Affirmed and Memorandum Opinion filed January 27, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00255-CR

_______________

JOSE GONZALEZ GUERRA, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________

On Appeal from the 253rd District Court

Chambers County, Texas

Trial Court Cause No. 11938

___________________________________________________

M E M O R A N D U M   O P I N I O N

            Jose Gonzalez Guerra appeals a conviction for indecency with a child^[1] on the grounds that: (1) the evidence was insufficient to prove the child was not his spouse; and (2) the trial court erred in not conducting a separate punishment hearing.  We affirm.

            Appellant’s first issue argues that the evidence was insufficient to prove that the child was not his spouse.  However, a defendant, such as appellant, who is placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when the deferred adjudication community supervision is first imposed.  Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001).  In this case, because appellant failed to challenge the sufficiency of the evidence in an appeal from his deferred adjudication, we are without jurisdiction to address it in this proceeding.  Accordingly, appellant’s first issue is dismissed.

            Appellant’s second issue argues that the trial court erred in failing to conduct a separate punishment hearing.  See Tex. Code Crim. Proc. arts. 37.07 § 3(a)(1), 42.12 § 5(b) (Vernon. Supp. 2004); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992).  However, the right to such a hearing is statutory and may be waived by failing to raise it in the trial court by request, objection, or motion for new trial.  Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001).  In this case, because appellant did not so apprise the trial court of any desire to present punishment evidence, this issue presents nothing for our review.  Accordingly, appellant’s second issue is overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed January 27, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).