Adolfo Patino, Jr. v. The State of Texas--Appeal from 83rd Judicial District Court of Val Verde County

MEMORANDUM OPINION

No. 04-04-00327-CR

Adolfo PATINO, Jr.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 83rd Judicial District Court, Val Verde County, Texas

Trial Court No. 9387

Honorable Carl Pendergrass, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 6, 2005

AFFIRMED

Defendant, Adolfo Patino, Jr., pled guilty before the jury of indecency with a child by contact, and the jury assessed punishment at fifteen years confinement and a $4000 fine. Because all issues of law are settled, our opinion only advises the parties of the court s decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

CHARGE ERROR

During the punishment phase, evidence that defendant had been arrested for trespassing was admitted. The jury charge on punishment did not include an instruction that such an extraneous offense must be proven beyond a reasonable doubt before it could be considered by the jury in assessing punishment. See Tex. Code Crim. Proc. Ann. art. 37.07 3(a) (Vernon Supp. 2005). However, because defendant did not object at trial to the omission, he must establish, on appeal, that the error was egregious. Huizar v. State, 12 S.W.3d 479, 484-85 (Tex. Crim. App. 2000). In his first issue, defendant contends, without explanation, that the harm was fundamental. We disagree. In closing arguments, the prosecutor did not mention the trespass charge and he repeatedly asked the jury to assess the maximum punishment of twenty years and a fine not to exceed $10,000. Because the jury assessed punishment at less than the maximum, there is no indication that the lack of an instruction resulted in a greater sentence for defendant. Therefore, defendant has not established egregious harm.

CLOSING ARGUMENTS

In his second, third, and fourth issues, defendant complains about statements made by the prosecutor during closing arguments. The failure to object to impermissible jury argument waives any error. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). Defendant neither objected, nor requested an instruction to disregard; therefore, his arguments present nothing for appellate review.

We affirm the trial court s judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH