Augustin Torres v. State ( 2002 )

NO. 07-02-0075-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 23, 2002

______________________________



AUGUSTINE TORRES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 140^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 93-416890; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Augustine Torres was convicted of the offense of burglary of a habitation after a plea of guilty and sentenced to ten years confinement in the Institutional Division of the Department of Criminal Justice, probated for ten years. On application by the State, his community supervision was subsequently revoked, and his original sentence was imposed. Appellant gave notice of appeal from that judgment.

However, appellant has now filed a motion to dismiss his appeal, which he has signed. Because the motion meets the requirements of Rule of Appellate Procedure 42.2(a), and this court has not delivered its decision prior to receiving it, the motion is hereby granted and the appeal is dismissed.

Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

John T. Boyd

Chief Justice

Do not publish.

discussion, appellant's attorney stated, "I think they have to make an election as to which one they're going on." Without acknowledging the statement, the trial court continued its discussion of the jury charge concluding with request for any objections to the jury charge. After the State requested one additional jury instruction which was granted by the trial court, both sides announced that they had no objections to the jury charge. The case then went to the jury with both sides making closing statements. During the State's closing statement, the prosecutor made the statement that "some people require 12 people to force feed them responsibility. Some people require that." Appellant made no objection. Appellant was found guilty and sentenced to 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice.

On appeal, appellant contends that the trial court erred in refusing appellant's request to have the State elect which incident or incidents it was relying upon as evidence of the two counts of indecency with a child. ⁽¹⁾ We affirm.

A party is required to preserve a complaint for appellate review by (1) making a timely request, objection, or motion; (2) stating the grounds with sufficient specificity to make the trial court aware of the complaint; and (3) obtaining from the trial court a ruling, either expressly or implicitly, or a refusal by the trial court to rule on the request, objection or motion. See Tex. R. App. P. 33.1. In this case, appellant's statement of "I think they have to make an election as to which one they're going on" is not a request, objection or motion. Further, the State correctly points out that, even if the statement can be construed as a request, the statement is ambiguous in that, since the indictment included two separate counts, appellant's statement could have referred to an election between the two counts as easily as a reference to an election between incidents. Finally, assuming arguendo that appellant's statement could be considered an objection with sufficient specificity to notify the trial court of appellant's complaint, appellant did not obtain a ruling either express or implicit. See Wilson v. State, 7 S.W.3d 136, 144 (Tex.Crim.App. 1999). A review of the circumstances surrounding appellant's statement of "I think they have to make an election" fails to provide any evidence that would support an implicit ruling. See Sauceda v. State, 129 S.W.3d 116, 124 n.6 (Tex.Crim.App. 2004) (an implied ruling can be inferred from a trial court's actions). Neither the trial court nor the State acknowledged appellant's statement nor provided any discussion from which we can infer any ruling or action by the trial court. Hence, we conclude that appellant did not properly preserve his complaint, and thus, presents nothing for review.

For the foregoing reasons, we affirm the trial court's judgment.

Mackey K. Hancock

Justice

Do not publish.

1. Appellant also alleged that the State improperly commented on appellant's exercise of his right to a jury trial during its closing argument. However, appellant concedes that trial counsel did not make an objection to the State's comment. Hence, we find that the issue has not been preserved. See Tex. R. App. P. 33.1; see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996).