Opinion
No. 05-06-01294-CR
Opinion issued July 24, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 204th District Court Dallas County, Texas, Trial Court Cause No. F05-58514-KQ.
Before Justices MORRIS, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Tommy James Miller appeals his conviction for possessing with intent to deliver cocaine. Appellant pled guilty, and a jury sentenced him to forty-five years' confinement and a $10,000 fine. In a single issue, appellant complains article 37.07 of the code of criminal procedure denied him his right to counsel and to due course and due process of law by permitting evidence of pending sexual assault charges. We affirm the trial court's judgment. Appellant pled guilty to the offense of possession of more than four but less than 200 grams of cocaine with intent to deliver. During a hearing outside the jury's presence at the punishment phase of trial, appellant's counsel stated the trial had reached the point where appellant would have to decide whether or not to testify. Appellant stated he understood he had a right not to testify, and the jury could not use that against him. Appellant's counsel stated she had advised appellant not to testify and explained to him that, if he testified, "anything about [him] that anybody knows from the State could come in and the jury would know it." Appellant said he understood. Nevertheless, appellant said he wanted to "Take the witness stand." The trial court admonished appellant that, by taking the witness stand, appellant would open himself to "questions which will prove up other offenses that the jury doesn't even know about." Appellant maintained that he wanted to testify. The trial court admonished appellant that, if appellant testified and made admissions of guilt in other crimes, those statements could be used against him in "the other two drug cases" and "these two indecency cases." After conferring with his counsel, appellant decided not to testify. The jury sentenced appellant to forty-five years' confinement, and this appeal followed. In his sole issue, appellant argues section 37.07 of the code of criminal procedure is unconstitutional as applied to him. Specifically, appellant argues he was denied his right to counsel and to due course and due process of law by permitting evidence of pending sexual assault charges. However, appellant never raised these objections at trial. To preserve an issue for appellate review, the complaining party must make a timely, specific objection and obtain a ruling. Tex. R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). Even constitutional challenges may be waived by failure to object. See Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995). Thus, by failing to request that the trial court find section 37.07 unconstitutional as applied to him, appellant has waived this argument on appeal. See Toma v. State, 126 S.W.3d 528, 529 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (although facial constitutional challenge may be raised at any time, appellant must object to preserve complaint statute is unconstitutional as applied). Accordingly, we overrule appellant's sole issue. We affirm the trial court's judgment.