Opinion
Nos. 05-07-00512-CR, 05-07-00513-CR
Opinion issued November 10, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 380th District Court Collin County, Texas, Trial Court Cause Nos. 380-80871-06, 380-81157-06.
Before Justices WHITTINGTON, FITZGERALD, and LANG-MIERS. Opinion by Justice FITZGERALD.
MEMORANDUM OPINION
Unique Javon Elmore appeals his convictions for delivery of cocaine. After the jury found appellant guilty, it assessed his punishment at seventeen years' imprisonment. In a single issue, appellant contends the trial court erred in overruling his objection to prosecution of both charges in a single criminal action because the State failed to give appellant thirty days' notice as required by section 481.132(b) of the Texas Health Safety Code. See Tex. Health Safety Code Ann. § 481.132(b) (Vernon 2003). We affirm the trial court's judgments. Appellant was charged with delivery of cocaine in two indictments. Section 481.132(b) provides that a defendant "may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. If a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, not later than the 30th day before the date of the trial, the state shall file written notice of the action." Id. Paragraph (e) provides, "If it appears that a defendant or the state is prejudiced by a joinder of offenses, the court may order separate trials of the offenses or provide other relief as justice requires." Id. § 481.132(e). On the day of trial of these two offenses, immediately before jury selection began, appellant's counsel told the trial court,
The Defendant objects to being tried for more than one case at one time. He is entitled to be tried for his alleged involvement in the crimes alleged in the three indictments separately. To try them together is to invite the jury to convict him for being a criminal generally rather than for his guilt or innocence of the offense with which he's charged, so we would ask that the court proceed with one of the three cases, any one is fine with us, and defer the trial of the other two for a later time.(Footnote added.) The trial court overruled the objection. On appeal, appellant's sole issue contends, "The Court erred in overruling Appellant's objection to the consolidation of two criminal transactions for trial. The State failed to provide prior notice of its intent to try both cases in a single proceeding as required by Tex. Health Safety Code § 481.132." To preserve error for appellate review, the defendant must specifically object in the trial court, and the objection at trial must comport with the issue raised on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). In this case, appellant's objection at trial was pursuant to section 481.132(e), requiring separate trials due to prejudice from a joinder of offenses. Appellant's issue on appeal, however, is misjoinder of offenses due to lack of the notice required by section 481.132(b). Because appellant's issue on appeal does not comport with his objection at trial, we conclude he has not preserved error. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992) (defendant may waive lack of notice of intent to join offenses under Texas Penal Code section 3.02(b) by not objecting). We overrule appellant's sole issue on appeal. We affirm the trial court's judgments.
Appellant was originally charged with three offenses, and his attorney stated he understood the prosecutor was not intending to proceed that day on one of the charges.
When appellant restated the issue, he worded it slightly differently, substituting the word for "prose[cu]tions" for "transactions."