Michael John Covarrubias v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00258-CR
NO. 02-13-00259-CR
MICHAEL JOHN COVARRUBIAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1226932D, 1226934D
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MEMORANDUM OPINION1
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In one point, Appellant Michael John Covarrubias appeals the revocation
of his deferred adjudication community supervision. We will affirm.
In June 2012, in exchange for five years’ deferred adjudication community
supervision and, among other conditions, the condition that he wear a GPS
1
See Tex. R. App. P. 47.4.
monitoring device, Covarrubias pleaded guilty to burglary of a habitation and
criminal trespass. In March 2013, the State filed a petition to proceed to
adjudication, alleging that Covarrubias had violated a condition of his community
supervision by failing to complete participation in a SWIFT court program
(Supervision with Immediate Enforcement). Covarrubias pleaded not true to the
State’s allegation, but the trial court found it true,2 adjudicated Covarrubias‘s guilt
of the underlying offenses, and sentenced him to one year in county jail for the
criminal trespass charge and fifteen years’ confinement for the burglary charge.
This appeal followed.
In his sole point, Covarrubias argues that the trial court erred by
proceeding to an adjudication of guilt because the trial court failed to admonish
him under code of criminal procedure article 42.12, section 5(a) after accepting
his guilty plea. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp.
2014). Covarrubias acknowledges that he waived the presence of the court
reporter at the original plea hearing, that prior to the plea hearing he signed
2
The record indicates that the trial court amended the conditions of
Covarrubias’s community supervision at least five times, that at least two
community supervision warrants were issued during his supervision period, and
that Covarrubias admitted at the revocation hearing that he had purposely “cut
off” his GPS monitoring device because he wanted to “divorce [himself] from the
situation.” Covarrubias testified at the revocation hearing that he knew that
wearing the GPS device was a condition of the SWIFT program.
2
written waivers accepting that he had read the article 42.12 admonishments, and
that he did not raise this alleged error in the trial court.3
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); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). A reviewing court should not address the
merits of an issue that has not been preserved for appeal. Wilson v. State, 311
S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g); Sample, 405 S.W.3d at
300. Thus, Covarrubias has preserved nothing for this court to review. See
Gottlich v. State, No. 02-13-00309-CR, 2014 WL 1704159, at *1 (Tex. App.—Fort
Worth Apr. 30, 2014, pet. ref’d) (concluding that appellant failed to preserve
argument that trial court did not admonish him timely under 42.12 because he did
not address issue in trial court) (mem. op., not designated for publication).
3
Although there is no reporter’s record of the plea hearing, our review of
the clerk’s record demonstrates that Covarrubias did not file a motion for new trial
or a direct appeal in the original guilty-plea proceedings, nor did he object at the
revocation hearing regarding the timeliness of the trial court’s article 42.12
admonishments. See Vidaurri v. State, 49 S.W.3d 880, 884 (Tex. Crim. App.
2001) (holding error in the original guilty-plea proceeding must be appealed when
the conditions of deferred adjudication are originally imposed); Manuel v. State,
994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (same).
3
Further, despite Covarrubias’s argument that he was harmed when he did
not receive the warnings after entry of deferred adjudication community
supervision—even though he received the same warnings in his written plea
admonishments before pleading guilty in exchange for deferred adjudication
community supervision—he has not shown, nor does he argue, that he would not
have pleaded guilty if he had been admonished differently. See Tex. Code Crim.
Proc. Ann. art. 42.12, § 5(a) (“The failure of a judge to inform a defendant of
possible consequences under Subsection (b) of this section is not a ground for
reversal unless the defendant shows that he was harmed by the failure of the
judge to provide the information.”); Brown v. State, 943 S.W.2d 35, 42 (Tex.
Crim. App. 1997) (stating that when a defendant complains about the trial court’s
failure to give certain information that is statutorily but not constitutionally
required, he “should be required to show that he would not have entered his plea
had he been given the required information”). Therefore, we overrule his sole
point.
Having overruled Covarrubias’s sole point on appeal, we affirm the trial
court’s judgments.
/s/ Bill Meier
BILL MEIER
JUSTICE
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PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 25, 2014
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