AFfiRM; Opinion issued October 31 2012k




                                              In The
                                  (tniirt nf Appiati
                           iftl! Ohtrirt nf Lrxa at Ja11a
                                      No, 05-11-01601-CR
                                      No, 05-1 1-01602-CR


                      JON
                      V
                      1 I’IiAN I)EliONT hOLLOWAY, Appellant

                                                V.

                              THE STATE OF TEXAS, Appellec


                      On Appeal from the Criminal District Court No. 5
                                    Dallas County, Texas
                     Trial Court Cause Nos. F05-60561-L & F09-58725-L


                             MEMORANDUM OPINION
                          Before Justices Moseley, Fillmore, and Myers
                                  C)pinion By Justice Fillmore

       ilie trial court granted the State’s motions to adjudicate, tound Jonathan Demont Holloway

guilty of aggravated robbery and assault involving family violence, and assessed punishment of six

years’ imprisonment on each oftense. Holloway complains he was deprived of his rights to due

process and due course of law because the State failed to give him timely written notice of the

motions to adjudicate. Because this complaint was not preserved for our consideration, we affirm

the trial court’s judgments. The background of the cases and the evidence admitted at the hearing

are well known to the parties, and we therefore limit recitation of the facts.     We issue this

memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be
app! ied   is   \   dl seti lcd,

                                                          flackgrourni

           On March 16, 2006, Holloway pleaded guilty to aggravated robbery (cause number F05-

60 I L). Pursuant to a pica bargain arccmcnt, the trial court dctirrcd adjudicating Holloway’s

guilt, placed I lolloway on              community    supervision for ibur years, and assessed a fine of $1000. On

February 10, 2009, the State moved to adjudicate guilt, asserting Holloway violated a number of the

conditions of his community supervision, including committing a new otfense of unlawfully carrying

a weapon. On April I 2009. the trial court continued l-lolloway on community supervision, but
                                   .




modified the conditions of community supervision to require Holloway to spend sixty days inail,

participate in a substance abuse and/or psychological health treatment program, and submit to

random urinalysis.

           On October 29. 2009, the State filed a second motion to adudicatc guilt                in   the aggravated

robbery case on grounds Holloway had committed assault involving family violence (cause number

F09-58725—L) and failed                  to   pay fees and restitution required by the tenus of his community

supervision. on          January 25, 2010, Holloway pleaded guilty to the assault offense. The trial court

deferred adjudicating holloway’s guilt on the assault charge, placed Holloway                          on   community

supervision for a        period        of four years, and assessed a $500 fine. The trial court also extended the

period ot community supervision in the aggravated robbery case by two years.

       On December 28, 2010. the State tiled                  motions to    adjudicate guilt in both cases, alleging

1-lolloway violated a number of conditions of his community supervision, including testing positive

for “TlIC” on two occasions and Fuling to report to his probation officer. The hearing on the State’s

motions occurred on October I I 2011. Holloway  .                  was   served with the motions on the day of the

hearing.




                                                             —2—
         Holloway entered an open plea of true to the allegations he tested positive for “THC” and

 failed to report to his probation officer. During the hearing, Holloway testified he had reviewed the

 motions with his attorney and understood each allegation in the motions. Holloway also imlicated

 he understood he had a right to a hearing on the motions, a right to call witnesses, and a right to

 cross-examine the State’s witnesses. Holloway answered affirmatively when asked ifhe wanted to

 “give up” those rights and proceed on the plea of”true.” Holloway admitted he smoked marijuana

 while on community supervision and failed to report as required. Holloway indicated that ifthe trial

 court continued him on community supervision, he would abide by all conditions.

        The trial court granted the State’s motions, adjudicated Holloway guilty ofboth offenses, and

 sentenced him to six years’ imprisonment on each offense.

                                              Analysis

        Holloway complains on appeal that because he was not served with the State’s motions to

adjudicate until the day of the hearing, he was deprived of due process of law under the Fifth

Amendment to the United States Constitution and due course of law under article I, section 19 of

the Texas Constitution. Generally, to preserve a complaint for appellate review, a party must make

a timely, specific request, objection, or motion in the trial court and obtain an adverse ruling from

the trial court. TEx. R. App. P. 33.1(a); Pena v. State, 285 S.W.3d 459,464 (Tex. Crim. App. 2009)

(to avoid forfeiting complaint, party must “let the trial judge know what he wants, why he thinks he

is entitled to it, and to do so clearly enough for thejudge to understand him at a time when thejudge

is in the proper position to do something about it”) (quoting Lankston v. State, 827 S.W.2d 907,909

(rex. Crim. App. 1992)). The requirement ofpreservation oferror generally applies to constitutional

errors. Fuller v. State, 253 S.W.3d 220, 232 (rex. Crim. App. 2008) (“almost all error—even

constitutional error—may be forfeited ifthe appellant failed to object”); Curry v. State, 910 S.W.2d




                                               -3-
  30, 4 (ic x ( ‘rim. App. 1
                        .
                                                5
                                                i
                                                      ) ( appellant did not raise due pwcess and due Course of law

  obeetions in trial court and, therefore, hued to preserve issue for appellate review).
                                                                                1 A reviewing

  court should not address the merits of an issue that has not been preserved for appeal. Wilson v.

 Slate,    311 S.W .3d 452, 473 (Tex. (rim. App. 2010) (per curiam) (op. on reh’g) (quoting frord                                                    i’.


 State, 305 S,W.3d 530, 532 (Tex. Crim. App. 2009)).

             Holloway did not raise his complaint that he was deprived of his rights to due process and

 due course ot law in the trial court. Accordingly, he failed to preserve this complaint tor our review.

 See TEx, R. APP. P. 33,1; Pena, 285 SW.3d at 454; Curiy, 910 S.W.2d at 496,2 We resolve

 Hollowavs sole issue against him and aflirm the trial court’s judgments.




                                                                               ROBERT M. FILLMORE
                                                                               JUSTiCE
Do Not Publish
TEx. R. ApP. P.47

 ii IÔOIF.U05




     See aivo Norman eState, N .A0-76063. 20) I WL I 158574, at *3 (Tex. Crim. App. Feb. 6. 20) ((not
                                                                                                             designated for publica1ion (appellant
did ml raise due process and due course of law objections in trial court and, therefore, did not preserve
                                                                                                          complaints for appellate rc iew).

     2
       See also Legue v. State, Nos, 05-09-00042-CR, 05-09-00043-CR. 2010 WL 670230, at * I (Sex, App.--—Dal
                                                                                                                  las Feb. 6, 2010. no pet.) (mem.
op., not designated forpublication): Lore/Ic State. No. 10-10-00180-CR. 2012 WL503653. at * I
                                                                                                 (Tea. App --—Waco Feb. 15. 2012. nopet.) (mern.
op.. not dcsinated for publication): ilanlin.v t. State. No. 02— —00 I 7—CR. 2)) I \VL 6200870. at “2
                                                                                                      (1 cx. App-—Fort Worth Dec. 5. 2))) 1 pet.
refd ((item. op.. not designated for publication).




                                                                     -4-
                                  unrt nf Apprals
                        .FiftIi iitrirt ul tirxa al Ja1Ia

                                       JUDGMENT
JONATHAN DEMON]’ HOLLOWAY.                          Appeal from the Criminal District Court No.
Appel Lint                                          5 of Dallas County, Texas. (Tr.CtNo, F05—
                                                    60561 -L).
No. 051l’01601CR             V.                     Opinion delivered by Justice Fillmore,
                                                    Justices Moseley and Myers participating.
‘I’I-IE SlATE OF TEXAS. Appellee

       B sed on th. Corn ts opinion of this datc thc tidgrntnt of the   ti iii   court   is   AFI 1RMI I)



Judgment entered October 31, 2012.

                                                               I



                                                    ROBERT M. FILLMORE
                                                    JUSTICE
                                         ui i\ppiati
                                       Qtutrt

                         FiftI! OlaIrirt 01 ixa at alla
                                         JUDGMENT
JONATTIAN DEMONT H( LLO WAY,                         Appeal from the Criminal District Court No.
i\ppellant                                           5 of Dallas County. Texas. (TrCt.No. FO9
                                                     5$725L.
No. O’ 11 () 1 (()2(’R                               Opinion delivered by Justice Fillmore,
                                                     Justices Moseley and Myers participating.
TFIE STATE. OF TEXAS, Appellee

       Base(l on the Court’s opinion ol this (late. the judgment ol the trial court is AFFI kM El).




i ud2ment entered October 3 I 2(312.




                                                     ROBERT M. FILLMORE
                                                     JUSTiCE
