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NUMBER 13-05-00133-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
ROLANDO VEGA, JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Hinojosa
This is a revocation of community supervision case. In a single issue, appellant, Rolando Vega, Jr., contends the trial court lacked jurisdiction to find him guilty of a state jail felony offense, and subsequently revoke his community supervision, because the indictment charged him only with a misdemeanor offense. We affirm.
A. Background
Appellant fled from police officers who were responding to a call of terroristic threats and a firearm being displayed. The police report indicates appellant was arrested and charged with the offense of Aevading arrest/detention using vehicle.@ He was later indicted for Aevading arrest or detention.@
The trial court (1) admonished appellant that he was charged by indictment with the state jail felony offense of evading arrest or detention, and (2) informed him of the range of punishment for the offense. Pursuant to a plea agreement, appellant pleaded nolo contendere to the charge. The trial court found him guilty and, in accordance with the plea agreement, (1) assessed his punishment at two years= confinement in a state jail facility and a $1,500 fine, (2) suspended the jail sentence, and (3) placed him on community supervision for a term of three years.
On December 17, 2004, the State moved to revoke appellant=s community supervision, and the trial court heard the motion on January 21, 2005. Appellant pleaded Anot true@ to both of the State=s allegations. After considering the motion, the trial court found one of the allegations to be true, revoked appellant=s community supervision, and imposed the original sentence of two years= confinement in a state jail facility. This appeal ensued.
B. Discussion
Section 38.04 of the Texas Penal Code provides that a person commits the offense of evading arrest or detention if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. Tex. Pen. Code Ann. ' 38.04(a) (Vernon 2003). An offense under section 38.04 is a Class B misdemeanor, Aexcept that the offense is a state jail felony if the actor uses a vehicle while the actor is in flight.@ Tex. Pen. Code Ann. ' 38.04(b)(1).
The indictment alleged that ARolando Vega, Jr. on or about the 10th day of November A.D., 2002 . . . did then and there intentionally flee from Joel Bear, a person [appellant] knew was a peace officer who was attempting lawfully to arrest or detain [appellant].@ Appellant asserts that because the indictment does not allege that he used a vehicle in the commission of the offense, he was charged only with a misdemeanor offense. Further, because the county court has original jurisdiction over Class B misdemeanors, the district court lacked jurisdiction to find him guilty of the offense.
AIf the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal.@ Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); see Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990); see also Gearheart v. State, 122 S.W.3d 459, 465 (Tex. App.BCorpus Christi 2003, pet. ref=d).
Appellant failed to raise any objection to the indictment prior to entering his plea of nolo contendere, or when he was admonished by the trial court that he had been charged with a state jail felony offense. Because he failed to object, we conclude appellant waived any right to complain on appeal about a defect, if any, in the indictment. Appellant=s sole issue is overruled.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this
the 27th day of July, 2006.