Nirschl v. StateNirschl v. State
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- Quinn
Appellant, Leo John Nirschl, appeals from an adjudication of guilt and life sentence. In his sole point of error, appellant asks whether the court erred in denying him a punishment hearing after thе court adjudicated him guilty. 1 However, the true issue involves the *219 need and manner in which to preserve such a complaint. Concluding that the error was not preserved, wе overrule the point.
It is axiomatic that after an adjudication of guilt, the trial court must extend the defendant opportunity to prеsent evidence upon the issue of punishment. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992). The rule is simрle, self-explanatory, and without any hidden nuance. Yet, despite its clarity, it all too often goes ignored. Should that circumstancе occur, a defendant is not entitled to sit back, remain silent, and simply complain to the appellate court. Quite the contrary, he must broach the matter with the trial judge. Gober v. State, 917 S.W.2d 501, 502 (Tex.App. — Austin 1996, no pet.); Christian v. State, 870 S.W.2d 86, 88 (Tex.App. — Dallas 1993, no pet.); accord Borders v. State, 846 S.W.2d 834, 835-36 (Tex.Crim.App.1992) (holding that the mаtter was not waived since the appellant presented it to the. trial court via his motion for new trial). Furthermore, he can do this in either of two ways, that is, by contemporaneous objection оr by motion for new trial. Id.
In so raising the mistake, the appellant comports his actions with Texas Rule of Appellate Procedurе 52(a). According to that rule, a litigant must present the alleged errоr “to the trial court [by] a timely request, objection or motion, stating thе specific grounds for the ruling ... desired” as a prerequisite to asserting it on appeal.
Herе, appellant neither objected when the error purportedly occurred nor moved for new trial. Thus, he failed to presеrve the point.
Accordingly, we affirm the judgment.
Notes
. The court had previously deferred appеllant’s adjudication of guilt and placed him on community supervision. Thе State later moved to have his guilt adjudicated. The court convened a *219 hearing, granted the motion, adjudicated him guilty and sentenсed him to life.
. To the extent that Watson v. State, 884 S.W.2d 836 (Tex.App. — El Paso 1994, pet. granted) purports to relieve the appellant from first complaining to the trial judge, we believe it wrong. The opinion reveals no effort on the part of the court to heed the directive of or reconcile its decision with Texas Rule of Appellate Procedure 52(a). Indeed, the court there recognized that appellant could hаve, moved for new trial but quickly brushed that avenue aside via the statement that such a motion “is not a prerequisite to presenting a point of error on appeal.” Id. at 839. Then, it simply concluded thаt the appellant “did not have an opportunity to object” at the time the error was made. Id. at 838-39. Yet, the rule demands objeсtion at the earliest opportunity. Penry v. State, 903 S.W.2d 715, 763 (Tex.Crim.App.), ce rt. denied,-U.S.-, 116 S.Ct. 480, 133 L.Ed.2d 408, (1995). If the earliest opportunity presented itself post judgment via a motion for new trial, there is nо reason why Watson should be freed from having to take it. Nor did the Watson court deign to provide a reasonable explanation. In short, we opt not to follow Watson because it lacks legal foundation.