                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00304-CR


DWAYNE HOLMES                                                       APPELLANT

                                          V.

THE STATE OF TEXAS                                                        STATE


                                       ----------

      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                       ----------

                                      OPINION

                                       ----------

                                 I. INTRODUCTION

      Appellant Dwayne Holmes appeals his conviction for unauthorized use of a

motor vehicle. In his sole point, Holmes argues that the trial court violated his

due process and due course of law rights by enhancing his sentence from a state

jail felony to a third degree felony by way of two non-sequential prior state jail

felony convictions. We will affirm.
                                 II. BACKGROUND

      Police arrested Holmes after he was discovered operating a vehicle being

used as a “bait car” by members of an auto theft task force.          Holmes was

charged with theft of an automobile and with unauthorized use of a motor vehicle.

The State’s indictment also contained an enhancement notice based on two prior

theft convictions.

      At trial, the jury was unable to reach a verdict on Holmes’s theft charge but

unanimously convicted him of unauthorized use of a motor vehicle. During the

punishment phase, Holmes pleaded true to the enhancement allegations and

made no objections. His conviction was enhanced from a state jail felony to a

third degree felony, and the jury sentenced him to six years’ confinement.

                           III. PRESERVATION OF ERROR

      In his sole point, Holmes argues that the trial court erred by allowing his

sentence to be enhanced under former penal code section 12.42(a)(1), which

enhanced a state jail felony to a third degree felony if the defendant had

“previously been finally convicted of two state jail felonies.” 1 See Act of May 28,

1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2735 (recodified

2011) (current version at Tex. Penal Code Ann. § 12.425(a) (West Supp. 2012)).

Holmes supports this contention by pointing out that the two prior theft

      1
       Former section 12.42(a)(1) applies to this case because it was in effect on
the date of the offense. See Morris v. State, No. 11-10-00249-CR, 2012 WL
424923, at *4 n.3 (Tex. App.—Eastland Feb. 9, 2012, pet. ref’d) (mem. op., not
designated for publication).


                                         2
convictions used to enhance his conviction to a third degree felony were entered

on the same day, and therefore one was not subsequent to the other. Although

Holmes admits that the enhancement statute does not contain a requirement that

one of the prior convictions be subsequent to the other, he argues that the lack of

such a requirement allows the State to prosecute him for a third degree felony

based on “extremely minor crimes” without the added protection of the

convictions being sequential, thereby violating his right to due process under the

federal constitution and due course of law under the state constitution.

      We must first determine whether Holmes preserved his complaint for

appellate review. See Tex. R. App. P. 33.1(a)(1). The court of criminal appeals

has held that allegations of due process violations are subject to the requirement

of preservation by an objection or motion filed with the trial court. See Anderson

v. State, 301 S.W.3d 276, 279–80 (Tex. Crim. App. 2009). Likewise, a challenge

to the constitutionality of a statute is a forfeitable right and must be preserved in

the trial court during or after trial. See Ibenyenwa v. State, 367 S.W.3d 420, 422

(Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g). Here, Holmes lodged no

objection to the court’s charge or sentence during the punishment phase of the

trial, nor did he raise this argument in a motion for new trial. Thus, he asserts his

due process challenge to the enhancement statute for the first time on appeal.

      Holmes cites Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006), in

support of his argument that he may raise this issue on appeal despite not having

objected at trial. But Rich dealt with an appellant’s ability to claim for the first


                                         3
time on a writ of habeas corpus that his sentence was illegal based on an

improper enhancement. 194 S.W.3d at 510. By contrast, this case does not

concern a writ of habeas corpus, and Holmes has not argued that his sentence

was illegal; Holmes is challenging the constitutionality of a statute on direct

appeal. Thus, Rich is inapposite.

      We hold that Holmes forfeited this argument for appellate review. See

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that a

defendant may not raise a facial challenge to the constitutionality of a statute for

the first time on appeal); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.

1995) (holding that the constitutionality of a statute as applied to the defendant

must be raised in trial court to preserve error); see also Lacy v. State, Nos. 07-

10-00408-CR, 07-10-00409-CR, 07-10-00410-CR, 2011 WL 3240817, at *1 (Tex.

App.—Amarillo July 29, 2011, pet. ref’d) (mem. op., not designated for

publication) (holding due process challenge to punishment enhancement was not

preserved for appellate review because appellant lodged no objections during

sentencing). Accordingly, we overrule Holmes’s sole point.




                                         4
                                IV. CONCLUSION

      Having overruled Holmes’s sole point, we affirm the trial court’s judgment.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DAUPHINOT, J., filed a concurring opinion.

PUBLISH

DELIVERED: August 30, 2012




                                        5
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00304-CR


DWAYNE HOLMES                                                           APPELLANT

                                         V.

THE STATE OF TEXAS                                                            STATE


                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                      ----------

                          CONCURRING OPINION

                                      ----------

      I believe that Appellant’s complaint, raised for the first time on appeal, is an

as-applied challenge to former section 12.42(a)(1) of the penal code. I therefore

agree that he forfeited his complaint by failing to raise it in the trial court and

would affirm the trial court’s judgment. But I cannot join the majority’s journey

beyond this holding. For the reasons eloquently expressed by Judge Cochran in
her concurring opinion in Karenev,1 which I have adopted in a prior concurring

and dissenting opinion,2 I therefore respectfully concur.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: August 30, 2012




      1
      Karenev v. State, 281 S.W.3d 428, 436–40 (Tex. Crim. App. 2009)
(Cochran, J., concurring).
      2
       See Ibenyenwa v. State, 367 S.W.3d 420, 426–29 (Tex. App.—Fort Worth
2012, pet. ref’d) (op. on reh’g) (Dauphinot, J., concurring and dissenting).


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