Affirmed and Memorandum Opinion filed February 12, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-11-00982-CR


                    JACOBY DARNELL HALL, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1318666


                      MEMORANDUM OPINION

      A jury convicted appellant Jacoby Darnell Hall of capital murder, and the
trial court assessed automatic punishment of life imprisonment without parole. See
Tex. Code Crim. Proc. Ann. art. 37.071 § 1 (Vernon Supp. 2011). We affirm.
                                 BACKGROUND

      The appellant has not challenged the sufficiency of the evidence supporting
his conviction; therefore, we recite only those facts necessary to the disposition of
this appeal.

      In August 2008, Varn Butler (a/k/a “Hop”) was paid approximately $1,800
for 1,500 Xanax pills. He took the money but never produced the pills. The
appellant was a part of a group that spent several days searching for Butler in an
attempt to retrieve the $1,800. The group tracked down people who knew Butler
and looked for him at several of his known hangouts.

      On August 16, 2008, the appellant and his cousin, Reginald Price, broke into
Marcus Smith’s house by kicking in the door. The appellant was carrying a
revolver, and Price was carrying a semiautomatic pistol. The appellant forced
Smith to call the complainant, William Jones (a/k/a/ “Boo”), to invite him to
Smith’s house to smoke marijuana.          The appellant and Price believed the
complainant had information on where to find Butler. When the complainant
arrived, the appellant and Price forced him to sit next to Smith while he was
interrogated at gunpoint about Butler’s whereabouts.          Charles Patterson, a
neighborhood handyman, knocked on the front door around this time; the appellant
and Price forced him to stand in a corner of the room while Smith and the
complainant were being questioned.

      When Price was distracted, the complainant jumped up and tried to wrestle
his gun away.      After a short fight, the appellant and Price both shot the
complainant. The appellant and Price took cell phones and identification from the


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complainant, Smith, and Patterson before fleeing. The complainant died on the
way to the hospital of multiple gunshot wounds.

      The appellant was indicted for the intentional killing of Jones while in the
course of committing several different violations of the Texas Penal Code:

                    burglary or attempted burglary of a building owned by Smith;1

                    kidnapping or attempted kidnapping of Jones;2

                    kidnapping or attempted kidnapping of Smith; 3

                    kidnapping or attempted kidnapping of Patterson; 4

                    robbery or attempted robbery of Jones;5

                    robbery or attempted robbery of Smith; 6 and

                    robbery or attempted robbery of Patterson7

A jury found the appellant guilty of capital murder, and the trial court assessed the
mandatory sentence of life imprisonment without parole.

      The appellant raises six issues on appeal: (1) The amended indictment failed
to provide adequate notice and protect the appellant from double jeopardy; (2) the
jury charge violated the appellant’s constitutional and statutory rights to a
unanimous verdict; (3) the jury charge included theories of the crime unsupported

      1
          See Tex. Penal Code Ann. § 30.02 (Vernon 2011).
      2
          See Tex. Penal Code Ann. § 20.03 (Vernon 2011).
      3
          See id.
      4
          See id.
      5
          See Tex. Penal Code Ann. § 29.02 (Vernon 2011).
      6
          See id.
      7
          See id.
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by the evidence; (4) automatic punishment of life imprisonment without parole
constitutes “cruel and unusual punishment” that violates the Eighth Amendment of
the U.S. Constitution; (5) automatic punishment of life imprisonment without
parole constitutes “cruel or unusual punishment” that violates Article I, section 13
of the Texas Constitution; and (6) automatic punishment of life imprisonment
without parole is a violation of the separation of powers set out in Article 2, section
1 of the Texas Constitution.

                                    ANALYSIS

I.    Waiver

      The Texas Rules of Appellate Procedure require a party to preserve error for
appellate review by demonstrating the error on the record. Tex. R. App. P. 33.1(a);
Clark v. State, 305 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 2010),
aff’d, 365 S.W.3d 333 (Tex. Crim. App. 2012).            The party must make the
complaint in a timely manner and state the grounds for the ruling that the
complaining party seeks from the trial court with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from
the context. Tex. R. App. P. 33.1(a)(1)(A). In raising the complaint on appeal, the
party must ensure the point of error is the same as the complaint or objection made
during trial. Clark, 305 S.W.3d at 354. Even constitutional errors can be waived if
a party fails to properly object to the errors at trial. Id. at 355. A challenge to the
constitutionality of a statute may not be raised for the first time on appeal.
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial challenges);
Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (as-applied
challenges). Therefore, if a party’s objection at trial does not correspond with its
issue on appeal, the party has waived that issue. Clark, 305 S.W.3d at 354.

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      Here, the appellant argues that the issues raised on appeal were preserved in
the trial court by his motion to quash the indictment and his objection to the jury
charge.

      In relevant part, the appellant’s motion to quash provides:

      The [appellant’s] right to have his guilt determined by a unanimous
      verdict and have a fundamentally fair trial as provided by the due
      process clause of the U.S. Constitution is violated by the Texas rule
      allowing a general verdict without requiring jurors to agree on the
      manner the alleged crime was committed.
                      *                  *                 *
      Under the present indictment there are no less than 15 ways the
      [appellant] might be found guilty of Capital Murder. It is possible for
      the jury to return a general verdict of guilt without any two jurors
      agreeing to the manner in which he could be found guilty.

The defense counsel made a similar argument when he objected to the jury charge:

      I do have one objection, Judge. I would ask that the State be required
      to elect a specific paragraph in the indictment of one of the
      enumerated three felonies, whether it’s burglary of a building,
      kidnapping[,] or robbery, so that the — my client gets a fair trial and
      there is no due process violation of his right to unanimous verdict
      from the Jury.

      I think the way the Jury charge is, is confusing, it’s misleading and the
      State — not necessary for them to have three enumerated felonies in
      this case, Your Honor.

The appellant offers no other vehicle for preservation beyond his motion to quash
and his charge objection. Neither makes any mention of inadequate notice or
double jeopardy, the jury charge’s inclusion of theories unsupported by the
evidence, cruel and unusual punishment under the United States Constitution, cruel




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or unusual punishment under the Texas Constitution, or a violation of the
separation of powers.8 Therefore, the appellant has waived these arguments.

       We overrule the appellant’s first, third, fourth, fifth, and sixth issue.

II.    Unanimity

       In his second issue, the appellant argues that, “The jury charge should have
required the jury to be unanimous as to a theory of Capital Murder, with multiple
verdict forms, if necessary.” According to the appellant, the trial court violated his
constitutional and statutory rights to a unanimous verdict by overruling his request
that the State elect which underlying felony it would rely on to establish capital
murder. Price raised the same argument in his separate appeal, which was rejected.
See Price v. State, No. 14-11-00122-CR, 2012 WL 3292960, at *7 (Tex. App.—
Houston [14th Dist.] Aug. 14, 2012, pet. ref’d) (mem. op., not designated for
publication). We see no basis for reaching a different conclusion here.

       It is not a violation of the defendant’s right to a unanimous jury for the trial
court to submit disjunctively all alternative theories of capital murder contained
within section 19.03, whether they are found in the same or different subsections,
so long as the same victim is alleged for the predicate murder. Gamboa v. State,
296 S.W.3d 574, 584 (Tex. Crim. App. 2009). Nothing prohibits a single capital
murder from containing alternative underlying offenses that are the same statutory
offense but with different victims or different underlying methods of commission,
so long as the same victim is alleged with respect to the predicate murder. Davis v.

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        This court has rejected the contention that life imprisonment without parole for an adult
defendant violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the
United States Constitution, the Cruel or Unusual Punishment Clause of the Texas Constitution,
and the Separation of Powers Section of the Texas Constitution. See Wilkerson v. State, 347
S.W.3d 720, 723, 725 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Battle v. State, 348
S.W.3d 29, 32 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
                                               6
State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010). Accordingly, the trial court
did not violate the appellant’s right to a unanimous verdict by failing to order the
State to elect a single underlying felony upon which to base its capital murder case.

      We overrule the appellant’s second issue.




                                 CONCLUSION

      Having overruled all of the appellant’s issues on appeal, we affirm the
judgment of the trial court.




                                       /s/       William J. Boyce
                                                 Justice



Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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