NO. 12-04-00034-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TAMMIE LOVELL, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW
THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Tammie Lovell (“Appellant”) was convicted of class B misdemeanor criminal mischief and was sentenced to 180 days of confinement in the Houston County Jail, probated for one year. Appellant raises one issue on appeal. We affirm.
Background
On September 19, 2002, Heath Lovell (“Lovell”) filed a complaint against Appellant, alleging that on or about August 15, Appellant
[i]ntentionally, knowingly, damage[d] or destroy[ed] tangible property, to-wit [a] 1998 Toyota Four Runner [sic] located on Corto Street in Crockett by hitting the vehicle with her vehicle without the effective consent of Heath Lovell, the owner of said property, and did thereby cause pecuniary loss of $500 or more but less than $1,500 to the said owner.
That same day, Galen Gatten (“Gatten”), an assistant county attorney for Houston County, filed an information against Appellant, alleging that on or about August 15, Appellant
intentionally or knowingly damage[d] or destroy[ed] tangible property, to-wit: a motor vehicle, by striking said motor vehicle with another motor vehicle, without the effective consent of Heath Lovell, the owner of said property, and did thereby cause pecuniary loss of $50 or more but less than $500 to the said owner.
On November 19, Appellant filed a motion to quash the information, contending that the information was defective because it 1) did not state the offense charged against Appellant in plain and intelligible words, 2) failed to state the offense with certainty as to enable Appellant “to plead any judgment that may be given upon it in bar of any prosecution for the same offense,” 3) failed to charge Appellant in ordinary and concise language in a manner that gave Appellant notice of the charged offense, 4) failed to allege the manner in which the offense charged was committed, and 5) did not allege all of the facts, acts, and omissions by Appellant that would constitute a violation of Texas law. The trial court did not rule on this motion.
Appellant pleaded “not guilty” to the offense charged and the matter proceeded to a jury trial. At the conclusion of the trial, the jury was instructed that if it found from the evidence, beyond a reasonable doubt, that on or about August 15, 2002, Appellant
. . . did then and there intentionally or knowingly damage or destroy tangible property, to-wit: a motor vehicle, by striking said motor vehicle with another motor vehicle, without the effective consent of the owner, HEATH LOVELL, and did thereby cause pecuniary loss of $50.00 or more but less than $500.00 to the said owner, then you will find the defendant guilty as charged.
The jury returned a “guilty” verdict against Appellant. The trial court then sentenced Appellant to 180 days of confinement in the Houston County Jail, probated for one year. Appellant was also ordered to complete 40 hours of community service and pay $750.00 in attorney’s fees, $283.00 in court costs, and $45.00 per month for probation fees.
On appeal, Appellant contends that the trial court should have granted the motion to quash because there was a substantial discrepancy between the complaint and the information.
Analysis
Appellant argues that the information should have been quashed because it alleged a class B misdemeanor offense, while the complaint alleged a class A misdemeanor offense. Specifically, the information alleged pecuniary loss “of $50 or more but less than $500" (a class B misdemeanor); however, the complaint alleged pecuniary loss of “$500 or more but less than $1,500” (a class A misdemeanor). See Tex. Pen. Code Ann. § 28.03(b)(2), (3) (Vernon Supp. 2004).
We must first note that in order to present an issue for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). The request, objection, or motion must state the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). The trial court must have ruled on the request, objection, or motion, either expressly or implicitly. Tex. R. App. P. 33.1(a)(2)(A). If the trial court refused to rule, the complaining party must have objected to the refusal. Tex. R. App. P. 33.1(a)(2)(B).
In the instant case, the trial court never ruled on Appellant’s motion to quash. During a pretrial hearing, the trial court acknowledged that it had not ruled on the motion to quash; however, Appellant’s counsel neither asked for a ruling nor objected to the failure to rule in order to preserve error. Accordingly, Appellant has waived any error regarding the motion to quash or the trial court’s failure to rule on the motion. See Prince v. State 137 S.W.3d 886, 888 (Tex. App.–Houston [1st Dist.] 2004, no pet.) (any error regarding the trial court’s refusal to grant three motions to quash information was waived where defendant failed to secure an adverse ruling on the motions).
Appellant’s sole issue is overruled.
Disposition
The judgment of the trial court is affirmed.
DIANE DEVASTO
Justice
Opinion delivered September 30, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)