Opinion issued November 14 , 2023

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 22
- 00310
- CR

——————————— ROSENDO JESUS RUVALCABA , Appella nt

V. THE STATE OF TEXAS , Appell e e

O n Appea l f

rom the 400th District Court Fort Bend Co u nty, Texas Trial Court Ca se No. 20
- DCR
- 092265

M EMORANDUM OPINION Rosendo Jesus Ruvalcaba appeals his conviction for indecen cy with a child by ex posure. After finding Ruvalcaba guilty, the ju ry asse ssed punis hment at five years in pri son. I n five issue s , Ruvalcaba argues that (1) the t r ial court abused its discretion in allowing a witness to improperly bolster the victim ’ s testimony;2

(2) the trial court abused its discretion in a dmitting hear say ; (3 ) t he tria l court erred in denying Ruvalcaba ’ s motion f o r d irected v e rd ict; (4) defense counsel ren d ered ineffective assistance by failing to preserve error ; and (5) t he t rial court erred in submitting punishment to the ju ry in the ab sence of a timely

- file d written elect i on. 1
W e affirm

. Background
Noemi 2 recal l ed a March 16, 2020 incident , when she was 12 years old, that
occurred at her Aunt Rosaelia ’ s house , invo lving her older cousin , Ruvalcaba

. Noemi testi fied that she was on the cou ch , Ruvalcaba wa s sitting at the coffee
table , Ruvalcaba ’ s daughter , Melani e , was standing in front of the coffee table , and
Ruvalcaba ’ s other daugh ter , Jayla , was next to N oemi on the cou ch. Ruvalcaba
had his hand in h is pants during this time.
N o e mi testi fied that after Ruvalcaba asked Jayla to charge h i s vape , Jayla
left th e living room

. Noemi then went to get her water from her aunt ’ s room , and
when she retur ned, she saw Ruvalcaba standing ne ar the co ffee table moving h is
hand up and down on hi s penis

. Ruvalcaba made no attempt to cover up, and
Noemi could see his p enis w h ile Ruvalcaba l ook ed at her and smiled

.
1 Ruvalcaba ’ s first two issues were raised in his original brief. Subsequently, Ruvalcaba ’ s appe llate counse l wa s ap pointed as an associate judge , and new appellate counsel was appoi nted. New appellate counsel filed a su pplemental brief , raising three additional issues

.
2 In the underlying proceedings and on appeal, the parties refer to t he victim by a ps e ud o nym , Noemi

. S ee T EX

. R. A PP . P. 9.10( a)(3).3

After the i ncident, Noemi went to Aunt Rosaelia ’ s room and texted her
sister , Heidy , t e lling h er what ha d happened and that she had to leave

. N oemi
testified that she also told Au nt Rosaelia , but she did not beli e ve her

. Ruvalcaba
entered the roo m and e xplained that h e was just “ scratching down there. ” Noemi eventually left the home , informed her older sister , Yuri , what had occurred , and they called the police.
Aunt Rosaelia testified t ha t , on March 16, Noemi appeared upset and crying

a nd said she wan ted to leave because Ruvalcaba had shown her his “ intimate
parts

. ” Although Noemi testi fied that her aunt did not believe her , Aunt Rosaelia
testified that she did believe her

. A fter t he j ury returned a g uilty v erdict , it assessed a puni shme nt of five

years in prison

. Ruvalcaba timely appealed.
Bols tering Tes timo ny I n his fir st issue , Ruvalcaba argues that Aunt Rosaelia impro p er l y bol st er ed
N oemi ’s testimony. Ruvalcaba relies on Rule 608 of the T e xas R ules of Evidence in suppor t

. 3 The State resp onds that Ruvalcaba ha s failed to preserve er ror
.

3 Rule 608 provides, “ A witness’s credibility may be attacked or supp orted by testimony a bout the witness’s reputation for havin g a characte r for truthfulness or unt ruthfulness, or by testim ony in the form of a n opinion a bo u t that charac ter. But evidence of truthful character is admissible only after the witness’s characte r for truthfulness h as been attacked. ” T EX

. R. E VID . 608(a)

.4

To pr eserve error on appeal, the complaining party mu s t make a timely, specific objection and obtain a ruling on the objection. T EX

. R. A PP

. P . 33.1(a); see Wils on v. St

ate , 71 S.W. 3d 346 , 349 (Tex. Crim. App. 2002 ).
Her e, the State asked Aunt Rosaeli a on direc t examination , “ did you believe
Noemi when she t o ld you what had happened? ” She answered, “ Yes, because she was a girl who wou ld never lie. ” Ruvalcaba mad e no obj ection to this testimony

. By failing to object, Ruvalcaba has waived t his compla int on appeal. See T EX

. R.
A PP . P. 33.1

. W e overrule Ruvalcaba ’s first issue

. H e arsay
In his second issue , Ruvalcaba argues that the trial court er red in a dmitt ing
Heid y ’ s t ext m essages because the messages were hearsay , whi ch imprope rly
bolstered Noemi ’ s testimony. The State responds that Heid y ’ s text responses were

n either hears ay , nor was Ruvalcaba harmed by their admission.
Standard of Review a nd Applicable Law
We revie w a trial court ’ s evidentiary ruling for abuse of d iscretion.
Hammons v. State , 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). As long as the
trial court ’ s ruling is within the zone of reasonable disagreement, we will not
intercede. Lopez v. Sta te , 86 S.W.3d 228, 230 (Tex. Crim. App. 2002).5

As a general rul e, an out

- of

- court statement offered for the purpose of proving the truth of the statement is inadmis sible hearsay. T EX

. R. E VID . 801(d),
802. A statement is not hearsay if it is not offered to prove the truth of the matter
asserted. See Guidry v. State , 9 S.W.3d 1 33, 152 (Tex. Crim. App. 1999). In limited circumstances, out

- of

- court unsworn statements can be admitted in court if they are offered to provide context for admissible statements b ecause they a re not
offered for the truth of the matter asserted

. Langham v. State , 305 S.W.3d 568,
580

– 81 (Tex. Crim. App. 2010). Analysis
At trial , Noem i testified that she started texting Heid y after the incident

. When the S t ate attempted to question N oemi about th e text exchange, Ruvalcaba objected , a nd the par ties appro ached the bench out of the hearing of the jury. At the bench conference, the following exchange occurred: [Defense] : Revisiting the text message issues, the two pages, I d on ’ t

have a problem

— I do n ’ t have an objection to this

— to [Noemi ’ s ] statements in the text messages, but any response to those text messages are hearsay and almost double hearsay.

. . . [Defense] : The statements by [Noemi ] as an excited utterance is

— I

acknowledge that that ’ s an exception to the hearsa y ru ling comin g in; but any responses to anybody else without them testifying, that ’ s

— that ’ s hearsay and double

— or it ’ s double hearsay

. At the minimum, it ’ s hearsay. So that if the statements o f [He idy] can be redacted and then just what this witness sta tement, I6 don ’ t have a problem wit h that. But any statements by any person who is not testifying and is just reacting to what someone else said, that ’ s not

— that doesn ’ t fall into the excep t ion of the hearsay rule

. More specifically, excited utteranc e. [ State ] : So [Heidy ’ s] responses are questions. They ’ re not

offered for their truth; they ’ re offered to provide context to [Noemi ’ s] responses to those questions. And

— [ Court ] : You ’ re off

e ring it to give context? [ St ate ] : Absolutely, Judge. [ Court ] : No , I ’ m goin g to let them in. [Defense] : Just note my objection. [ Court ] : Objection noted. Back before the jury, Noemi i dentif ied exhibit 7 , which consisted of two pages of text messages , and t he State asked for its adm ission. After Ruvalcaba

state d, “ Not e m y previous objection, ” th e trial court note d his objection and
admitted exhibit 7

. The trial court then per mitted the S t ate to pub lish the exhibit to the jury

. Once t he Sta te asked N oemi to re ad the text messages includ ed in exhibit 7,
the tri al court instructed the jury , “ The statements by Heidy are not being admitted
for the truth of w hat is said but simply to give some context; that is, a back and forth, okay. ” Ruvalcaba did not object to the instruction

. Noem i and t he S tate

t hen read the following text exchange:7

Noemi: Okay. Heidy: I’ll be hom e later.
Noemi: Ok the charger? Heidy: Drawer by my bed.
Noemi: HEIDY!! I need you to come home now. I need to talk

to you. Now. Heidy: Why? What happened. Jovani has the car.
Noe mi: Something I just need you to come plz. I don’t wanna be

here. No more. Heidy: Why? And Jovani has the car we don’t have a ride, what

happened [Noemi]? Hello. Umm?
Noemi: So I was sitting on the couch wit Jay lah and Me lanie an d

[ Ruvalcaba ] wa s there. He had his hand in his pants Okayy so then he told Jaylah to go put that thing from that vape thing up. And I went to go get my water from and then I was coming back and I see [ Ruvalcaba ] put his thing out and was me ssing wi t it lo oking at m e. But Melanie wasn’t looking he was turned around and I don’t wan na be here bc of what just happened. And the door of the room was open but [Aunt Rosaelia] was doin something and didn’t see. And I don’t know what to do? I don’t wa nt to b e here.
H eidy: Go to the room, stay in there I’ll be there!!!
Noemi: Okayyy I am. Heidy: Did you tell [Aunt Rosaelia]? Call [Aunt Rosaelia]

NOW. I MEAN TELL HER. I’M CALLING JOVANI RN.8

At trial, Ruvalcaba objected t o Hei dy ’ s text messages in exhibi t 7 globally without specifying which statements

. On appeal, Ruvalcaba does not take i ssue with any of Heid y ’ s specific text message s exce pt for stat ing , “ Heidy then directed Noemi to go to a room and stay there and to tell Rosael ia wh at happene d , ”

assert in g this was an out of court statement offered for the tru th of t he matter. 4 The State argued below that H eidy ’ s text messages were n ot offered for their truth but to provide context to Noemi ’ s responses. Ruvalcaba d id not dispute that
chara ct erizatio n at trial or on appeal. We cannot say that the trial court ’ s decision to admit Heidy ’ s text messages
was an abuse of discretion. After Ruvalcaba objected based on hearsay, the State
i nformed the trial court th at they were not offered for the tr u t h of t he matter, but to
show context for Noemi ’ s responses. See Guidry , 9 S.W.3d at 152 (recogn izing that “a statement which is not offered to prove the truth of the matter asserted, but is offered for some other reason, is not hearsay”)

. 5 Ruvalcaba n ei ther re spond ed to
the S t ate ’ s argument, nor did he object when the trial court instruct ed the jury that

4 Ruvalcaba appears to be referring to Heidy ’ s text messages that s tate, “ Go to the roo m, stay in the re I ’ ll be there !!!! ” a nd “ Did you tell [Aunt Rosaelia] ? C a ll [Aunt Rosaelia] NOW. ”

5 See Dinkins v. State , 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (explaining that “[a]n extrajudicial statement . . . which is offered for the pu rpose of showing what was said rather than for the truth of the matter stated therein d oes not constitute hearsay”).9

Heidy ’ s text messages were no t offered for the truth of the matter. 6 Accordingly,
we conclude that the trial court did not abuse its discretion in admi tting He idy’s

text messages
. 7
We o verrule Ruvalcaba ’s second issue

.

R e ading of the I n dictment
In his t hird issue , Ruvalcaba argues that the trial court erred in denying his
motion fo r directed verdict based on the State ’ s fa ilure to read the indictment
b ef ore it rested it s case
. The State res ponds tha t the trial court properly denied the
directed verdict because Ruvalcaba did not direct the trial court to th e correct
curative measures
. Standard of Review and Applicable Law
Code of Criminal Procedure ar ti cl e 36.01(a)(1) pr ovides as follows: (a) A jury being impaneled in any criminal action , except as provided by Subsection (b) of this article, the cause shall proceed in the f

ollowing order:
1. The indictment or i nformation shall be read to the jury b y th e attorney prose cuting.

6 “Limiting instructions ensure that the jury does not rely on admitted evidence for an impermissible purpo se.” Baker v. State , 177 S.W.3 d 113, 124 (Tex. App.

— Houston [ 1st Dist.] 2005, no pet.) (citing Lewis v. State , 815 S.W.2d 560, 566 (Tex. Crim. App. 1991)).

7 Ruvalcaba also argues that Heid y ’s text message s improperly bolstered Noemi’s testimony because they indicated that Heid y beli eved that Noemi was t elling t he truth. Because Ruvalcaba did no t raise this objection in th e trial court, th is contention is w aived on appeal. See T EX

. R. A PP . P. 33.1.10

T EX

. C ODE C RIM

. P ROC

. a rt. 36.01(a)(1). The reading of the c harging i nstrument is mandatory and serves the dual purposes of informing the accused o f the charges against him and informing the jury of the charges against the accu se d. Warren v. State , 693 S.W.2d 414, 415 (Tex. Crim. App. 1985); Lopez v. State , 452 S.W .3d 425, 428 (Tex. App.

— Houston [1st Dist.] 2014, pet. ref ’ d). “ Error which results fr o m not reading the
ind ictment . .

. and not entering a plea can be cured at tria l. ” W arren , 693 S.W. 2d
at 41 6. “The procedure to be followed has been long established: upon lea r ning of the error, the indictment is re ad to the jury, the accused enters a pl e a and the State
reint roduces the evidence; or the parties may stipulate to the ev ide nce.” I d

. A nalysis
After the State and Ruvalcaba rested and while discussing the jury ch a rge,
the State explained how it had previously asked the trial court to arrai gn Ruvalcaba , but it real ly m eant that they were requesting to read the indictment

. Th e Sta te requested permission from the trial court to reopen and read the
indictmen t, permit Ruvalcaba to ent er a plea, and then reoffer all the evidence
before clos ing the case. Ruvalcaba r esponded, “ I h ave to object , Judge. They underst and the

proce ss, t he procedure, what they have to follow. They failed to do

— do so, and11

I ’ m goi ng to object that they be allowed. And they also rested. So I ’ m going to object to them being allowe d t o reopen. ” The following exchange then occurr ed: [ Court ] : Well, I ’ m g oing to allow them to reopen and do that.

First of all, we always did the reading o f th e indictm ent when I was on the bench the whole time so

— but things have changed so muc h with all of the dram a of COVID and whatnot. I didn ’ t know. You know, o f cou rse, we had people go down and qualify the jury before we came down to start our presen tation, s o I mean, a lot of this is getting used to what ’ s happening now. But I think it ’ s appro priate to allow them to reopen for that purpo se, and I ’ m going to d o th at. [Defense] : Just so I can make the record clear that I ’ m object ing

that the Cou rt has a llowed them to reopen, that by failing to do so, that they did not meet their burden. By all owing them to reopen, it ’ s highly prejudi cial to my client

. So the record ’ s clear.

. . . [ Court ] : Was he not arraigned at any point i n time before the trial

started? I mean. .

. [Defense ] : We ’ ve always

— When I represent them, we ’ ve wai v ed arra ignment. [ Sta t e ] : Yes, he was. The Court arraig ned him prior to t rial an d

we requested that the Court arraign him and you did give him some admonishments and he did enter a plea and there ’ s no question about that. But this particular statute d oesn ’ t call it an ar raignm ent. It just specifically sa ys that we should read t he indictment. And so in order to comply with

—

. . . [ State ] :

— the specificity of th at statu te, he may have been

arraigned; but in order to meet the requirement that we12 re ad the indictment, w e just want to go ahead and do that for the record. [ Cour t ] : I ’ m going to allow you to do that because if he was

arraigned or wa ived arraignment, he had a right at that time to have it read to him by the Court and decided not to p ro bably because he was aware of

— probab ly had been handed a copy of the ind ictme nt and had gone over it with counsel; but I don ’ t know that. So I ’ m go ing to let you r eopen so you can do that. [ State ]: Thank you, Judge. And just

— And, briefly, if I may re spond to his argumen t or statement on the record that this was a failure by t he State to meet its burden, this is a

— a procedural issue. I believe t hat this

— satisfyi ng this requirement is sort of ministerial in nature, and it does not go to the subst an tive evidence or any of the elements that the State ha s had to prove. A nd t h en

— And so that ’ ll be the State ’ s response with regard to that issue.

. . . [Defense] : Just o ne l ast one. Since the State has rested and failed to

read the indictment, I wou ld ask for a direct ed verdict. [ Court ] : Directed verdi ct is denied.
After fu rther discussion , the trial court permitted the State to reop en and read

t he indictment , to which Ruvalcaba ple d not guilty. The following exc hange then
occurred: [ State ] : W e would simply reoffer the evidence as present ed; and

after tha t, we would rest

. [ Court ] : All right. [Defense] : After my p rior objections, I understand. And with them

resting, the defense rests.13

Here, th e record shows that at the beg inning of trial, the t rial court arraigned
Ruvalcaba both before an d after the jury was presen t a nd ask ed whethe r he
underst ood th at he ha d been charged with the offense of indecen c y with a child by exposure and that the punishment ran ge was two to ten years in pri son
. Ruvalcaba
answered a f

firmatively and p led not guilty. The trial began with the Stat e ’ s opening statement, Ruvalcaba ’ s opening statement , the presentation of evidence, and both sides resting

. The State never rea d the ind ictment to Ruvalcaba at the beginning of trial

. Once t he S t ate realized the error after it rested, but b efore cl osing arguments,
the S t ate asked to read the indictment. Although Ruvalcaba objected to the State ’ s

r eopening , the trial court overruled the objection and allow ed the S t a te to pa rtiall y cure the l ate

- reading of the indictment by reading the indict ment and obt ai ning
Ruvalcaba ’ s plea

. See Warren , 693 S.W

. 2d at 41 6. The State then reoffered the evidence previously admitted, without recal ling witnesses , and w it hout
Ruvalcaba ’ s stipul at ion to the evide nce. By not reintroducing evidence or get ting a

st ipulatio n of e vidence f

rom Ruvalcaba , procedural error occurred

. See Castillo v.
State , 530 S.W.2d 952, 954 (Tex. Crim. App

. 1976)

. The proce dural err or, however, ha s not been preserved b ecause at the time that the trial court permitted the State to re open and reo ffer t he evidence,
Ruvalcaba did not direct the trial court to the correct c urative m ea s u r e

— th e State14

reintroducing the evidence or Ruvalcaba sti pul ating to the evidence. See Do v

. S tate , 634 S.W.3 d 883, 892 (Tex. Cri m . App. 2021)

. In Do , t he Cour t of Cri m ina l Appeals explained ,

W hen the c harging instrumen t is read late . . . the er r or can be cure d by reading the charging instrument

. . . having the accused enter a plea to it, and having the State r eintroduce the evidence heard before the cha r g ing i nstrum ent was read (or the parties can stipulate to the evide nce). When the charging instrument is re ad late, a defendant forfeits error if he fails to raise an ob

jection that puts the t rial court on noti ce of the correct curative measures.
I d

. at 892.
Whi le Ruval caba objected to the State reopening the eviden ce 8 and moved
for a directed verdict , con tending that the State did not meet it s burden , 9 he did not apprise the trial court of the correct c ura tive measure for the procedural error and

m ade no o bjecti on to th e State reoffering the evidence. Accordingly, u nder th ese facts , the error has not bee n preserved. See id

. We overrule Ruvalcaba ’ s thir d issue

.

8 On appeal, Ruvalcaba doe s not ar gue that the trial court abused its discretion in permitting the State to reope n.

9 “ E r r or in connection w ith the State ’ s failure to timely join issue on an al leg ation in the char gi ng instrument is treated as trial error, not as an insufficien cy of the e vidence. ” Do v. State , 634 S .W.3d 883, 891 (Tex

. Cri m . App. 2021). Thus, th e trial co urt properly den ied Ruvalcaba ’ s request for a direct ed verdict because it was not the proper objection for a curable procedural error

.15 I neffective Assistance o f Counsel
I n his fourth issue , Ruvalcaba argues that i f he failed to preser ve his third
issue , h is defense c ounsel rendered ineffective assistance

. The State responds that
Ruvalcaba has not shown that counsel was ine ffective or that he w as prejudice d

. Standard of Review and Applicable Law
We evaluate claims of ineffective assistan ce of counsel under the sta ndard
set forth in Strickland v. Washington , 466 U.S. 668, 687 (1984). Under Strickland , a defendant must show that (1) counsel’s performance fell below an objective
stand ard of reaso nab leness and (2) but for counsel’s unprofess ional error, there i s a

rea sonable probability that the result of the proceedings would have been different.
Id . at 687

– 94; Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). “A
reasonable probability is a probability sufficient to undermine con fidenc e in the

outco me.” St rickland , 466 U.S. at 695. A defendant must establish both prongs by a preponderance of the evidence. Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Failur e to make a showing under either prong defeats an
ineffec tive

- a ssistance clai m. See Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Any c laim for ineffectiveness of counsel “ m ust be firmly founded in the record, and the record must affirma tively demon strate the alleged ineffectivenes s.”
Prine v. State , 537 S.W.3d 1 13, 117 (Tex. Crim. App. 2017) (cit ations omitted).16

“[I]f the record does not contain affirmative evidence of tria l counsel ’ s reasoning or strategy, we presume counsel ’ s performan ce was not d eficient.” Johnson v.
State , 624 S.W .3d 579, 586 (T ex. Crim. App. 2021). Analysis
Ruvalcaba cites no authority in support tha t failing to p r e se rv e er ror , let
alone cur able error, is ineffective assistance. See T EX

. R. A PP

. P. 38.1(i).
Ruvalcaba argue s , “ If defen s e counsel had [ required the State t o recall their
witnes s es and reintro duce th eir exhibits after the reading of the indictment],
defen se counsel would have preser ved reversible error. ” But Ruvalcaba ’ s unsupported statement does not show deficient perform ance . I f defense counsel
had follow ed the correct procedure , the erro r of not reading the indic t ment at the
be ginnin g of trial would have been cured. See Warren , 693 S.W.2d at 416 ( “ The procedure to be followed has been long established : upon lear ning of the error, the
indi ctment is read to the jury, the accused enter s a pl ea and the State reintroduce s the evidence; or the parties may stipulate to the evidence. ” )

. M oreover, o ther th a n stating , “ Defense counsel ’ s error harmed Appellant, ” Ruvalcaba also mak es no argument as to how he was prej udiced by his c ounsel ’ s fai lu re to preserve curable

error. See T EX

. R. A PP

. P. 38.1(i)

. Here, Ruvalcaba did not file a motion for new trial. Therefore , we have no record detailing counsel ’ s reasoning behin d his actions o r inactions. See Johnson ,17

624 S.W.3 d at 586. Becau se we have n ot hing before us from which to determine why counsel failed to preserve the issue by informing the trial court of the correct
pr ocedure after the late

- reading of the indictment , Ruvalcaba ’ s all egation of
ineffectiveness i s not f

irmly fou nded in the record, a nd the record does not affirmatively demon strate the alleged ineffectiveness. See Thompson , 9 S.W.3d at
813. Accordingly, we hold that Ruvalcaba has not sustained his burden o f proving
his i neffecti ve assistance claim by a pr eponderan ce of t he evidence.
We overrule Ruvalcaba ’ s fourth issue

.

Pu nishment Assessed by the Jury
In his fifth issue , Ruvalcaba contends that th e trial c ourt err ed in allowing the jury to assess punish ment in the absence of his timely

- filed written e le ct ion

. The St ate responds that the trial court did not err because Ruvalcaba did not object. Applicable Law
P unishment by jury is a stat u tory right. See Martin v. State , 753 S.W.2d 384,
389 ( Tex. Cri m . Ap p. 1988). Under Article 37.07, Section 2(b), of th e Texas Cod e

o f Criminal Procedure, a criminal defend ant has a statutory right to have the jury

assess p unishment if he “so elects in writing before the commencement of the voir
dire examinati on of the jur y panel.” T EX

. C ODE C RIM

. P ROC

. art. 37.07, § 2(b)

. O therwise, t he trial court ha s the responsibility to assess the punishment. S ee id

. A18

defendant, however, can waive statutory rights concerning the assessment of punishment. Dickson v. Stat e , 492 S.W.2d 267, 270 (Tex. Crim. App. 1973). Analysis
Ruval caba does not arg ue that he made any objection to the jury determining punishment, and our rev iew of the record reflects that he never objected at any
time to the assessment of punishm ent by the ju ry.
In D ickson , the court asked “[i] s there anything inhe rentl y detrime nta l in the jury assessing p unishment which appellant could not waive by his failure to object to such pr ocedure ? We thi nk not.” I d

. at 270. Noting that “a defendant can waive

stat utory r ight s with regar d to assessment of punishment,” the c o u rt concluded “[a]lthough the jury was not authorized to assess punishment under Article 37.07,
Sec. 2 (b) .

. . . , in the instant case, we conclude that in view of appellant ’ s failure to object to such pro cedure, no r eversible error is presented.” Id

. Bec au se Ruvalc aba made no objection to the jury assessing punishment, he
waived th is issue. See Reynolds v . State , No. 05

- 06

- 00328

- CR, 2007 WL 29728, at *2 (Tex. App.

— Dallas Jan. 5, 200 7, pet. ref ’ d ) (not designated for publication) (holdin g that despite no wri tten election, appellant did not preserve jury

punishment complaint because he fail ed to object )

. W e overrule Ruvalcaba ’ s fifth issue

.19 Conclusion
F or all of these reasons, w e therefore affirm the trial court ’ s judg ment in all things

.

Terr y A dam s Chief J ustice
Panel consists of Chief Justice Adams and Justices Hightower a nd Countiss.
Do not publish. See T EX

. R. A PP . P. 47.2 (b).