Simien, Jr., Joseph Donald v. State ( 2000 )

NUMBER 13-99-255-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JOSEPH DONALD SIMIEN, JR.

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 339th District Court of Harris County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez

Appellant, Joseph Simien, Jr., pleaded guilty without a plea bargain agreement to the offense of aggravated robbery and was assessed punishment at fifteen years confinement. By four points of error, he challenges his conviction and sentence. We affirm.

Appellant was charged with aggravated robbery and entered a plea of guilty without a plea bargain agreement with the State. After conducting a sentencing hearing, the trial court entered a finding of guilt and assessed punishment at fifteen years confinement.

In points of error one and two, appellant contends article 1.15 of the Texas Code of Criminal Procedure⁽¹⁾ violates his constitutional right to due process because it denies him the right to compulsory process. More specifically, appellant argues that the statute requires that the court base its determination of guilt or innocence on the evidence stipulated or offered by the state alone and bars the court from considering evidence offered by the defendant. In points of error three and four, appellant asserts error in the entry of judgment where the record is silent as to waiver of his right to compulsory process.

Generally, to preserve error, the complaining party must make a timely objection and obtain a ruling. See Tex. R. App. P. 33.1; Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). Because article 1.15 was not facially unconstitutional, nor was it "void ab initio," appellant was required to object before the trial court in order to preserve any error for purposes of appeal. Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994). Even constitutional errors may be waived by the failure to object. See id.

Appellant failed to bring these issues to the attention of the trial court by objecting during the guilty plea proceeding or by filing a motion for new trial. Accordingly, he has failed to preserve any error.

Appellants points of error are overruled and the conviction is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 27th day of July, 2000.

1. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1991).