Perry Zane Milne v. The State of Texas--Appeal from 400th District Court of Fort Bend County

MEMORANDUM OPINION
No. 04-02-00737-CR
Perry Zane MILNE,
Appellant
v.
The STATE of Texas,
Appellee
From the 400th Judicial District Court, Fort Bend County, Texas
Trial Court No. 35,276
Honorable Bradley Smith, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 23, 2003

AFFIRMED

Perry Zane Milne pleaded guilty to the offense of evading arrest and the trial court sentenced him to 10 years imprisonment. We affirm the trial court's judgment.

Milne was suspected of setting a fire that destroyed his ex-wife's residence. When Fort Bend

County Sheriff Deputies observed Milne riding his motorcycle following the fire, they attempted to apprehend him. A high speed chase ensued. During the course of the pursuit, Deputy Chris Carlson attempted to intercept Milne. Deputy Carlson exited his vehicle and, with rifle in hand, stood in the middle of the roadway. As Milne approached Deputy Carlson, it became evident that Milne was not going to stop. Deputy Carlson immediately retreated from the roadway. As Milne rode by him, Deputy Carlson fired two shots from his rifle. Neither of the deputy's shots slowed Milne down. Milne was eventually apprehended when he reached a roadblock created by Texas State Troopers. Milne subsequently pleaded guilty to the offense of evading arrest, and the trial court sentenced Milne to a ten-year term of imprisonment.

In his sole issue, Milne argues the State charged him under the wrong section of the Penal Code and, as a result, subjected him to a higher punishment range for his offense. Such an argument is a challenge to the substance of the indictment. A defendant waives a complaint concerning the indictment if he does not object to the defect, error, or irregularity of form or substance in the indictment before the date on which the trial on the merits commences. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003); Short v. State, 995 S.W.2d 948, 953 (Tex. App.--Fort Worth 1999, pet. ref'd). The record in this case reveals that Milne's attorney did not file a motion to quash the indictment. Because Milne did not challenge the indictment before trial, we hold that Milne has not preserved this complaint for our review. See Tex. Code Crim. Proc. Ann. art. 1.14(b). Milne's sole issue is overruled.

We affirm the trial court's judgment.

Catherine Stone, Justice

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