Franklin Duane Walston v. State

Affirmed and Memorandum Opinion filed February 12, 2009

Affirmed and Memorandum Opinion filed February 12, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00504-CR

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FRANKLIN DUANE WALSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1076835

M E M O R A N D U M   O P I N I O N

Appellant Franklin Duane Walston appeals his conviction of failure to comply with a civil commitment, claiming that the prior charge warranting his civil commitment, with which he did not comply, could not also be used as an enhancement for punishment.  We affirm.

I.  Factual and Procedural Background

Appellant was charged by indictment with the felony offense of violation of a civil commitment requirement.  The indictment contained two enhancement paragraphs, in which the State set forth appellant=s 1990 conviction for aggravated sexual assault of a child and a 2001 conviction for violation of a civil commitment requirement.

Appellant pleaded Aguilty@ to the charged offense and Atrue@ to the two enhancement paragraphs.  After a presentence investigation, the trial court found appellant guilty as charged and found the enhancement paragraphs true.  The trial court assessed a life sentence. In a single issue, appellant challenges the sentence imposed, claiming that the law does not authorize use of the 1990 conviction for enhancement purposes because that conviction served as the basis for requiring his civil commitment.

II.  Failure to Preserve Error

To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint.  Tex. R. App. P. 33.1(a).  Appellant has not cited and we have not found any place in the appellate record showing that appellant raised this issue with the trial court.  To the contrary, appellant pleaded Atrue@ to both enhancement paragraphs when he pleaded Aguilty@ to the charged offense.  Moreover, the record contains no evidence that appellant=s 1990 conviction served as the basis for requiring civil commitment.  Appellant did not present this challenge to the trial court and the record contains no factual support for it.  Therefore, no error is preserved for appellate review.  See id.; see also In re Commitment of Larkin, 161 S.W.3d 778, 783 (Tex. App.CBeaumont 2005, no pet.). Accordingly, we overrule appellant=s sole issue on appeal and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Anderson and Frost and Senior Justice Hudson.^*

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

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^*  Senior Justice J. Harvey Hudson sitting by assignment.