Guerrero, Mayela v. The State of Texas--Appeal from 385th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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MAYELA GUERRERO, ) No. 08-01-00384-CR

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Appellant, ) Appeal from

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v. ) 385th District Court

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THE STATE OF TEXAS, ) of Midland County, Texas

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Appellee. ) (TC# CRD-23,142)

O P I N I O N

Mayela Guerrero appeals her conviction for possession of more than four grams but less than 200 grams of cocaine.[1] A jury found Appellant guilty and the court assessed her punishment at imprisonment for a term of five years. We modify the judgment to reflect Appellant=s conviction for possession of cocaine, and we affirm the judgment as so modified.

FACTUAL SUMMARY

A jury found Appellant guilty of possessing 67.21 grams of cocaine. At sentencing, the trial court reviewed the pre-sentence report which recommended community supervision. The court made the following statements:

[The Court]: Okay. Well, there are several things for the Court to consider, and I have given it some consideration over the last couple of days. Of course, the amount of drugs involved in this crime of which she has been found guilty is significant, and does bear notice. The offense of which she was convicted is a second-degree felony offense. The only thing in the presentence investigation that gives me any concern, of course, is the fact that she is a resident alien and subject to deportation upon conviction of a felony of this nature. And that=s the only thing that really gives me much pause in granting her probation. There is not much reason for us to have her on probation if she is going to be deported, is about all I can say. So I=m going to sentence her to 5 years in the Institutional Division.

Despite having an opportunity to object, trial counsel made no contemporaneous objection to the trial court=s comments or to the court=s consideration of Appellant=s status as a resident alien in assessing punishment. Likewise, Appellant did not file a motion for new trial raising the issue.

IMPROPER CONSIDERATION OF ALIENAGE

In Points of Error Nos. One and Two, Appellant asserts that the trial court violated her right to due process under the United States and Texas Constitutions, respectively, by considering alienage in sentencing her to a term of imprisonment rather than community supervision. With respect to Point of Error No. Two, Appellant has failed to present any authority or argument as to how the protection offered by Article I, Section 19 of the Texas Constitution differs from the protection guaranteed by the United States Constitution. Consequently, her argument is inadequately briefed and presents nothing for review. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996). Point of Error No. Two is overruled. We turn now to Point of Error No. One.

To preserve a complaint for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex.R.App.P. 33.1(a). Rule 33.1 ensures that trial courts are provided with an opportunity to correct their own errors before a case is appealed. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). If a defendant fails to inform the trial judge of the potential error through a timely request, objections, or motion, there is no opportunity for correction at the trial level. Id. It is for this reason that a defendant must object to alleged errors on the record before those errors may be appealed. Id. Under Rule 33.1, an appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise error in the trial court. See Vidaurri, 49 S.W.3d at 885; Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App. 1986). Even constitutional errors may be waived by failure to object. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995); Rogers v. State, 640 S.W.2d 248, 265 (Tex.Crim.App. 1982)(on second motion for reh=g). Appellant never complained of the court=s comments, nor did she object to the court=s consideration of improper evidence or to the sentence itself. Therefore, Appellant waived this complaint. Id. Point of Error No. One is overruled. Having overruled both points of error, the judgment of the trial court, as modified to reflect Appellant=s conviction for possession of cocaine, is affirmed.

January 30, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] The judgment erroneously recites that the jury found Appellant guilty of possession of cocaine with intent to deliver. The two-count indictment alleged possession of cocaine with intent to deliver in the first count and possession of cocaine in the second count. The verdict forms reflect that the jury found Appellant not guilty of the possession with intent to deliver offense, but found her guilty of possession of cocaine.