Opinion
Nos. 05-07-01129-CR, 05-07-01130-CR
Opinion Filed August 7, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F06-89327-UJ and F06-89328-UJ.
Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Charlie Rattler waived a jury and pleaded guilty to aggravated assault and violation of a protective order, and pleaded true to an enhancement paragraph in each case. The trial court found the enhancement paragraphs true and assessed Rattler's punishment at twelve years' confinement for each offense. Rattler appeals the trial court's judgments, contending the trial court erred in allowing the protective order case to go forward on a defective indictment, in failing sua sponte to withdraw Rattler's guilty pleas, and in failing to invite Rattler to allocute. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the judgments of the trial court. In his first issue, Rattler contends the indictment for violation of a protective order fails to allege family violence and thus cannot support his conviction. However, Rattler concedes that he did not object to the indictment in the trial court. Our resolution of this issue is governed by statute:
If 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 or in any other postconviction proceeding.Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Rattler's failure to object to a substantive defect in the indictment before his trial began waived his right to complain of the defect on appeal. Rattler urges a battery of factual and equitable arguments in an attempt to avoid the statutory pronouncement, but he cannot. Rattler forfeited his right to raise the objection on appeal. See Lockett v. State, 874 S.W.2d 810, 816 (Tex.App.-Dallas 1994, pet. ref'd). We decide his first issue against him. In his second and third issues, Rattler argues the trial court's failure to withdraw his guilty pleas sua sponte violated his due process rights. Rattler contends that, because the record "betrays a disavowal of responsibility for the crimes" by appellant, his pleas could not have been voluntary. See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (record must show guilty plea is entered voluntarily and knowingly). Rattler's testimony at trial included a number of explanations or excuses for his behavior in violating the protective order and then assaulting his wife. But once again, Rattler has preserved nothing for this Court's review. He did not preserve his complaint in accordance with appellate rules. See Tex. R. App. P. 33.1(a)(1). As a result, any error is waived. Mendez v. State, 138 S.W.3d 334, 339 (Tex.Crim.App. 2004). Moreover, when the trial court acts as the fact finder, as it did in Rattler's case, it is not required to withdraw a defendant's guilty plea sua sponte and enter a plea of not guilty because no purpose would be served by doing so. See Aldrich v. State, 53 S.W.3d 460, 467 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). We decide Rattler's second and third issues against him as well. Finally, in his fourth and fifth issues, Rattler contends that by failing to ask whether he had anything to say before sentence was imposed, the trial court denied both his common law and statutory rights of allocution. See Green v. United States, 365 U.S. 301, 304 (1961); Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon 2006). But Rattler did not complain about this omission, either at the time the sentence was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1). By failing to bring the issue before the trial court by proper objection or motion, Rattler has waived any perceived error. See id.; Tenon v. State, 563 S.W.2d 622, 623-24 (Tex.Crim.App. [Panel Op.] 1978). Moreover, the right of allocution under article 42.07 applies to legal reasons sentences should not be imposed. Rattler has not identified any such legal reasons that prohibited sentencing. We decide Rattler's fourth and fifth issues against him. We affirm the judgments of the trial court.