                                 NO. 07-10-0191-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 MARCH 8, 2011
                         ______________________________

                              FRANCISCO F. SALINAS,

                                                            Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                         _____________________________

            FROM THE 364th DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 2005-409,638; HON. BRADLEY S. UNDERWOOD, PRESIDING
                       ______________________________

                              Memorandum Opinion
                         ______________________________

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

      Appellant Francisco F. Salinas appeals the judgment adjudicating him guilty of

aggravated assault with a deadly weapon. Through a single issue, he contends that the

trial court erred when it failed to conduct a separate punishment hearing pursuant to

article 42.12 §5(b) of the Code of Criminal Procedure. We affirm.

      To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or
motion. TEX. R. APP. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim.

App. 2009). Further, the trial court must have ruled on the request, objection, or motion,

either expressly or implicitly, or the complaining party must have objected to the trial

court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334,

341 (Tex. Crim. App. 2004). Furthermore, the Court of Criminal Appeals has held that a

separate punishment hearing that follows a revocation of deferred adjudication and an

adjudication of guilt is “a statutory right which can be waived.” Vidaurri v. State, 49

S.W.3d 880, 886 (Tex. Crim. App. 2001). Thus, to avoid forfeiture of the right to a

separate punishment hearing, a defendant must complain at trial or in a motion for new

trial. Id.; see Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Lincoln v.

State, 307 S.W.3d 921, 925 (Tex. App.–Dallas 2010, no pet.); Gober v. State, 917

S.W.2d 501, 502 (Tex. App.–Austin 1996, no pet.) (holding “that an accused who raises

no objection [to the lack of a separate hearing on punishment] at the [adjudication]

hearing or in a motion for new trial has failed to preserve error and may not raise his

complaint for the first time on appeal”).

       Here, appellant failed to object at the time of trial. Nor did he mention anything

about the lack of a separate punishment hearing in his motion for new trial. Therefore,

the complaint before us was not preserved for review, and we overrule the issue. See

Vidaurri, 49 S.W.3d at 886.

       Accordingly, we affirm the judgment of the trial court.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.

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