David Dare Croom v. The State of Texas--Appeal from 264th District Court of Bell County

state v. david croom TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00007-CR
David Dare Croom, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 45,667, HONORABLE OLIVER KELLEY, JUDGE PRESIDING

Appellant, David Dare Croom, appeals his conviction of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. 22.02 (West 1994). The trial court assessed punishment at seven years' imprisonment. We will affirm the judgment.

 
BACKGROUND

Appellant was charged with aggravated assault with a deadly weapon and intoxication assault for the serious bodily injury he caused Patria Delrosario. See Tex. Penal Code Ann. 22.02, 49.07 (West 1994). Appellant filed both a motion to quash the indictment and a motion to suppress evidence of his blood alcohol content. The trial court overruled appellant's motion to quash the indictment. (1) Thereafter, appellant entered a non-negotiated plea of guilt to the offense of aggravated assault with a deadly weapon. The trial court accepted his plea and assessed punishment at seven years' imprisonment. On appeal, appellant contends that the trial court erred by: (1) overruling his motion to quash the indictment for charging a general offense over a specific one, and (2) overruling his motion to suppress the blood alcohol evidence.

 
DISCUSSION

After the trial court overruled appellant's motion to quash the indictment, appellant entered a guilty plea without a plea agreement. A defendant who pleads guilty pursuant to a plea bargain can appeal those matters which were raised by written motion filed before trial. Tex. R. App. P. 40(b)(1). However, one who enters a guilty plea without a plea agreement waives all non-jurisdictional defects occurring before the guilty plea. Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972); see also Jack v. State, 871 S.W.2d 741, 742 (Tex. Crim. App. 1994). A complaint directed to the indictment is one of substance and non-jurisdictional in nature. Studer v. State, 799 S.W.2d 263, 272-73 (Tex. Crim. App. 1990). Appellant, therefore, waived any complaint regarding the indictment when he entered the guilty plea without a plea bargain. In any event, the complaint is without merit. See generally Cullen v. State, 832 S.W.2d 788 (Tex. App.--Austin 1992, pet. denied). We therefore overrule appellant's first point of error.

In his second point of error, appellant complains that the trial court improperly overruled a motion to suppress evidence of his blood alcohol content. Even if error, the trial court's ruling is non-jurisdictional. See Moss v. State, No. 03-95-00636-CR, slip op. at 4-5 (Tex. App.--Austin Dec. 5, 1996, no pet. h.). For the reason already stated above, appellant waived any complaint regarding his motion to suppress when he entered a guilty plea. Additionally, the record presented to this Court does not show that the trial court ruled upon appellant's motion to suppress. Therefore, he has not preserved the matter for review. See Tex. R. App. P. 52(a). Appellant bears the burden of presenting this Court with a sufficient record establishing error requiring reversal. See id.; Tex. R. App. P. 50(d). By failing to present a statement of facts, appellant has failed to establish the trial court's ruling that he asserts was error. For this additional reason, appellant has waived any error. Johnson v. State, 894 S.W.2d 529, 535 (Tex. App.--Austin 1995, no pet.). Finally, although the record does not show that the challenged evidence was admitted, appellant was not convicted of an offense involving alcohol. Accordingly, appellant has not demonstrated how admission of the blood alcohol evidence could be harmful. We therefore overrule appellant's second point of error.

 
CONCLUSION

Having overruled appellant's two points of error, we affirm the judgment of the trial court.

 

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: December 12, 1996

Do Not Publish

1. Appellant did not file a statement of facts on appeal; therefore, we are limited to the information provided in the transcript. The transcript does not show that the trial court ruled on appellant's motion to suppress.

ND

Appellant was charged with aggravated assault with a deadly weapon and intoxication assault for the serious bodily injury he caused Patria Delrosario. See Tex. Penal Code Ann. 22.02, 49.07 (West 1994). Appellant filed both a motion to quash the indictment and a motion to suppress evidence of his blood alcohol content. The trial court overruled appellant's motion to quash the indictment. (1) Thereafter, appellant entered a non-negotiated plea of guilt to the offense of aggravated assault with a deadly weapon. The trial court accepted his plea and assessed punishment at seven years' imprisonment. On appeal, appellant contends that the trial court erred by: (1) overruling his motion to quash the indictment for charging a general offense over a specific one, and (2) overruling his motion to suppress the blood alcohol evidence.

 
DISCUSSION

After the trial court overruled appellant's motion to quash the indictment, appellant entered a guilty plea without a plea agreement. A defendant who pleads guilty pursuant to a plea bargain can appeal those matters which were raised by written motion filed before trial. Tex. R. App. P. 40(b)(1). However, one who enters a guilty plea without a plea agreement waives all non-jurisdictional defects occurring before the guilty plea. Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972); see also Jack v. State, 871 S.W.2d 741, 742 (Tex. Crim. App. 1994). A complaint directed to the indictment is one of substance and non-jurisdictional in nature. Studer v. State, 799 S.W.2d 263, 272-73 (Tex. Crim. App. 1990). Appellant, therefore, waived any complaint regarding the indictment when he entered the guilty plea without a plea bargain. In any event, the complaint is without merit. See generally Cullen v. State, 832 S.W.2d 788 (Tex. App.--Austin 1992, pet. denied). We therefore overrule appellant's first point of error.

In his second point of error, appellant complains that the trial court improperly overruled a motion to suppress evidence of his blood alcohol content. Even if error, the trial court's ruling is non-jurisdictional. See Moss v. State, No. 03-95-00636-CR, slip op. at 4-5 (Tex. App.--Austin Dec. 5, 1996, no pet. h.). For the reason already stated above, appellant waived any complaint regarding his motion to suppress when he entered a guilty plea. Additionally, the record presented to this Court does not show that the trial court ruled upon appellant's motion to suppress. Therefore, he has not preserved the matter for