Rosalinda Rodriguez v. The State of Texas--Appeal from 390th District Court of Travis County

NUMBER 13-05-435-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ROSALINDA RODRIGUEZ, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 390th District Court of Travis County, Texas

MEMORANDUM OPINION

 
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Garza

Appellant, Rosalinda Rodriguez, was indicted for aggravated robbery with a deadly weapon. Tex. Pen. Code Ann. 29.03 (Vernon 2003). A jury found appellant guilty of aggravated robbery, and after she pleaded "true" to the enhancement allegations, the trial court sentenced her to twenty years' imprisonment.

By one issue, appellant contends the trial court erred when it failed to follow the trial order for criminal proceedings as set forth in Texas Code of Criminal Procedure article 36.01(a)(6). See Tex. Code Crim. Proc. Ann. art. 36.01(a)(6) (Vernon 2007). We affirm.

Factual and Procedural Background

On the evening of August 24, 2004, appellant, accompanied by two men, entered the apartment of Marcelo Medina. Appellant asked Medina if she could use his phone. Medina replied that it was not working. The two men then proceeded to attack Medina while appellant removed Medina's wallet and broke his cell phone. The attack resulted in Medina sustaining a fractured nose, torn lip, and stab wound to the back. Appellant was charged with aggravated robbery with a deadly weapon.

The record reflects that, at trial, after the State rested its case-in-chief, the trial court recessed the proceedings until the next morning. The following morning, the trial court convened out of the jury's presence for the charge conference. During this conference, appellant's defense counsel informed the trial court and the State that it had no evidence to offer. At the end of the charge conference, the jury was brought into court and the State began its closing arguments. Appellant never complained to the trial court that she did not have an opportunity to put forth testimony or that the proceedings had occurred out of order. The issue was ultimately brought to the trial court's attention after the jury had returned a guilty verdict and had been discharged. At this time, appellant's counsel stated to the trial court that the out-of-order proceeding was "probably not fatal" and stated that appellant did not intend to put forth evidence. This appeal ensued.

Discussion

By one issue, appellant contends the trial court erred when it failed to allow her an opportunity to present testimony as allowed by Texas Code of Criminal Procedure article 36.01. See id. Article 36.01 provides that "testimony on the part of the defendant shall be offered." Id.

The State contends the issue was not preserved for review because appellant failed to object in the trial court. See Tex. R. App. P. 33.1(a)(1)(A). We agree.

In order for an appellant to bring a complaint under article 36.01 under appellate review, the appellant must first raise a timely objection at trial. See Tex. R. App. P. 33.1(a)(1)(A); Castillo v. State, 530 S.W.2d 952, 954 (Tex. Crim. App. 1976); Limon v. State, 838 S.W.2d 767, 769 (Tex. App.-Corpus Christi 1992, no pet.). The record shows appellant failed to raise a timely objection at trial when the out-of-order proceedings occurred. We conclude that error was not preserved in the absence of an objection directing the court to the correct procedure. See Castillo, 530 S.W.2d at 954; Limon, 838 S.W.2d at 769. Accordingly, appellant's sole 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 28th day of June, 2007.