Linda Garza AKA Linda Nelson v. State ( 2003 )

Affirmed and Memorandum Opinion filed July 10, 2003

Affirmed and Memorandum Opinion filed July 10, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00766-CR

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LINDA GARZA a/k/a LINDA NELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 01CR0951

M E M O R A N D U M    O P I N I O N

Appellant pleaded not guilty to a felony offense of driving while intoxicated.  The jury found appellant guilty and the trial court assessed three years= confinement in the Texas Department of Criminal Justice, Institutional Division.  On appeal, appellant complains that the trial court abused its discretion by failing to bar the State’s introduction of appellant’ two prior DWI convictions following a stipulation to those prior convictions.  We conclude appellant waived her right to appeal this issue and affirm.  

FACTUAL AND PROCEDURAL BACKGROUND

Appellant pleaded not guilty to a felony offense of driving while intoxicated.  In open court, but not in the presence of the jury, appellant orally stipulated to two prior DWI convictions.  The jury was not told about the stipulation.  During trial, the State asked that evidence of the two prior convictions be admitted and shown to the jury.  The trial court admitted this evidence.  Appellant made no objection to these admissions.  The State once more mentioned the two prior convictions in its argument to the jury.  Again, appellant made no objection.  The jury ultimately found appellant guilty and the trial court assessed three years’ confinement in the Texas Department of Criminal Justice, Institutional Division.

DISCUSSION

Appellant raises one point of error:  the trial court erred by allowing the State to mention appellant=s two prior DWI convictions following a stipulation to those convictions.  Because there was no preservation of error under Texas law, we will not reach that issue.

To preserve an error for appellate review, the record must show (1) the complaint was made to the trial court by a timely request, objection, or motion that was stated with sufficient specificity to make the trial court aware of the complaint, unless specific grounds were apparent from the context, and (2) the trial court either ruled or refused to rule on the complaint.  Tex. R. App. P. 33.1(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  Likewise, Texas Rule of Evidence 103(a) requires, in the case of the admission of evidence, that a substantial right be affected and a timely objection be made to the trial court.  Tex. R. Evid. 103(a).  Even constitutional error may be waived if a timely objection is not made.  Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000).  Here, appellant did not object when either of the prior two convictions were admitted into evidence or when the prosecutor mentioned them in the State’s case-in-chief.

Appellant did file a motion for a new trial alleging that “[t]he verdict in this cause is contrary to the law and the evidence.”  However, a motion for a new trial cannot be used to preserve error in a criminal case if the party could have objected at the time of the alleged error, but failed to object.  Maxwell v. State, 115 S.W.2d 937, 939 (Tex. Crim. App. 1938);  See also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (holding that motion for a new trial can be used to raise point of error for  first time only when party did not have opportunity to object at time objectionable action was taken).  “In order to preserve error for appellate review, a party must object as soon as the ground of objection becomes apparent.”  House v. State, 909 S.W.2d 214, 216 (Tex. App.CHouston [14th Dist.] 1995), aff’d, 947 S.W.2d 251 (Tex. Crim. App. 1997).  Appellant has failed to make any showing that she was denied the ability to object as soon as the ground for objection became apparent.

We find that appellant has waived any right to appeal and affirm the judgment of the trial court.

/s/        Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed July 10, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).