                          NUMBER 13-15-00420-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

JIMMY JOHNSON,                                                      Appellant,


                                        v.

THE STATE OF TEXAS,                                                 Appellee.


                On appeal from the 347th District Court of
                        Nueces County, Texas.


                       MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
             Memorandum Opinion by Justice Longoria
      Appellant Jimmy Johnson challenges his conviction for felony driving while

intoxicated (“DWI”) by two issues. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)

(West, Westlaw through 2015 R.S.). We affirm.
                                     I. BACKGROUND

      The State alleged in the indictment that appellant operated a motor vehicle while

intoxicated in a public place in Nueces County on February 26, 2015. The State further

alleged that appellant had previously been convicted of two offenses “relating to the

operating of a motor vehicle while intoxicated.” See id. § 49.09(b)(2) (providing for the

third-degree felony offense of DWI if it is shown during trial that the defendant had been

twice convicted of an offense relating to operating a motor vehicle while intoxicated). The

indictment also alleged that appellant was a habitual offender because he had previously

been convicted of two felonies, and the second conviction occurred after the first became

final. See id. § 12.42(d) (providing for enhanced punishments for habitual offenders).

      The jury returned a verdict of guilty, and the trial proceeded to the punishment

phase.   The State proffered penitentiary packets for the offenses alleged in the

enhancement allegations and put on testimony to link appellant to those convictions. The

judge admitted the penitentiary packets into evidence. The jury found both enhancement

allegations to be true and assessed a sentence of seventy years’ imprisonment in the

Institutional Division of the Texas Department of Criminal Justice. This appeal followed.

                                      II. DISCUSSION

      Appellant argues in his first issue that the State violated section 49.09(g) of the

penal code by using his 1994 misdemeanor conviction for DWI (“1994 Conviction”) in this

case as both a predicate offense and an enhancement allegation. See TEX. PENAL CODE

ANN. § 49.09(g) (West, Westlaw through 2015 R.S.). Appellant argues in his second

issue that the length of his sentence violates the constitutional prohibition on cruel and

unusual punishment. See U.S. CONST. amend. VIII.



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   A. Improper Enhancement

       Appellant asserts in his first issue that the State violated section 49.09(g) of the

Texas Penal Code by using his 1994 misdemeanor conviction as both a predicate offense

and as an enhancement allegation. Section 49.09(g) of the Texas Penal Code provides

that “[a] conviction may be used for purposes of enhancement under this section or

enhancement under Subchapter D, Chapter 12, but not under both this section and

Subchapter D.” TEX. PENAL CODE ANN. § 49.09(g). The 1994 Conviction is not one of the

habitual-offender allegations in the indictment in this case, but the indictment does allege

appellant’s 2008 conviction for felony DWI (“2008 Conviction”). 1 Appellant argues that

the State is essentially using the 1994 conviction as an enhancement allegation here

because the 1994 conviction was a predicate offense for the 2008 Conviction. The State

responds that appellant waived error by failing to raise this issue in the trial court. In the

alternative, the State argues that the sentence did not violate section 49.09(g).

       We agree with the State that appellant did not preserve this issue. To preserve

error for appellate review, a party must make a specific and timely complaint to the trial

court and either obtain a ruling on it or object to the trial court’s failure to rule. TEX. R.

APP. P. 33.1(a). Generally, unpreserved error may not be raised for the first time on

appeal. Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014); Moore

v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012). Appellant’s argument during the

sentencing phase was that the State had not proven that appellant was the defendant

named in the penitentiary packets. Appellant never argued or objected that using the



        1 The indictment reflects that appellant’s 1994 misdemeanor conviction occurred on December 7,

1994 in Cause No. 416230 in the County Court at Law No. 7 of Travis County. The 2008 conviction for
felony DWI occurred on August 24, 2001 in Cause No. 01-CCR-1804-A in the County Court at Law No. 1
of Cameron County.
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2008 Conviction as an enhancement allegation violated section 49.09(g) of the Texas

Penal Code. We hold that appellant has forfeited this issue by not raising it in the trial

court. See TEX. R. APP. P. 33.1(a); Harris v. State, 204 S.W.3d 19, 27 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref'd) (holding that a defendant who raised a substantively

similar issue on appeal failed to preserve error by not raising it in the trial court); see also

Cody v. State, No. 05-06-01222-CR, 2007 WL 1064328, at *3 (Tex. App.—Dallas Apr.

11, 2007, pet. ref'd) (mem. op., not designated for publication) (same). We overrule

appellant’s first issue.

   B. Cruel and Unusual Punishment

       By his second issue, appellant argues that his sentence of seventy years’

imprisonment violates the constitutional prohibition against cruel and unusual

punishment. See U.S. CONST. amend. VIII. The State responds that appellant waived

this issue by failing to object.

       We agree with the State. Both the Texas Court of Criminal Appeals and this Court

have held that failure to lodge a specific objection to an allegedly disproportionate

sentence waives error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.

1996); Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet.

ref'd). Appellant admits that he did not object to the sentence, but argues that he had no

opportunity to do so.      However, there is no indication in the record that appellant

attempted to object, and he did not file a motion for new trial raising this issue. See Kim

v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd) (holding that a

claim of disproportionate punishment that “was not raised at the time it was imposed or

in a motion for new trial” was waived). We conclude that appellant waived any error in

his sentence by failing to object when he had the opportunity to do so. See Rhoades,
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934 S.W.2d at 120; Kim, 283 S.W.3d at 475; Trevino, 174 S.W.3d at 927–28. We overrule

appellant’s second issue.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.



                                                    Nora L. Longoria
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of July, 2016.




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