                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00130-CR
                                NO. 02-16-00131-CR


JASON J. ROSS                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
              TRIAL COURT NOS. 1444232R, 1444581R

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                           MEMORANDUM OPINION1

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      Pursuant to Appellant Jason J. Ross’s pleas of guilty to two counts of

burglary charged in separate indictments and his pleas of true to the habitual

offender allegations, the trial court convicted him of two counts of burglary and

sentenced him to thirty-eight years’ confinement on each count, with the

sentences running concurrently. In two issues, Appellant contends that the trial

      1
          See Tex. R. App. P. 47.4.
court erred by permitting the State to impeach his witness with details of

Appellant’s 2000 conviction for unlawful restraint and by failing to sua sponte

withdraw his guilty pleas “when it became apparent that he was incapable of

forming the specific intent to commit the offense[s] charged.” Because Appellant

forfeited his complaints, we affirm the trial court’s judgments.

Facts

        In each case, Appellant pled guilty to Count Two of the indictment, which

alleged that he committed burglary in one of three ways:               intentionally or

knowingly, without the complainant’s consent, (1) entering a habitation with intent

to commit assault; (2) entering a habitation and attempting to commit assault; or

(3) entering a habitation and committing assault.2

        The punishment evidence showed that on a single day, Appellant entered

two houses in the same neighborhood and assaulted three women (Complainant

One, Friend, and Complainant Two). Complainant One testified that a man she

did not know, Appellant, appeared outside her home at the same time as Friend.

Complainant One testified that he seemed “very happy,” “just real jovial,” and

“very, very upbeat.” She also testified that “he could have been high, [she] didn’t

know.”        Friend described his demeanor outside similarly as “jovial, friendly.”

Complainant One testified that he entered her home without her consent,

slammed the door on Friend, and locked it, leaving Friend outside. Complainant


        2
            See Tex. Penal Code Ann. § 30.02(a)(1), (3), (b)(1), (c)(2) (West 2011).


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One then testified that Appellant kissed her, French-kissed her, slobbered on her,

and bent her backwards over a table, pressing his body on top of hers. She bit

him, holding “on as hard as [she] could.” Meanwhile, Friend managed to kick the

door open and pulled and shoved Appellant off Complainant One. Appellant

grabbed Friend as he was falling to the floor, and they struggled. He tried to kiss

her but was not successful.      She forced him off her with her legs, he fell

backward, and he jumped up and ran out the door.

      Complainant Two testified that she went out her front door, and a stranger

with “blood on his mouth” who “looked lost” walked towards her, telling her that

someone was trying to kill him. He grabbed her arms, pinned her down on the

ground, touched her breasts, tried to kiss her, and took her shorts off. She

escaped and ran into her house, but he followed her. They wrestled more inside,

but then he saw a bottle of Gatorade on her bar. She told him to go get it. When

he walked toward the bottle, she ran out the front door, grabbed her shorts, and

put them on as she ran. She met a police car in the street, and the police found

Appellant in her house. Complainant Two testified that Appellant might have

been high or “crazy.”

      Appellant’s Aunt Doris testified that she did not believe that he was in his

right mind when he committed these crimes because of drugs. Similarly, his

Aunt Sandra testified that because of “his demeanor at that time, . . . he probably

was on—had some stuff in him” and that embalming fluid, also called “wet,” is

what she had heard he was using at the time of the offenses. She testified that


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she believed that he was on “some kind of drug” at the time of the offenses

“because he ain’t that type of person to hurt nobody.”

      Appellant’s mother also testified that “he’s not that type of person,” “he

wasn’t in his right mind,” “[he] never would have [done something] like that if he

was in his right mind,” and “he had to be on something that disfigured his mind.

He had to because he doesn’t do things like that.” She further testified that she

had told the investigating officer that Appellant

      is a good kid, and he must have been on wet [at the time of the
      offenses]. That’s a drug that . . . takes away people’s memory, and
      they do stuff that they are unaware of. So he had to be on
      something like that, because some drugs you can take and you
      know what you’re doing, but when you take wet, that wet freezes
      your mind and you don’t know nothing that happens during that time
      until you’ve come down off of it.

      She also said that she had seen him before the offenses at home and that

even though he had spoken to her, he had “looked a little strange.”          She

additionally testified that she knew Appellant did not “even remember doing it”

and that “[i]t was a random act because he was loaded, because he was high.

That’s the only reason.” She further testified that most people who are on drugs

and who commit crimes have mental health problems and that he has mental

health problems.

      On cross-examination by the prosecutor, the following transpired,

      Q.     You stated that [Appellant] must have been on drugs because
             he doesn’t do things like this; is that correct?

      A.     That’s correct.



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Q.      Are you aware of the sexual assault charge that [Appellant]
        had from 1997?

A.      No. I can’t remember, no. I’m not aware of a sexual assault
        charge.

Q.      Are you aware that he was accused of penetrating the female
        sexual organ of . . . a child younger than 17 years of age, who
        was not [his] spouse . . . , by inserting his penis into her
        female sexual organ?

A.      No. I don’t know that case. That’s when he was really young
        you talking about?

Q.      Well, in 1997.

A.      ‘97, 2007 . . . . No. I remember that they had a case—I
        remember that they had a case, but that girl’s name—I don’t
        know the people’s name, but I know—that may not be the
        same case. A girl was his girlfriend and that’s all I know about
        a case like that, and that case right there was dropped.

Q.      He pled to unlawful restraint and received six months in jail.

A.      Unlawful restraint. Oh, okay. That case, I believe that was his
        girlfriend, and I think that the girlfriend said that [Appellant]
        didn’t do nothing, but since everybody does, I mean—

Q.      Okay.

A.      That’s all.

.....

Q.      So you were not aware that he is accused of sexually
        assaulting a girl under the age of 17 . . . with two other men,
        locking her in a house and not allowing her to leave? You’re
        not aware of that?

A.      I’m aware that he was with his girlfriend.       That’s what I’m
        aware. That’s all I know.

Q.      So you think the girl in this case was his girlfriend?

A.      Yes.



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Impeachment Complaint Not Preserved

       Appellant contends that the trial court erred by allowing the State to

impeach his mother with “alleged details of [his] 2000 conviction for unlawful

restraint.”    But Appellant did not raise that complaint in the trial court.   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.3 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.4 A reviewing court should not

address the merits of an issue that has not been preserved for appeal.5

       Because he did not raise his complaint in the trial court, Appellant has

forfeited this issue. We therefore overrule Appellant’s first issue.

Complaint of No Withdrawal of Guilty Plea Forfeited

       In his second issue, Appellant complains that the trial court erred by not

sua sponte withdrawing his guilty plea in each case when “it became apparent

that he [could not form] the specific intent to commit” the assault-based

       3
      Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex.
Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016); Sanchez v. State,
418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet. ref’d).
       4
       Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 263 (Tex.
Crim. App. 2013).
       5
           Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).


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burglaries.

      A trial court has no duty to sua sponte withdraw a defendant’s guilty plea

absent a timely request to do so, even if evidence is presented that reasonably

and fairly raises an issue as to his guilt.6 If the defendant fails to timely request

that the trial court withdraw his plea, he forfeits his right to complain on appeal

that the trial court should have done it for him.7 Appellant did not raise this

complaint in the trial court, nor did he ask to withdraw his plea in the trial court.

He has therefore forfeited this issue. We overrule Appellant’s second issue.

Conclusion

      Having overruled Appellant’s two issues, we affirm the trial court’s

judgments.




                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

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

DELIVERED: August 26, 2016

      6
          Mendez v. State, 138 S.W.3d 334, 345, 350 (Tex. Crim. App. 2004).
      7
       Id.; Martinez v. State, No. 02-04-00019-CR, 2004 WL 1798091, at *2
(Tex. App.—Fort Worth Aug. 12, 2004, no pet.) (mem. op., not designated for
publication).


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