




02-11-304-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00304-CR
 
 



Dwayne Holmes


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM Criminal
District Court No. 2 OF Tarrant COUNTY
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OPINION
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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 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 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.
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
 








 
 
 


















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00304-CR
 
 



Dwayne Holmes


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM Criminal
District Court No. 2 OF Tarrant COUNTY
----------
CONCURRING
OPINION
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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,[2]
which I have adopted in a prior concurring and dissenting opinion,[3]
I therefore respectfully concur.
 
 
LEE ANN DAUPHINOT
JUSTICE
 
PUBLISH
 
DELIVERED:  August 30, 2012




[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]Karenev v. State,
281 S.W.3d 428, 436–40 (Tex. Crim. App. 2009) (Cochran, J., concurring).


[3]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).


