                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-228-CR

DELORES RAMON VELASQUEZ                                           APPELLANT
A/K/A RAMON VELASQUEZ

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellant Delores Ramon Velasquez a/k/a Ramon Velasquez pleaded guilty

to burglary of a habitation with intent to commit a felony, and the trial court

sentenced him to fifty years’ confinement. In one point, Velasquez argues that

the trial court improperly considered his immigration status and the future

danger that he might pose to women in Mexico when it assessed his sentence

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          … See Tex. R. App. P. 47.4.
and, as a result, violated the Supremacy Clause of the United States

Constitution and the separation of powers doctrine under the Texas

constitution. We affirm.

                   II. Factual and Procedural Background

      On May 1, 2007, Velasquez, intoxicated and under the influence of

alcohol and cocaine, forced his way into Emma Velasquez’s home and stabbed

her multiple times with a knife.2 Emma sustained numerous puncture wounds

to her left arm, upper left side, left chest, and left abdomen.   The police

arrested Velasquez at the scene, and the State charged him with burglary of a

habitation with intent to commit a felony.

      On February 11, 2008, Velasquez entered an open plea of guilty. The

trial court accepted his plea but withheld sentencing and ordered that a pre-

sentence investigation (PSI) be conducted. On May 15, 2008, the Tarrant

County Community Supervision and Corrections Department completed the PSI

and provided the trial court with a report.   The report contained a detailed

description of the assault and documented Velasquez’s history of controlled

substance and alcohol abuse and his need for anger management counseling.

The report also included Velasquez’s immigration status.     Specifically, the



      2
      … Velasquez and Emma began having a “physical relationship” after her
husband—Velasquez’s brother—went to prison.

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report stated that Velasquez, a Mexican citizen, is an illegal alien due to an

expired work visa.

      During the sentencing hearing, the trial court had before it photos of

Emma’s injuries, the 911 tapes, and the PSI report. At the close of arguments,

and after a detailed discussion by the trial court as to its reasoning, the trial

court sentenced Velasquez to fifty years’ confinement. This appeal followed.

                                III. Discussion

      In his sole point, Velasquez argues that the trial court violated the

Supremacy Clause and the separation of powers doctrine when assessing his

sentence by improperly considering Velasquez’s immigration status and the

future danger that he might pose to women in Mexico. Specifically, Velasquez

directs our attention to the trial court’s following comments:

      He’s [referring to defense counsel] concerned about the punishment
      you will receive as a matter of federal law and [the] reality that
      whenever you’re released from prison that you’ll be deported
      because of the felony conviction, because according to the PSI any
      legal paperwork you had has expired, and the likelihood of someone
      convicted of burglary with an assault with a knife of getting legal
      papers, your lawyer is very smart and knows is very slim, even if
      immigration laws are reformed or liberalized.

      Unlike many young people who my heart breaks that come here
      when they’re four and no one bothers to do the paperwork right,
      I see them get deported and they don’t even speak English—I
      mean—they only speak English. I speak more Spanish than they
      do. And you at least are fluent and from that aspect would not be



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      a handicap even if you don’t have close associations due to your
      lengthy residence in the United States.

      And that is proper to argue as a de facto punishment that will
      happen, but for the same reason that your rights were protected,
      the PSI was thorough. If you wanted a trial, it would have been a
      fair trial regardless of your nationality or place of birth or citizenship
      status because that’s the way things happen in a free country. I’m
      not taking away points for you because you weren’t born in the
      United States for five generations, so I’m not going to give you
      points because of this collateral punishment, but I will recognize it’s
      a reality.

      But having said that, is it not proper to consider the safety of the
      women in Mexico if you were deported? Is it not proper to
      consider that if someone can sit and torture and stab someone with
      a running phone call and screaming and a crying child for four or
      five minutes and not stop when they’re begged to, that the next
      time they feel betrayed are poked or punched or prodded that that
      woman lives in some rural area of Durango, there’s not a 9-1-1 call
      to make to rush her to the hospital and save her life. She might
      bleed to death because she might be two hours away from the
      nearest hospital, with the existing transportation.

      In response, the State argues that Velasquez did not object to the trial

court’s comments regarding his immigration status and the safety of Mexican

women and therefore has forfeited this issue on appeal. We agree.

A. Preservation of Error

      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); Mosley v. State, 983


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S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). 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).

      The fact that Velasquez’s argument rests upon constitutional grounds

does not excuse him of the necessity of preserving error for appellate review.

See Stewart v. LaGrand, 526 U.S. 115, 119, 119 S. Ct. 1018, 1020 (1999)

(holding appellant waived constitutional complaint); Rhoades v. State, 934

S.W.2d 113, 120 (Tex. Crim. App. 1996) (same); Curry v. State, 910 S.W.2d

490, 496 n. 2 (Tex. Crim. App. 1995) (stating that constitutional errors may

be waived).    Therefore, because there is nothing in the appellate record

indicating that Velasquez objected to the trial court’s comments about his

immigration status or the safety of women in Mexico, or even to the sentence

itself, we hold that Velasquez has failed to preserve any error for our review.

See Tex. R. App. P. 33.1(a)(1).

      Furthermore, even assuming Velasquez preserved this issue for appeal,

the State argues that the doctrine of invited error estops Velasquez from

asserting it on appeal. We agree.




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B. Invited Error

      The doctrine of “invited error,” as distinguished from a waiver of error,

is a type of estoppel. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1102 (2000). This doctrine estops a party from

making an appellate error of an action that it induced. Id. As the Texas Court

of Criminal Appeals has explained,

      Waiver might usefully be distinguished from what is sometimes
      called “invited error.” If a party affirmatively seeks action by the
      trial court, that party cannot later contend that the action was
      error. This is not really a waiver of error previously committed.
      Rather, it is part of the definition of what can constitute error, and
      quite reasonably defines error of which a party may complain as
      excluding those actions of the trial court actually sought by the
      party in that tribunal.

Id.

      The State points out that because Velasquez requested that the trial court

take into consideration his likely deportation, he cannot now object to the

consequences of that request. Specifically, the State directs our attention to

the following comments made by Velasquez’s counsel during closing

arguments:

      He cannot apologize or express his being sorry enough. He would
      like the opportunity to do it to the injured party, although I’ve
      explained to him that it’s probably not likely to happen. But, you
      know, he has expressed that through the [PSI report] and through
      family members. He doesn’t know how—he wishes he could go
      back and undo what’s been done. It’s obviously impossible for him


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      to do, Your Honor. And obviously, we’re lucky. . . . It could have
      been a significantly worse outcome. Both parties will move on
      with their lives. Obviously my client will have to deal with
      whatever sentence is imposed by the Court.

      After that, as you know, as the Court knows, he will be formally
      deported and he will have to begin, if he’s given a chance at a new
      life or a different chapter in his life not in this country, not with his
      family and not in a place—and in a place that he hasn’t probably
      seen since he was 12 or 13 years old, Your Honor.

      We would request that you take               all   those   matters   into
      consideration. [Emphasis added.]

      The emphasized portions of the excerpted comments above make clear

that Velasquez explicitly requested that the trial court consider his deportation

when assessing his sentence. Therefore, because Velasquez actually requested

that the trial court take into consideration his deportation, we hold that the

doctrine of invited error estops him from now complaining about the trial court’s

actions, even if those actions resulted in constitutional error. See Prystash, 3

S.W.3d at 531; Druery v. State, 225 S.W.3d 491, 505–06 (Tex. Crim. App.),

cert. denied, 128 S. Ct. 627 (2007); Norton v. State, 116 Tex. Crim. 48, 50,

31 S.W.2d 1087, 1088 (1930) (noting that “[a] litigant on appeal or writ of

error may not seek a reversal for error which he himself has committed or

invited, even though the error is fundamental”); Franks v. State, 90 S.W.3d

771, 781 (Tex. App.—Fort Worth 2002, no pet.). Accordingly, we overrule

Velasquez’s sole point.


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                            IV. Conclusion

     Having overruled Velasquez’s sole point, we affirm the trial court’s

judgment.




                                       PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2009




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