                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00292-CR


JAMES SAMPLE                                                          APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                                    OPINION

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                                   Introduction

      Appellant James Sample appeals his conviction and sentence for felony

driving while intoxicated (DWI). 1 In three issues, he contends that the trial court

erred by (1) denying his motion to suppress evidence, (2) denying his motion to

quash the indictment, and (3) imposing cruel and unusual punishment.            We

affirm.
      1
          See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West Supp. 2012).
                  Background Facts and Procedural History

      Lauren Staten and Amy Frazier had been to Denton for ice cream and on

their way home stopped at Hunter’s convenience store in Sanger. While they

were still in the car, Appellant pulled up in a white and yellow van that he parked

very close and perpendicular to them. He climbed out of the van, told the girls

that they did not belong there, and stumbled into the store. Amy thought he

looked “very drunk.” She stayed in the car while Lauren, after some hesitation,

entered the store to buy cigarettes.

      Inside, Appellant approached Lauren in a way she found offensive. Noting

that “his eyes weren’t right,” she guessed he was “on a good amount of drugs.”

When she rebuffed his advances, he pulled up his shirt, called her names, and

made racial remarks. Watching from the car in the parking lot, it appeared to

Amy that Appellant was yelling at Lauren and that her friend was getting upset.

      Lauren left the store without making a purchase. Appellant continued to

harass her as he followed her into the parking lot. Finally, after Lauren warned

him that she was calling the police, he climbed into the van and left.

      The girls called 911. Officers arrived and were taking the girls’ statements

in the parking lot when the girls exclaimed that Appellant’s van was passing by.

Officer Stoney Ward promptly pulled the van over.

      Officer Ward recognized Appellant from previous encounters and could tell

that he had been drinking. Appellant smelled strongly of alcohol, his eyes were

red, his speech slurred, and his mannerisms lethargic. The officer observed an


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open beer bottle in the van as well as spilled liquid on the floorboard that smelled

of alcohol.

      Officer Ward administered field-sobriety tests, concluded that Appellant

was intoxicated, and arrested him for DWI.

      Checking Appellant’s criminal history revealed two prior DWI convictions,

so Officer Ward took Appellant to Denton Regional Hospital for a mandatory

blood draw.

      Appellant did not cooperate at the hospital––shouting obscenities to

hospital staff and officers––and he had to be forcibly restrained before the

phlebotomist could draw a blood specimen.          The specimen was sent to the

Department of Public Safety Crime Laboratory in Garland for analysis. Results

showed that the specimen had a blood-alcohol concentration of 0.19 grams of

alcohol per 100 milliliters of blood––almost two-and-a-half times the legal limit.

      The grand jury returned an indictment charging Appellant with felony DWI,

enhanced by two prior misdemeanor DWI convictions and two prior felonies––

retaliation and felony assault. 2 On the morning of the first day of trial, Appellant

moved to quash the indictment on the grounds that one of the jurisdictional DWIs

is void because Appellant pled guilty in that case without counsel and without

waving a jury trial.


      2
        When a defendant is convicted of a third-degree felony while having two
prior, sequential felony convictions, he faces a term of “life, or for any term of not
more than 99 years or less than 25 years.” Id. § 12.42(d) (West Supp. 2012).


                                          3
       At a hearing on the motion to quash, Appellant testified at first that he did

not remember whether he had refused court-appointed counsel. But he later

admitted that he had refused counsel so he could represent himself. He also

testified that he had filled out paper work indicating that he understood the

dangers and disadvantages of representing himself but that he had chosen to do

so regardless. He further testified that he did not really remember signing any

documents waiving a jury trial.

       When the State produced the judgment from Appellant’s prior conviction,

Appellant acknowledged that he was the named defendant.                 The State’s

fingerprint expert confirmed that the fingerprints on the face of the judgment

matched Appellant’s.    The judgment also indicates on its face that Appellant

“intelligently, knowingly, and voluntarily waived the right to counsel, and waived

the right to trial by jury.” The trial court denied the motion to quash, and the case

went to trial.

       At trial, after the State had concluded its case-in-chief on guilt-innocence

and rested, Appellant urged for the first time an oral motion to suppress all

evidence obtained after the stop, alleging that Officer Ward stopped him without

reasonable suspicion. The trial court summarily denied the motion to suppress.

       The defense rested without presenting evidence, the jury found Appellant

guilty, and Appellant pled “true” to the notice of habitual-felony-offender status in

the indictment.




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      Both sides offered evidence on punishment.              The State presented

Appellant’s criminal history, which was substantial. State’s Exhibits 10 through

33 included judgments of convictions spanning decades. In 1990, Appellant had

been convicted of resisting arrest; in 1991, of criminal trespass and DWI; in 1992,

assault and resisting arrest; in 1993, criminal trespass; in 1994, he was convicted

twice of violating protective orders, once for assault, and once for resisting arrest;

in 1996, he had four criminal trespass convictions and one assault; in 1997,

assault-family violence, two criminal-trespass convictions, and harassment; in

1998, he was sentenced to five years in prison for retaliation; in 2004, another six

years for assault-family violence; and in 2010, he picked up another conviction

for assault-bodily injury. After deliberating on the issue of punishment, the jury

assessed thirty-six years’ confinement, and the trial court sentenced Appellant

accordingly.

                               Motion to Suppress

      In his first issue, Appellant claims that the trial court erred by denying his

motion to suppress because Officer Ward lacked reasonable suspicion to justify

the stop.   The State replies that Appellant failed to preserve his complaint

because he first raised it after the State had presented all the evidence he later

sought to have suppressed––in fact, after the State had rested its case-in-chief at

guilt-innocence. We agree with the State.

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

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


                                          5
for the desired ruling if they are not apparent from the context of the request,

objection, or motion. 3 Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.). 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); Pena

v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court should

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

Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g);

Clay, 361 S.W.3d at 765.

      An objection must be made as soon as the basis for the objection

becomes apparent.     Tex. R. Evid. 103(a)(1); Pena, 353 S.W.3d at 807; see

Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing

policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873,

889 (Tex. Crim. App. 2002) (“We have consistently held that the failure to object

in a timely and specific manner during trial forfeits complaints about the

admissibility of evidence. This is true even though the error may concern a

constitutional right of the defendant.”(citations omitted)); Reyes v. State, 361

S.W.3d 222, 228–29 (Tex. App.––Fort Worth 2012, pet. ref’d).


      3
       A motion to suppress, written or oral, is nothing more than a specialized
objection to evidence. See Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim.
App. 1981) (op. on reh’g).


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      An exception to this requirement may occur when a trial judge instructs the

parties before trial to withhold their objections until after the evidence has been

presented. See Garza v. State, 126 S.W.3d 79, 84–85 (Tex. Crim. App. 2004)

(explaining that the holding “is not meant to apply in situations outside the special

circumstances of this case”). Under normal circumstances, however, objecting

after evidence is already admitted is untimely. See, e.g., Ratliff v. State, 320

S.W.3d 857, 861–62 (Tex. App.––Fort Worth 2010, pet. ref’d) (holding that

appellant’s failure to object at the time officer described evidence and explained

how he found it was untimely and did not preserve error); Tell v. State, 908

S.W.2d 535, 544 (Tex. App.—Fort Worth 1995, no pet.) (holding that defendant’s

objection to officer’s testimony after officer had already answered questions

about objected-to evidence was untimely and did not preserve error); Thomas v.

State, 884 S.W.2d 215, 216–17 (Tex. App.––El Paso 1994, pet. ref’d) (holding

that appellant’s objection to officers’ testimony after they had testified was

untimely and did not preserve error).

      There is nothing in the record to indicate that any exception applies.

Appellant did not file a pretrial motion to suppress and he did not object before or

during the state’s case-in-chief to the admissibility of any evidence officers

obtained after the stop, and the trial court did not instruct him to withhold his

objections until after the evidence came in. When Appellant finally did object, it

was through an oral motion to suppress after the State had rested its case-in-

chief. Appellant’s motion to suppress––made after the State had presented all its


                                         7
evidence on guilt-innocence and rested––was untimely, and therefore preserved

nothing for our review. See Tex. R. Evid. 103(a)(1); Pena, 353 S.W.3d at 807;

Ratliff, 320 S.W.3d at 861–62. Accordingly, we overrule Appellant’s first issue.

                                Motion to Quash

       In his second issue, Appellant contends that the trial court erred by

denying his motion to quash. The indictment alleged that Appellant had two prior

DWIs, which enhanced this third one to a felony. See Tex. Penal Code Ann. §

49.09(b)(2). Appellant moved to quash the indictment, alleging that one of the

priors is void because at the time he pled guilty in that case he had not waived

his rights to counsel or jury trial. The issue at the hearing on the motion to quash

was whether Appellant had waived his rights before he pled. After the hearing,

the trial court found that he had and it denied the motion. Appellant challenges

that ruling.

       The standard of review for assessing a trial court’s ruling on a motion to

quash turns on which judicial actor is best positioned to determine the issue in

controversy. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).

Questions of law––such as the sufficiency of an indictment or the constitutionality

of a statute––are reviewed de novo because neither the trial court nor the

reviewing court occupies an appreciably better position than the other to decide

the issue, whereas rulings that turn on evaluations of witness credibility and

demeanor are reviewed for an abuse of discretion because the appellate court––

deciding the issue from a cold record––is in an appreciably weaker position than


                                         8
the trial court. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004);

Guzman, 955 S.W.2d at 89; Ahmad v. State, 295 S.W.3d 731, 739 (Tex. App.––

Fort Worth 2009, pet. ref’d) (op. on reh’g); cf. Lawrence v. State, 240 S.W.3d

912, 915 (Tex. Crim. App. 2007) (applying de novo review to decide

constitutionality of statute challenged in motion to quash), cert. denied, 553 U.S.

1007 (2008).

      In this case, Appellant challenges neither the sufficiency of the indictment

nor the constitutionality of a statute. He contends, rather, that the trial court

made the wrong ruling after it weighed the evidence presented at the hearing on

his motion to quash. That evidence included Appellant’s testimony, the judgment

of the prior conviction, and the testimony of a fingerprint expert matching

Appellant’s fingerprints with those on the face of the judgment.

      When the State seeks to enhance the punishment range for a charged

offense and relies on a prior judgment in the indictment to do so, it “must prove

beyond a reasonable doubt that (1) a prior conviction exists, and (2) the

defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921

(Tex. Crim. App. 2007). The State may prove both of these elements by the

defendant’s admission or by “documentary proof (such as a judgment)” that

contains sufficient information to establish both elements. Id. at 921–22. Once

the State links the defendant to a prior judgment, the burden shifts to the

defendant to prove the judgment is void. Johnson v. State, 725 S.W.2d 245, 247

(Tex. Crim. App. 1987).


                                         9
      When a defendant collaterally attacks the validity of a prior conviction on

the basis that he was denied his right to counsel, he must prove that he did not

voluntarily, knowingly, and intelligently waive his right to counsel.     Garcia v.

State, 909 S.W.2d 563, 566 (Tex. App.––Corpus Christi 1995, pet ref’d) (citing

Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985)). Similarly,

when a defendant collaterally attacks a prior conviction on the grounds that it

does not show that he validly waived a jury trial, he has the burden to show that

the entire record is silent on waiver. West v. State, 720 S.W.2d 511, 519 (Tex.

Crim. App. 1986), cert. denied, 481 U.S. 1072 (1987); Tate v. State, 120 S.W.3d

886, 890 (Tex. App.––Fort Worth 2003, no pet.).

      In this case, the State presented the judgment from the prior conviction

and linked it to Appellant.   Appellant concedes that the burden at that point

shifted to him to prove that the judgment was not entitled to a presumption of

regularity. He argues, however, that his testimony at the hearing “established

that he neither waived his right to a jury trial nor his right to counsel.” We review

the trial court’s decision that Appellant waived his rights under the abuse of

discretion standard because the trial court’s decision is a mixed question of law

and fact that “turns” on the trial court’s evaluation of credibility and demeanor.

See Moff, 154 S.W.3d at 601; Guzman, 955 S.W.2d at 89. See also Loserth v.

State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998) (“We have suggested that a

question ‘turns’ on an evaluation of credibility and demeanor when the testimony

of one or more witnesses, if believed, is always enough to add up to what is


                                         10
needed to decide the substantive issue.”). In applying that standard of review,

we are to affirm the trial court’s ruling so long as it is within the zone of

reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1990) (op. on reh’g).

      First, we hold that the trial court acted within its discretion to determine that

Appellant did not prove that he did not voluntarily, knowingly, and intelligently

waive his right to counsel because after initially stating that he did not remember

waiving counsel, Appellant admitted that he did waive counsel in order to

represent himself. He further admitted during his testimony that he signed some

paperwork admonishing him of the dangers and disadvantages of self-

representation. See Faretta v. California, 422 U.S. 806, 834–36, 95 S. Ct. 2525,

2541 (1975); Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984).

Given Appellant’s testimony, we hold that it was within the zone of reasonable

disagreement for the trial court to determine that Appellant had not met his

burden of proving that he did not voluntarily, knowingly, and intelligently waive his

right to counsel. See Garcia, 909 S.W.2d at 566.

      Second, the absence of a written jury waiver in the court’s file does not

render a judgment void. Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim.

App. 1993); State v. Garcia, 905 S.W.2d 7, 9 (Tex. App.––San Antonio 1995, pet.

ref’d). We begin with a presumption of the regularity of trial court proceedings.

Kelley v. State, 676 S.W.2d 104, 108 (Tex. Crim. App. 1984); Egger v. State, 62

S.W.3d 221, 224 (Tex. App.––San Antonio 2001, no pet.). Absent an affirmative


                                         11
showing to the contrary, a recitation in the trial court’s judgment alone is sufficient

to show a valid jury waiver. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.

App. 1984) (op. on reh’g); Egger, 62 S.W.3d at 224. Here, the judgment recites

that Appellant “appeared Pro Se, and intelligently, knowingly, and voluntarily

waived the right to counsel, and waived the right to trial by jury, and,

thereafter . . . entered a plea of guilty. . . .”    Appellant offered very little, if

anything, to the contrary, merely testifying that he thought, but was not sure, that

the judge explained the waiver of a jury trial to him, but that he did not remember

signing a jury waiver. Under these circumstances, we hold that it was within the

zone of reasonable disagreement for the trial court to conclude that Appellant did

not meet his burden of showing that the prior judgment was not entitled to the

presumption of regularity. See West, 720 S.W.2d at 519; Tate, 120 S.W.3d at

890.

       Because we hold that the trial court acted within the bounds of its

discretion by denying Appellant’s motion to quash, we overrule Appellant’s

second issue.

                                    Punishment

       In his third issue, Appellant argues that his thirty-six year sentence for DWI

is cruel and unusual punishment.

       As stated above, ordinarily, to preserve an issue for appellate review, an

appellant must have first raised the issue in the trial court. Tex. R. App. P.

33.1(a); see also Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App.


                                          12
2006) (discussing Rule 33.1). A sentencing issue may be preserved by objecting

at the punishment hearing, or when the sentence is pronounced. See, e.g.,

Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim. App. 2002) (appellant failed to

preserve error as to restitution amount by failing to object at the punishment

hearing to amount of restitution sought by the prosecution); Russell v. State, 341

S.W.3d 526, 527–28 (Tex. App.––Fort Worth 2011, no pet.) (appellant failed to

preserve Eighth Amendment complaint when he did not object at sentencing). In

some instances, an appellant may preserve a sentencing issue by raising it in a

motion for new trial. See, e.g., Bitterman v. State, 180 S.W.3d 139, 142–43 (Tex.

Crim. App. 2005) (appellant raised issue of plea breach in motion for new trial).

The requirement that an objection be raised in the trial court assumes that the

appellant had the opportunity to raise it there. See Hardeman v. State, 1 S.W.3d

689, 690 (Tex. Crim. App. 1999) (appellant did not allege that he did not have an

opportunity to object when sentence was pronounced and so failed to preserve

error); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (permitting

appellant to raise his objection for the first time in a motion for new trial since

“appellant had no opportunity to object to the trial court’s action until after that

action was taken”). Thus, when an appellate court finds that error has not been

preserved, it will often recite the times at which the appellant had the opportunity

to object, but failed to do so.   See, e.g., Idowu, 73 S.W.3d at 920 (“Neither

appellant nor his counsel objected at the punishment hearing . . . .”).          An

appellant fails to preserve error by failing to object when he had the opportunity;


                                        13
conversely, if an appellant never had the opportunity to object, then he has not

forfeited error. See Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App.

2003) (appellant did not forfeit his objection since “the [trial] court modified the

terms of Rickels’s probation without a hearing, and Rickels had no opportunity to

object.”); Cobb v. State, 95 S.W.3d 664, 666 (Tex. App.––Houston [1st Dist.]

2002, no pet.) (appellant did not forfeit challenge to language in written judgment

“[b]ecause the judgment was not prepared until after the end of the hearing,

[therefore] appellant could not have complained at the hearing about any alleged

defect in the judgment.”).

      Here, although Appellant did address the trial court and expressed “shock”

at his “situation,” at no time did he raise a specific objection claiming that the

punishment the jury assessed violated constitutional protections against cruel

and unusual punishment.       Nor did Appellant make a specific objection or

complaint in a motion for new trial. See Kim v. State, 283 S.W.3d 473, 475 (Tex.

App.––Fort Worth 2009, pet. ref’d) (citing Tex. R. App. P. 33.1(a) and Rhoades v.

State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) and explaining that appellant

could have also preserved his punishment claim by making the complaint in a

motion for new trial).

      The court of criminal appeals has said that the requirement that an

objection be raised in the trial court assumes that the appellant had the

opportunity to raise it there. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App.

2013) (citing Hardeman, 1 S.W.3d at 690).          Here, the record shows that


                                        14
Appellant had the opportunity to raise his complaint that his punishment was

unconstitutional but failed to do so. Under these circumstances he has failed to

preserve his claim.

      Additionally, when a sentence is within the relevant statutory range of time,

that punishment is “generally not subject to challenge for excessiveness.” Means

v. State, 347 S.W.3d 873, 875 (Tex. App.—Fort Worth 2011, no pet.) (citing Kim,

283 S.W.3d at 475–76); accord Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.

Crim. App. 2006) (holding that “[s]ubject only to a very limited, ‘exceedingly rare,’

and somewhat amorphous Eighth Amendment gross-disproportionality review, a

punishment that falls within the legislatively prescribed range, and that is based

upon the sentencer’s informed normative judgment, is unassailable on appeal”).

      Appellant claims that his thirty-six year sentence is cruel and unusual

punishment considering the severity of his offense and that it violates both state

and federal constitutional prohibitions against cruel and unusual punishment.

Even if we were to reach the merits of Appellant’s complaint in the interests of

justice, we are not persuaded that his sentence is cruel and unusual. See Vrba

v. State, 69 S.W.3d 713, 716, 724–25 (Tex. App.––Waco 2002, no pet.) (holding

that a sixty-year sentence for a DWI conviction where the defendant had an

extensive criminal history was not grossly disproportionate and did not violate his

Eighth Amendment rights); see also Ewing v. California, 538 U.S. 11, 20–21, 123

S. Ct. 1179, 1185 (2003) (recognizing that the Eighth Amendment “contains a

‘narrow proportionality principle’ that ‘applies to noncapital sentences’” in


                                         15
“exceedingly rare” cases) (quoting Harmelin v. Michigan, 501 U.S. 957, 996–97,

111 S. Ct. 2680, 2702–03 (1991) (Kennedy, J., concurring in part and concurring

in judgment) and Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 1138

(1980)). Thirty-six years is well within the relevant statutory range of twenty-five

years to ninety-nine years or life for a third-degree felony DWI with two prior,

sequential felony convictions. Tex. Penal Code Ann. § 12.42(d).

      The State’s evidence at punishment included judgments of Appellant’s

prior convictions that spanned three decades. The record shows that in addition

to the two prior and the instant DWI convictions, between the years 1990 and

2011, Appellant was convicted multiple times for resisting arrest (three times),

criminal trespass (eight), assault (six), and violating protective orders (twice). In

addition, he had one conviction for harassment and received prison terms for

retaliation and assault-family violence.

      A repeat offender’s sentence is “based not merely on that person’s most

recent offense but also on the propensities he has demonstrated over a period of

time during which he has been convicted of and sentenced for other crimes.”

Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.––Houston [14th Dist.] 2000, pet.

ref’d) (quoting Rummel, 445 U.S. at 284, 100 S. Ct. at 1144). Therefore, even if

we assumed for the sake of argument that Appellant had preserved his

punishment claim, considering the present offense together with his criminal

history, we would hold that his thirty-six year sentence is not cruel and unusual




                                           16
punishment. See Rummel, 445 U.S. at 284–85, 100 S. Ct. at 1144–45; Hicks, 15

S.W.3d at 632–33. Accordingly, we overrule Appellant’s third issue.

                                  Conclusion

      Having overruled each of Appellant’s three issues, we affirm the trial

court’s judgment.




                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

PUBLISH

DELIVERED: June 13, 2013




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