Gonzales, David Isaac v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Memorandum Opinion filed February 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01227-CR

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DAVID ISACC GONZALES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 928,303

M E M O R A N D U M O P I N I O N

Appellant David Isacc Gonzales was convicted of sexual assault of a child. In two issues on appeal, appellant argues (1) the trial court erred in denying his motion for continuance and (2) the Texas statutory scheme governing community supervision violates the Fifth Amendment privilege against self-incrimination. We affirm.

In the summer of 2001, when the complainant P.C. was fourteen years old, appellant had sexual intercourse with P.C. on a number of occasions. Appellant was a family friend, and P.C. and appellant s niece would spend the night at his apartment and watch movies. On July 7, 2001, while looking for her daughter, P.C. s mother found appellant and P.C. in the same bedroom at appellant s apartment. P.C. s mother suspected sexual activity had occurred and immediately took her daughter to a hospital for an examination. Appellant was arrested soon thereafter. In October 2003, appellant was convicted of sexual assault and sentenced to twenty years imprisonment.

In his first issue, appellant contends that the trial court erred in denying his motion for continuance. Five days before trial, appellant informed his attorney for the first time that certain medications he was taking at the time of the offense prevented him from performing sexually; thus, appellant claimed he could not have had sexual intercourse with P.C. Appellant sought a motion for continuance four days before trial based upon the need to consult a doctor on the matter. The day trial was set to begin, the trial court held a short hearing on the motion for continuance. Appellant s counsel explained that he had not been able to get a doctor to testify and that appellant s personal doctor was on vacation. The trial court denied the motion, stating that appellant had not shown diligence in pursuing the matter.

The proper method by which to preserve error in the denial of a motion for continuance based on the absence of a witness is a motion for new trial. Taylor v. State, 612 S.W.2d 566, 569 (Tex. Crim. App. [Panel Op.] 1981); Burns v. State, 923 S.W.2d 233, 237 (Tex. App. Houston [14th Dist.] 1996, pet. ref d). Appellant filed a motion for new trial, but he only alleged ineffective assistance of counsel. Because appellant failed to include the denial of his motion for continuance in his motion for new trial, appellant has not preserved error on this issue. Lemmons v. State, 75 S.W.3d 513, 526 (Tex. App. San Antonio 2002, pet. ref d);Burns, 923 S.W.2d at 237. Accordingly, we overrule appellant s first issue.

In his second issue, appellant argues that the Texas statutory scheme governing community supervision violates the Fifth Amendment privilege against self-incrimination under the U.S. Constitution. See U.S. Const. amend. V. Specifically, appellant contends that the requirements found in article 42.12, section 4(e) of the Code of Criminal Procedure are unconstitutional. See Tex. Code Crim. Proc. Ann. art. 42.12, 4(e) (Vernon Supp. 2004 2005). This section mandates that a defendant, in order to be eligible for community supervision, file a sworn motion stating that the defendant has not been convicted of a felony in Texas or any other state. Id. A jury must also enter a finding in the verdict that the information in the defendant s motion is true. Id. The defendant bears the burden of pleading and proving that he has no prior felony convictions. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999).

Here, appellant filed an Application for Probation before trial, but neither called anyone to testify that he had never been convicted of a felony nor took the stand himself. The trial court informed appellant that he would be ineligible for community supervision if he chose not to present any evidence that he had never been convicted of a felony. Appellant now contends this statutory scheme violates his Fifth Amendment privilege against self-incrimination; however, appellant did not lodge this objection at trial. Because appellant did not object, we find that he has not preserved error on this issue. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (noting that [e]ven constitutional errors may be waived by failure to object at trial ).

Even if appellant had preserved error on this issue, we reject appellant s argument that article 42.12, section 4(e) of the Texas Code of Criminal Procedure violates the Fifth Amendment. The Fifth Amendment protects against compelled self-incrimination. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998). As stated above, under article 42.12, section 4(e), the defendant bears the burden of pleading and proving that he has no prior felony convictions in order to be eligible for community supervision. Speth, 6 S.W.3d at 533. A defendant can accomplish this through testimony of his own or of others. See Trevino v. State, 577 S.W.2d 242, 243 (Tex. Crim. App. [Panel Op.] 1979) (holding that defendant s wife s testimony that defendant had not been convicted of a felony was sufficient to require submission to jury of a charge on probation). Because a defendant is not required much less compelled to testify in order to be eligible for community supervision, article 42.12, section 4(e) is not violative of the Fifth Amendment of the U.S. Constitution. Indeed, the trial court even advised appellant that another person who knew him well could testify as to whether he had any prior felony convictions. Appellant s second issue is overruled.

For the reasons stated above, we affirm appellant s conviction.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed February 17, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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