NO. 07-10-0447-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 15, 2012
______________________________
PAUL DOUGLAS PERRY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 59,797-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Paul Douglas Perry, pled guilty to driving while intoxicated, three
offenses or more,1 and was sentenced to five years confinement. As Appellant's plea
was not entered pursuant to a plea bargain, the trial court certified Appellant's right to
appeal. In a single issue, Appellant asserts the trial court erred by finding him guilty of
1
See Tex. Penal Code Ann. § 49.09(b) (West 2011).
“driving while intoxicated, a subsequent offense” and imposing a sentence for a third
degree felony rather than a Class A misdemeanor.2 We affirm.
Background
In May 2010, an indictment was filed alleging that, on or about April 13, 2009,
Appellant committed a DWI offense with two prior DWI convictions. Appellant and his
attorney subsequently executed Written Plea Admonishments, Defendant’s Waivers
and Statement of Admonishments wherein Appellant indicated that he was charged with
the “felony offense of DWI—3rd or more.” He also stated that the range applicable to a
third degree felony applied to his case, i.e., "imprisonment in the Institutional Division of
the Texas Department of Criminal Justice for any term of not more than 10 years or less
than 2 years and, in addition, a fine not to exceed $10,000," and that his plea of guilty
was being given freely, knowingly, and voluntarily. Appellant also signed a Waiver of
Jury Trial wherein he stated that he was sane and reiterated that his plea was knowing,
voluntary and freely given. He and his attorney also signed a Judicial Confession where
he indicated that he had read the indictment, had “committed each and every allegation
it contains,” and was “guilty of the offense alleged as well as all lesser included
offenses.”
At the plea hearing held August 16, 2010, Appellant pled guilty to the offense
alleged in the indictment and the following statements, in pertinent part, were made:
COURT: Alright. Does the State have anything further on
guilt/innocence?
2
Driving while intoxicated is a Class B misdemeanor for the first offense; Tex. Penal Code Ann. § 49.04(b)
(West 2011), a Class A misdemeanor if there is a prior offense; id. at § 49.09(a), and a felony of the third
degree if there are two prior offenses. Id. at § 49.09(b)(2).
2
STATE: Nothing further on guilt/innocence.
COURT: Defense?
DEFENSE: No, Your Honor.
COURT: All right. I’ll find you guilty there, Mr. Perry, of driving while
intoxicated, a subsequent offense. I’ll find the other allegations
contained—jurisdictional allegations contained in the indictment to be true.
Are you ready to proceed on punishment, State?
STATE: Ready to proceed, your honor.
COURT: Okay. Defense ready on punishment?
DEFENSE: Ready.
* * *
COURT: Paul Douglas Perry, you having been found guilty of driving
while intoxicated, I do now sentence you to serve five years [confinement].
(Emphasis added).
The trial court subsequently issued its Judgment of Conviction stating that
Appellant was convicted of the offense of “DWI-3rd or more” under "section 49.09(B)" of
the Texas Penal Code, a third degree felony. This appeal followed.
Discussion
Appellant asserts the trial court’s oral pronouncement of its verdict is ambiguous
as to whether he was convicted of felony DWI, third offense or more, or a Class A
misdemeanor, i.e., a DWI offense with one prior offense. He contends that, because an
unspecific pronouncement of sentence should not be held against a defendant, the trial
court’s judgment should be reformed to reflect the lesser offense.
3
To preserve a complaint for appellate review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds for the
desired ruling if they are not apparent from the context of the request, objection, or
motion. Tex. R. App. P. 33.1(a); Layton v. State, 280 S.W.3d 235, 238-39
(Tex.Crim.App. 2009). Further, the trial court must have ruled on the request, objection,
or motion, either expressly or implicitly, or the complaining party must have objected to
the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2). It is well-settled that, almost
every right, constitutional or statutory, may be waived by failing to object. Smith v.
State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). See Curry v. State, 910 S.W.2d
490, 497 (Tex.Crim.App. 1995) (an objection on cruel and unusual punishment must be
made in the trial court or it is waived on appeal).
We have reviewed the entire record. At no point during the guilt/innocence or
punishment phases of his trial or in his Motion for a New Trial does Appellant ever
object to the trial court’s acceptance of his plea to the third degree felony offense
alleged in the indictment or the sentence imposed. Accordingly, he failed to preserve
his complaint for appellate review. See Curry, 910 S.W.2d at 497; Battle v. State, 348
S.W.3d 29, 30-31 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d). Appellant’s single
issue is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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