Tapia Alarcon, Javier v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAVIER TAPIA ALARCON, )

) No. 08-02-00176-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 76917)

)

O P I N I O N

Appellant, Javier Tapia Alarcon, appeals a conviction for delivery of less than one gram of cocaine. He raises a single issue on appeal, arguing the trial court erred by failing to award him credit for time served in this case prior to the adjudication of guilt. We will affirm.

Appellant was charged by indictment with unlawful delivery of less than one gram of cocaine.[1] On April 13, 1995, he pleaded guilty and was placed on five years=

deferred-adjudication probation. On April 12, 2000, the State filed a motion to adjudicate guilt. On April 25, 2000, a hearing was held on the State=s motion. The trial court revoked Appellant=s deferred-adjudication probation, entered a finding of guilt, and placed him on two years= community supervision. On October 23, 2001, the State filed a motion to revoke community supervision. On January 24, 2002, the trial court held a hearing on the State=s motion and revoked Appellant=s community supervision. The trial court then sentenced Appellant to

twenty-two months= incarceration. Appellant was not given credit for time he had previously served on the case. Appellant now brings this appeal, arguing the trial court erred by not awarding him credit for time previously served on this matter.

We begin by noting an appellant must first make a complaint or take appropriate action in the lower court in order to present a complaint for appellate review. Tex.R.App.P. 33.1(a). If an appellant fails to raise an issue at trial in the form of a timely request, objection, or motion, that issue is simply not preserved for appellate review. Id. In the case before us, Appellant contends the trial court erred by failing to award credit for time he had previously served. However, Appellant freely admits that nothing in the record before us establishes the actual amount of time served. The Appellant failed to raise this issue with the trial court during any of the hearings related to this cause. At the time the trial court revoked Appellant=s community supervision, the judge clearly stated on the record that there would be no credit for time served. Appellant=s counsel said nothing in response to the court. Because Appellant failed to object to the trial court=s decision or establish any record with regard to this matter, the issue is waived on appeal. Tex.R.App.P. 33.1(a).

For the reasons stated above, we affirm the trial court=s judgment.

July 29, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

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

(Do Not Publish)

[1] Appellant was convicted of two separate offenses, and first given deferred adjudication and then placed on community supervision in each case. A single revocation hearing was later held to determine whether community supervision should be revoked in each case. Because the underlying causes of action and subsequent appeals are separate, independent opinions will be issued. The facts related to the revocation hearing and Appellant=s issue on appeal are the same in both cases. The companion case on appeal is #08-02-00177-CR.