Juan Pablo Pacheco v. State ( 2006 )

Opinion Issued February 2, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00391-CR

JUAN PABLO PACHECO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 10

Harris County, Texas

Trial Court Cause No. 1278190

MEMORANDUM OPINION

          Pursuant to a plea bargain, appellant Juan Pacheco pleaded nolo contendere to the misdemeanor offense of promotion of an obscene device under Texas Penal Code section 43.23(c)(1).  Tex. Pen. Code Ann. § 43.23(c)(1) (Vernon Supp. 2005).  The trial court assessed punishment at two days in jail.  In one issue, Pacheco claims the trial court erred in failing to set aside the information because the obscenity statute is an unconstitutional violation of his right to privacy.  We hold that Pacheco has failed to show that he obtained a ruling from the trial court denying the motion to quash and therefore affirm.

Discussion

          Pacheco contends Texas Penal Code section 43.23 is unconstitutional generally, and as applied to him, because it violates the right to privacy under the Texas and United States Constitutions.  Before entering his plea, Pacheco moved in the trial court to quash the information on these grounds.  The State contends that Pacheco has waived any error on this issue because the record lacks any evidence of an adverse ruling on his motion. According to Pacheco’s brief, the trial court denied the motion after viewing photographs of the devices and finding them to be obscene under the statue.  See Tex. Pen. Code Ann. § 43.21(a)(7) (Vernon 2003) (defining “obscene device”).  However, Pacheco has failed to provide this court a reporter’s record with which to verify this claim, and the clerk’s record reflects no order or trial court ruling on the motion to quash. 

          Texas Rule of Appellate Procedure 25.2 grants a defendant the right to appeal from a plea bargain only “those matters that were raised by written motion filed and ruled on before trial.”  Tex. R. App. P. 25.2(a)(2)(A).  Here, the notice of appeal signed by the trial court certifies Pacheco’s right to appeal under this rule.  This court has held, however, that “the Rule 25.2 requirements recited in a certification must be true and supported by the record.”  Ajagbe v. State, 132 S.W.3d 491, 491 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (emphasis added).  To preserve error on a pretrial motion, an appellant must obtain an adverse ruling and include it in the record.  Darty v. State, 709 S.W.2d 652, 655 (Tex. Crim. App. 1986).  In Prince v. State, this court held that a defendant waives error where the record does not contain evidence of a ruling by the trial court on a motion to quash.  137 S.W.3d 886, 888 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Similarly, in this case, Pacheco’s failure to present evidence of an adverse ruling by the trial court waives any error arising from the trial court’s refusal to grant the motion to quash. Accordingly, we overrule Pacheco’s only issue.

Conclusion

          Because the record lacks evidence of an adverse ruling by the trial court on the motion to quash, no error has been preserved, and we therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Taft, Higley, and Bland.

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