Francisco Salinas v. State ( 2011 )

NO. 07-10-0191-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 8, 2011
______________________________
FRANCISCO F. SALINAS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 364th DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-409,638; HON. BRADLEY S. UNDERWOOD, PRESIDING
______________________________
Memorandum Opinion
______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant Francisco F. Salinas appeals the judgment adjudicating him guilty of
aggravated assault with a deadly weapon. Through a single issue, he contends that the
trial court erred when it failed to conduct a separate punishment hearing pursuant to
article 42.12 §5(b) of the Code of Criminal Procedure. We affirm.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds for the
desired ruling if they are not apparent from the context of the request, objection, or
motion. TEX. R. APP. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim.
App. 2009). Further, the trial court must have ruled on the request, objection, or motion,
either expressly or implicitly, or the complaining party must have objected to the trial
court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334,
341 (Tex. Crim. App. 2004). Furthermore, the Court of Criminal Appeals has held that a
separate punishment hearing that follows a revocation of deferred adjudication and an
adjudication of guilt is “a statutory right which can be waived.” Vidaurri v. State, 49
S.W.3d 880, 886 (Tex. Crim. App. 2001). Thus, to avoid forfeiture of the right to a
separate punishment hearing, a defendant must complain at trial or in a motion for new
trial. Id.; see Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Lincoln v.
State, 307 S.W.3d 921, 925 (Tex. App.–Dallas 2010, no pet.); Gober v. State, 917
S.W.2d 501, 502 (Tex. App.–Austin 1996, no pet.) (holding “that an accused who raises
no objection [to the lack of a separate hearing on punishment] at the [adjudication]
hearing or in a motion for new trial has failed to preserve error and may not raise his
complaint for the first time on appeal”).
Here, appellant failed to object at the time of trial. Nor did he mention anything
about the lack of a separate punishment hearing in his motion for new trial. Therefore,
the complaint before us was not preserved for review, and we overrule the issue. See
Vidaurri, 49 S.W.3d at 886.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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