Taylor, Jerry Sherman v. The State of Texas--Appeal from 21st District Court of Burleson County

Affirmed and Memorandum Opinion filed October 19, 2004

Affirmed and Memorandum Opinion filed October 19, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00966-CR

NO. 14-03-00967-CR

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JERRY SHERMAN TAYLOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Burleson County, Texas

 Trial Court Cause Nos. 12,527 & 12,579

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

Jerry Taylor appeals two convictions for possession or transport of chemicals with intent to manufacture a controlled substance (no. 12,527) and manufacture of a controlled substance (no. 12,579) on the grounds that the trial court: (1) denied him due process of law by imposing a predetermined sentence; and (2) erred in admitting opinion testimony during the punishment phase. We affirm.

Appellant=s first point of error contends that the trial court violated his due process rights by imposing a predetermined sentence, as reflected by the court=s admonishment to appellant upon accepting his guilty plea:

THE COURT: You understand if you=re found guilty in either or both of these cases and you plea [sic] true to the enhancement paragraph in Cause No. 12,527, in both of these cases if you=re found guilty, the enhancement paragraph, you=re ordered to serve 28 years in the State Penitentiary and/or be sentenced to life imprisonment and/or pay a fine. Do you understand that?

There was no plea bargain regarding the length of sentence, and, after a presentence investigation, the trial court sentenced appellant to twenty-eight years confinement for each offense.

In order to preserve a complaint for appellate review, including a denial of due process by imposing a predetermined punishment, a timely objection must be made to call the matter to the attention of the trial court. See Tex. R. App. P. 33.1(a); Cole v. State, 931 S.W.2d 578, 579B80 (Tex. App.CDallas 1995, pet. ref=d). Because appellant has not cited, and we have not found, any portion of the record at which he raised this complaint in the trial court, his first point of error presents nothing for our review and is overruled.

Appellant=s second point of error contends that the court erred in allowing opinion testimony by Virginia Trepagnier, a deputy with the Harris County Sheriff=s Department, based on the following exchange:

Q. And the Court has the report, but were you able to determine when you first investigated this lab and dismantled it approximately how much methamphetamine it was capable of producing?

A. We estimate. A lot of times we=re under the amount, but yes, we estimate.

Q. And do you recall what you estimated on this particular one?

[DEFENSE COUNSEL]: Objection, that calls for speculation.

THE COURT: Do you have an opinion?

A. Yes, sir.

THE COURT: Go ahead.

A. Between 400-600 grams.

Appellant=s brief does not clearly specify why it contends this evidence was erroneously admitted. However, a complaint on appeal that does not comport with the objection at trial presents nothing for our review. See Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2157 (2004). If anything, appellant=s brief challenges only whether Trepagnier was qualified to testify as an expert, not why the question objected to calls for speculation, as ruled upon by the trial court. Because an objection based on speculation does not preserve a challenge to a witness=s qualifications to testify as an expert,[1] appellant=s second point of error presents nothing for our review and is overruled. Accordingly, the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed October 19, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

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

[1] See In re M.D.S., 1 S.W.3d 190, 202 (Tex. App.CAmarillo 1999, no pet.).