                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00356-CR


ROY MICHAEL LIGHTSEY                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                         MEMORANDUM OPINION1

                                     ----------

      Appellant Roy Michael Lightsey appeals the sentence from his conviction

on two counts of possession of a controlled substance, contending in one point

that the trial court reversibly erred by considering the operation of parole law in

assessing the sentence. We affirm.

                               Background Facts



      1
       See Tex. R. App. P. 47.4.
      One day in March 2010, Fort Worth Police Department Officer Terrance

Horn was at a convenience store when one of the store’s employees told Officer

Horn that appellant had placed toothpaste tubes in his pocket.                 Appellant

attempted to leave the store with the toothpaste, so Officer Horn detained him,

ultimately arrested him, and found a candy bottle with thirteen pill capsules in his

pocket. A chemist tested the pills’ contents and determined that they contained

.21 grams of cocaine and .67 grams of heroin.

      A grand jury indicted appellant for two counts of possession of a controlled

substance: possession of less than one gram of heroin and less than one gram

of cocaine.2     Based on the fact that appellant had two prior state-jail-felony

convictions for possessing controlled substances, the indictment enhanced

appellant’s potential punishment from a state jail felony range to a third-degree

felony range.3

      Appellant pled not guilty on both counts, but after deliberating for only a

few minutes, the jury convicted him of both of them. Appellant elected to have

the trial court assess his punishment. During the punishment phase, appellant

      2
         See Tex. Health & Safety Code Ann. §§ 481.102(2), (3)(D), .115(b) (West
2010).
      3
       At the time of appellant’s offense, section 12.42(a)(1) of the penal code
provided, ―If it is shown on the trial of a state jail felony . . . that the defendant has
previously been finally convicted of two state jail felonies, on conviction the
defendant shall be punished for a third-degree felony.‖ Act of May 29, 1995, 74th
Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2735, amended by Act of
May 25, 2011, 82nd Leg., R.S., ch. 834, § 2, 2011 Tex. Sess. Law Serv. 2104,
2104 (West); see Campbell v. State, 49 S.W.3d 874, 875 (Tex. Crim. App. 2001).


                                            2
pled true to the enhancement allegations in the indictment.              After hearing

appellant’s girlfriend and sister testify, and after listening to the parties’ closing

arguments, the judge stated in part, ―[C]onsidering that you might be eligible for

parole after you serve one-quarter of the sentence, this is what I believe is

appropriate . . . . [T]he Court hereby assesses your punishment at six years [on

each count] in the Institutional Division of the Texas Department of Criminal

Justice.‖ Appellant brought this appeal.

                               Preservation of Error

      Appellant argues only that the trial court violated article 37.07 of the code

of criminal procedure by considering the operation of parole law in assessing his

sentence.4 To preserve a complaint for our review, a party must have presented

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

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280

      4
        See Tex. Code Crim. Proc. Ann. art. 37.07, § 4 (West Supp. 2010)
(stating that in the penalty phase of some jury trials, the jury should be instructed
about various aspects of parole law but should be informed that it may not
consider the manner in which the parole law may be applied to the defendant on
trial). Appellant states in his brief, ―Although this was not a jury trial the Appellant
believes it [is] also improper for the Trial Judge to sentence a defendant based
on . . . the operation of the parole laws.‖ For the reasons stated below, we will
not expressly decide whether the principles underlying section four of article
37.07 should affect a trial court’s consideration of parole law in assessing
punishment. We note, however, that we have held that although juries may not
consider whether parole or good-conduct time may be awarded to a defendant,
juries may use their knowledge of parole eligibility to fashion a sentence that
contemplates the date that a defendant will become eligible for parole. Waters v.
State, 330 S.W.3d 368, 374 (Tex. App.—Fort Worth 2010, pet. ref’d).


                                           3
S.W.3d 235, 238–39 (Tex. Crim. App. 2009). 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); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.

2004).   We should not address the merits of an issue that has not been

preserved for appeal.   Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009).

      Most complaints, ―whether constitutional, statutory, or otherwise, are

forfeited by failure to comply with Rule 33.1(a).‖ Mendez, 138 S.W.3d at 342.

Rule of appellate procedure 33.1 ―does not apply to rights which are waivable

only or to absolute systemic requirements, the violation of which may still be

raised for the first time on appeal.‖ State v. Dunbar, 297 S.W.3d 777, 780 (Tex.

Crim. App. 2009); see Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App.

2009).   Systemic requirements—also known as absolute requirements or

prohibitions—are laws that a trial court has a duty to follow even if the parties

wish otherwise. Mendez, 138 S.W.3d at 340; see Anderson, 301 S.W.3d at 279.

Systemic requirements include jurisdiction of the person or subject matter, a

constitutional requirement that a district court conduct its proceedings at the

county seat, and a constitutional prohibition against ex post facto laws. Saldano

v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002); Hall v. State, 303

S.W.3d 336, 341 (Tex. App.—Amarillo 2009, pet. ref’d). ―Waivable only‖ rights

include the right to the assistance of counsel and the right to trial by jury.


                                        4
Saldano, 70 S.W.3d at 888. Appellant has not contended or provided any reason

for us to hold that a court’s consideration of parole law during punishment

violates a systemic requirement, nor does appellant argue that article 37.07

creates a waivable only right for the nonconsideration of parole law by a trial

court in assessing a sentence.

      Moreover, we cannot conceive of any reason why rule 33.1(a) would not

apply to appellant’s challenge to the trial court’s sentence.      Generally, an

appellant may not complain about his sentence for the first time on appeal. Curry

v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Laboriel-Guity v. State,

336 S.W.3d 754, 756 (Tex. App.—Fort Worth 2011, pet. ref’d). In fact, other

appellate courts that have reviewed this type of issue have applied rule 33.1(a).

See, e.g., Moreno v. State, 961 S.W.2d 512, 515 (Tex. App.—San Antonio 1997,

pet. ref’d); see also Nguyen v. State, No. 01-98-00256-CR, 1999 WL 450026, at

*2 (Tex. App.—Houston [1st Dist.] June 17, 1999, pet ref’d) (not designated for

publication) (holding that by failing to object to a judge’s comment, a defendant

forfeited a complaint that the judge erred by ―considering the effect of good

conduct time and parole release in assessing the appropriate punishment‖).

      Moreno is instructive regarding a defendant’s need to preserve an

objection to the consideration of parole law during punishment. See 961 S.W.2d

at 515. Moreno argued that reversible error resulted from the jury’s consideration

of parole law during deliberations. Id. But Moreno neither objected to the jury’s




                                        5
consideration of parole law nor filed a motion for new trial. Id. Accordingly, the

appellate court ruled that he failed to preserve the alleged error. Id.

      This appeal is similar to the appeal in Moreno. Like Moreno, appellant

argues that his sentence was based on the trial court’s improper consideration of

parole law.    Although a jury, rather than a judge, assessed punishment in

Moreno, we conclude that this distinction is not relevant to the issue of whether a

defendant must object to a punishment assessment that manifests a

consideration of parole law. Appellant did not object to the trial court’s stated

consideration of parole law.5 The first time appellant raised this concern was on

appeal to this court.    Thus, we conclude that appellant forfeited that issue.

See Tex. R. App. P. 33.1(a); Mendez, 138 S.W.3d at 342 (―Except for complaints

involving systemic (or absolute) requirements, or rights that are waivable only, . .

. all other complaints . . . are forfeited by failure to comply with Rule 33.1(a).‖)

(emphasis added).




      5
        In his motion for new trial, appellant contended only that the evidence was
insufficient to support the jury’s guilty verdict.


                                          6
                                   Conclusion

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




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

WALKER, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 13, 2011




                                         7
