Deshazo-George Post 68-American Legion v. Texas Alcoholic Beverage Commission ( 2010 )

NO. 07-09-0185-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 15, 2010

DESHAZO-GEORGE POST #68 -- AMERICAN LEGION, APPELLANT

V.

TEXAS ALCOHOLIC BEVERAGE COMMISSION, APPELLEE

 FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

NO. 12,285; HONORABLE STEVEN EMMERT, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Pending before this Court is Appellant's Motion To Dismiss Appeal in which he represents he no longer wishes to pursue this appeal.  Without passing on the merits of the case, Appellant's motion is granted and the appeal is dismissed.  Tex. R. App. P. 42.1(a)(1).  Having dismissed the appeal at Appellant's request, no motion for rehearing will be entertained and our mandate shall issue forthwith.  

                                                                                                Patrick A. Pirtle

                                                                                                      Justice 

ned only one allegation, “[T]hat the verdict is contrary to the law and the evidence which was presented in these cases.” Appellant now contends that the punishment set forth violates his due process rights under the United States Constitution.  See U.S. Const. amend VIII.  We disagree and will affirm the trial court’s judgment.

Preservation of Error

            Before we can begin any analysis, we must determine if appellant’s complaint has been preserved for appellate review.  See Tex. R. App. P. 33.1(a)(1).[5]  Appellant couches his argument in terms of a due process violation.  However, the Texas Court of Criminal Appeals has ruled that allegations of due process violations are subject to the requirement of preservation by an objection or motion filed with the trial court.  See Anderson v. State, 301 S.W.3d 276, 279-80 (Tex.Crim.App. 2009). Our review of the record reveals that appellant lodged no objection to the trial court’s sentences at the time of the punishment hearing.  Further, the subsequently filed motion for new trial contains no reference to appellant’s due process argument.  A fair reading of the motion for new trial does not lead us to the conclusion that appellant’s current argument was apparent from the context of the motion. Rule 33.1(a)(1).  Accordingly, appellant’s issue has not been preserved for review and is therefore waived. Anderson, 301 S.W.3d 279-80.  Appellant’s sole issue is overruled.

Conclusion

            Having overruled appellant’s only issue, the judgments of the trial court are affirmed.

                                                                                                Mackey K. Hancock

                                                                                                            Justice

Do not publish. 

---

[1] See Tex. Penal Code Ann. § 31.03(b), (e)(4)(D) (West 2011). (No. 07-10-0408-CR).

[2] See Tex. Health & Safety Code Ann. § 481.115(a), (c) (West 2010). (No. 07-10-0409-CR).

[3] See Tex. Penal Code Ann. § 12.42(a)(3) (West 2011).

[4] See Tex. Health & Safety Code Ann. § 481.115(a), (b). (No. 07-10-0410-CR).

[5] Further reference to the Texas Rules of Appellate Procedure will be by reference to “Rule ___.”