Criminal Cases decided by the 5th Court of Appeals on July 12, 2017

The 5th Court of Appeals decided JESUS ANTONIO PONCE, Appellant v. THE STATE OF TEXAS, Appellee, on July 12, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Assault..

The case was on appeal from Criminal District Court No. 3 in Dallas County, Texas, as Trial Court Cause Nos. F12-70299-J & F14-33407-J. From the appellate court:

Jesus Antonio Ponce appeals the revocation of his community supervision probation in two separate family violence cases. In a single issue, appellant argues the trial court abused its discretion in revoking his probation because the probation department’s failure to place him on the Mental Health and Mental Retardation (“MHMR”) caseload resulted in an impermissible modification to the conditions of his community supervision and violated his right to due process. The State brings one cross-issue requesting that we modify the judgment in trial court cause number F14-33407-J to accurately reflect what occurred in the trial court below. We resolve appellant’s single issue against him. We modify the judgment in cause number F14- 33407-J as requested by the State and affirm the judgment as reformed. We additionally affirm the trial court’s judgment in trial court cause number F12-70299-J.

A review of the record shows that appellant did not object or otherwise bring to the trial court’s attention any complaint regarding an alleged modification of the conditions of his community supervision. Nor did appellant make any argument to the trial court that the probation department’s failure to place him on the MHMR caseload caused him to violate the other terms of his community supervision. Generally, a party must first complain in the trial court to preserve a complaint for appellate review. See Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013). Even alleged constitutional errors, such as a denial of due process, may be waived by the failure to object at trial. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Because appellant did not raise this issue in the trial court, he has failed to preserve it for review.

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Criminal Cases decided by the 5th Court of Appeals on July 12, 2017 – The Dallas Lawyer