appellant pleaded guilty to the charge of possession in open court without the jury present. Appellant also pleaded true to the two enhancement paragraphs in open court without the jury present. The trial court instructed the jury to find appellant guilty of possession of less than one gram of cocaine. The trial proceeded and testimony was heard regarding the burglary charge. The jury found appellant guilty of possession of cocaine and guilty of the lesser included offense of criminal trespass. The trial court then assessed punishment. Appellant’s trial counsel did not object to the trial court’s assessing punishment or imposing sentence.Issue

          In his sole point of error, appellant argues that the trial court erred in assessing punishment rather than having the jury assess punishment. Appellant contends that because he entered a plea of guilty to the jury, the normal bifurcated trial in Texas became a unitary proceeding in which the fact finder’s only job was to assess punishment. See Carroll v. State, 975 S.W.2d 630, 631 (Tex. Crim. App. 1998); Ricondo v. State, 634 S.W.2d 837, 841-42 (Tex. Crim. App. 1982). Appellant argues that because he did not file a waiver of trial by jury and only filed an election that the trial court assess punishment, the trial court erred in assessing punishment.Preservation of Error

          Appellant’s sole point of error was not preserved for our review. See Tex. R. App. P. 33.1. As a general rule, an appellant may not assert error pertaining to his sentence or punishment when he failed to object or otherwise raise such error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). Therefore, because appellant failed to object to the trial court’s punishment and sentence on the grounds alleged by his sole point of error, it has been waived. See Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

          We overrule appellant’s sole point of error.  

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).