SANTOS RAMIREZ v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

NUMBER 13-04-655-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

SANTOS RAMIREZ, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

 
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Garza

Appellant, Santos Ramirez, Jr., was indicted for burglary of a habitation with the intent to commit sexual assault, see Tex. Pen. Code Ann. 30.02(a)(1) (Vernon 2003), and attempted sexual assault, see Tex. Pen. Code Ann. 15.01(a) (Vernon 2003), 22.021(a)(1) (Vernon Supp. 2005). Without the benefit of a plea agreement, appellant pleaded guilty. The trial court deferred adjudication and placed appellant on community supervision for ten years. Subsequently, the State filed a motion to revoke community supervision and adjudicate guilt, alleging several violations of his probation. The motion to revoke was denied and appellant was sanctioned. The State then filed another motion to revoke and adjudicate guilt, which was granted. Appellant pleaded "true" to two of the allegations in the State's motion to revoke. The trial court adjudicated appellant guilty, revoked his community supervision, and sentenced him to sixty years' imprisonment.

Appellant filed a timely motion for new trial, arguing that (1) the sentence imposed was cruel and unusual and (2) he received ineffective assistance of trial counsel at punishment because counsel failed to present mitigating evidence. A hearing on the motion for new trial was held on December 17, 2004. While making his closing statements, appellant's counsel raised, for the first time, a prosecutorial vindictiveness claim. Appellant argued that it had been fundamentally unfair for the State to have made a forty-year recommendation to the court during the punishment phase of trial after he rejected the plea offer of a five-year recommendation in exchange for his plea of "true" to all of the alleged violations. The motion for new trial was denied. This appeal ensued. (1)

By his sole issue, appellant challenges the denial of his motion for new trial alleging that his sentence was the result of prosecutorial vindictiveness. For the reasons that follow, we affirm the judgment of the trial court.

I. Standard of Review

We review the denial of a motion for new trial for an abuse of discretion. Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995). A trial court abuses its discretion when it acts without reference to any guiding principles or if the decision is arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (en banc).

II. Analysis

Appellant contends the trial court erred by failing to grant his motion for new trial because the State vindictively made an unfair sentence recommendation after he rejected their plea offer. The State contends that the issue is not preserved for appeal. We agree.

In the present case, the prosecutorial vindictiveness claim was not brought to the court's attention until closing statements during the hearing on the motion for new trial. Appellant's claim in his motion for new trial concerned cruel and unusual punishment, not prosecutorial vindictiveness. See Neal v. State, 150 S.W.3d 169, 177 (Tex. Crim. App. 2004). When an allegation is not properly presented in a motion for a new trial, it should not be entertained by the trial court at the hearing and it is not properly preserved for appeal. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985). Accordingly, appellant has not preserved this issue for appellate review. See Tex. R. App. P. 33.1; Cuellar v. State, 943 S.W.2d 487, 491 (Tex. App.-Corpus Christi 1996, pet. ref'd). Moreover, because appellant never made a timely and specific prosecutorial vindictiveness claim, the court was never given the opportunity to hear evidence or rule on it. Neal, 150 S.W.3d at 178. Likewise, the State was never given an opportunity to rebut appellant's claim. Because a defendant must offer evidence to prove his prosecutorial vindictiveness claim the importance of making that claim in the trial court is paramount. Id. We hold appellant failed to preserve the issue for appellate review. Accordingly, appellant's issue is overruled.

The judgment of the trial court is affirmed.

 

DORI CONTRERAS GARZA,

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 3rd day of August, 2006.

1. Although a criminal appellant cannot appeal an order placing him on deferred adjudication, community supervision, and although appellant cannot attack his conviction following revocation, appellant can appeal issues unrelated to his conviction, such as the one before us. See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).