IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 19, 2004
______________________________RICARDO DWAYNE GOMEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 8,543-B; HON. JOHN B. BOARD, PRESIDING _______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
Appellant Ricardo Dwayne Gomez appeals his conviction for driving while intoxicated. Pursuant to a plea bargain, appellant entered a plea of guilty to the charge, and the trial court assessed punishment at five years in prison. However, the sentence was suspended and appellant was placed on three years community supervision. The trial court eventually revoked appellant's probation, upon motion by the State, and sentenced him to five years imprisonment. Appellant timely noticed his appeal, and counsel was appointed. The latter moved to withdraw after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and representing that she had searched the record and found no arguable grounds for reversal. The motion and brief illustrated that appellant was informed of his rights to review the appellate record and file his own brief. So too did we inform appellant that any brief he cared to file had to be filed by March 11, 2004. To date, appellant has filed no pro se response or brief. Nor has he moved for an extension of time to file same.
After conducting an independent review of the record, we find no reversible error. Appellant informed the court via the plea admonishment papers he signed that he was 1) properly indicted, 2) represented by legal counsel, and 3) mentally competent when entering his plea. Furthermore, the punishment levied was within the range provided by statute. And, because no appeal was taken within 30 days from the date of appellant's initial conviction, we have no jurisdiction over purported error arising at or before his original plea hearing. Manuel v. State, 994 S.W.2d 658, 661 ( Tex. Crim. App. 1999).
Accordingly, counsel's motion to withdraw is granted, and the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
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NO. 07-09-00262-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
AUGUST 6, 2010
BRET ALAN AVERY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 19,996-C; HONORABLE ANA ESTEVEZ, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Bret Alan Avery, appeals his conviction by jury for the offense of possession of a controlled substance in a drug-free zone,[1] and sentence, enhanced by final conviction of a prior felony,[2] of seventeen years incarceration in the Institutional Division of the Texas Department of Criminal Justice. We affirm.
Appellants sole issue on appeal contends that the final felony conviction used to enhance his sentence was void and, therefore, its use was precluded to enhance his punishment. As such, we will limit our discussion of the facts to those relevant to the issue raised by appellant.
Following the jurys verdict finding appellant guilty of possession of a controlled substance in a drug-free zone, the case proceeded to punishment. Appellant pled true to the allegation of the prior final felony conviction contained in the indictment. The State introduced a 2006 judgment convicting appellant of possession of a controlled substance with intent to deliver. This judgment indicates that the offense for which appellant was convicted was a first-degree felony, yet it also indicates that he was sentenced to serve two years incarceration in the Institutional Division of the Texas Department of Criminal Justice. When this judgment was offered into evidence, appellant affirmatively stated that he had no objection.
On appeal, appellant contends that the two year sentence in the 2006 judgment falls below the minimum sentence allowed for a first-degree felony and, therefore, is an illegal sentence that makes the entire judgment void and unavailable to enhance his present conviction. See Tex. Penal Code Ann. § 12.32(a) (Vernon Supp. 2009) (punishment range for first-degree felony is five to ninety-nine years, or life). Appellant correctly contends that It is now axiomatic that the punishment assessed must always be within the minimum and maximum fixed by law. Wilson v. State, 677 S.W.2d 518, 524 (Tex.Crim.App. 1984). The only authority cited by appellant in support of his position is Wilson.
However, by failing to object to the alleged infirmity of the prior conviction used to enhance the sentence at the time of trial, appellant has waived the issue.
The failure to object at trial to the introduction of proof of a[n] allegedly infirm prior conviction precludes a defendant from thereafter attacking a conviction that utilized the prior conviction. If an objection is timely lodged on proper grounds, the trial court can finally determine, at trial, whether the prior conviction was permissibly obtained and whether it is admissible as evidence.
Hill v. State, 633 S.W.2d 520, 525 (Tex.Crim.App. 1981); see also Spivey v. State, No. 05-09-00300-CR, 2010 Tex.App. LEXIS 3133, at *14-*15 (Tex.App.--Dallas Apr. 29, 2010, no pet. h.) (Failure to object to the admission of prior convictions waives the right to collaterally attack the conviction on appeal.). While the sentence imposed in Wilson was reversed because it was enhanced by an illegal sentence that was less than the minimum allowed by statute, the appellant in Wilson raised this issue in the trial court. See Wilson, 677 S.W.2d at 520. The duty to preserve an appellate issue regarding the validity of a prior conviction used to enhance a present sentence has continued to be upheld by the Texas Court of Criminal Appeals. See Ex parte Dietzman, 851 S.W.2d 304, 306 (Tex.Crim.App. 1993) (prior conviction found to have been void would not be available to enhance Applicants punishment provided the error was raised in the trial court); Fullbright v. State, 818 S.W.2d 808, 809 (Tex.Crim.App. 1991) (objection by defendant at trial preserved appellate complaint of void enhancement conviction).
Because appellants sole issue was not raised in the trial court, the issue has been waived and, therefore, presents nothing for our review. See Hill, 633 S.W.2d at 525. Consequently, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
[1] See Tex. Health & Safety Code Ann. §§ 481.115(a), (b), 481.134 (Vernon 2010).
[2] See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon Supp. 2009).