                                  NO. 07-07-0067-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 JANUARY 8, 2008
                         ______________________________

                    TERRELL ZEBADHAL THOMAS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY;

         NO. D-1-DC-06-200790; HONORABLE JULIE H. KOCUREK, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Terrell Zebadhal Thomas, appeals his conviction for the offense of

unlawful possession of a firearm by a felon, enhanced by two prior felony convictions, and

sentence to 20 years confinement in the Institutional Division of the Texas Department of

Criminal Justice.   On appeal, appellant raises the single issue that the same prior

conviction was used both as an element of the offense and as an enhancement of

punishment. We affirm.
                                       Background


      The indictment against appellant alleges that he possessed a firearm before the fifth

anniversary of his release from confinement in prison for the felony offense of assault of

a public servant. The assault of a public servant conviction was also identified as a prior

felony conviction in the first paragraph of the enhancement portion of the indictment. The

indictment further alleges a second prior felony conviction as an enhancement of the

indictment.


      Following a trial on the merits, a jury convicted the appellant of the primary offense

of unlawful possession of a firearm by a felon. Appellant went to the trial court for

punishment and entered a plea of “Not True” to both enhancement paragraphs. After

hearing the evidence, the trial court found that both allegations were true and sentenced

appellant to 20 years confinement.


                                         Analysis


      Appellant correctly points out that the same prior conviction may not be used to

prove both an element of an offense and an enhancement allegation contained in the

same indictment. See Ramirez v. State, 527 S.W.2d 542, 544 (Tex.Crim.App. 1975);

Garcia v. State, 169 Tex.Crim. 487, 335 S.W.2d 381, 382 (1960). This became known as

the “Garcia-Ramirez” rule and was subsequently reaffirmed after the passage of the Texas

Penal Code. See Wisdom v. State, 708 S.W.2d 840, 845 (Tex.Crim.App. 1986).




                                            2
       However, before we can analyze the effect of any error committed by the trial court,

the issue of preservation of error must be examined. To preserve an issue for appellate

review, the complaining party must make a timely objection to the trial court that properly

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); Butler v. State, 872 S.W.2d

227, 236 (Tex.Crim.App. 1994); Adams v. State, 179 S.W.3d 161, 164 (Tex.App.–Amarillo

2005, no pet.). Preservation of an objection to the indictment must be raised prior to trial

or the same is waived. See Teal v. State, 230 S.W.3d 172, 176-77 (Tex.Crim.App. 2007).

Preservation of error is a systemic requirement that a first-level appellate court should

review on its own motion. See Jones v. State, 942 S.W.2d 1, 2 (Tex.Crim.App. 1997);

Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App. 1992) (op. on reh’g).


       The record of the trial reveals that there was no objection nor motion to quash the

indictment claiming that the indictment impermissibly allowed the State to plead the same

prior felony conviction as an element of the offense and for purposes of enhancement.

Further, no objection was made by appellant at the time the evidence of the prior felony

conviction was offered for purposes of enhancement of punishment. Having found no

objection of any type, the issue is waived and there is nothing for review. Butler, 872

S.W.2d at 236.1




       1
        Further, we note, appellant has not provided this court with any analysis or briefing
regarding why this error should be considered harmful error and, thereby, reversible. With
no analysis or briefing on the subject there is nothing for the court to review. TEX . R. APP.
P. 38.1(h); Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App. 1992); Murchison v.
State, 93 S.W.3d 239, 254 (Tex.App.–Houston [14th Dist.] 2002, pet. ref’d).

                                              3
                                       Conclusion


        Having determined that there was no error preserved, we affirm the judgment of the

trial court.




                                                 Mackey K. Hancock
                                                     Justice




Pirtle, J., concurring.




Do not publish.




                                             4
                                 NO. 07-07-0067-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                  JANUARY 8, 2008

                        ______________________________

                   TERRELL ZEBADHAL THOMAS, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE
                      _________________________________


             FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY;

        NO. D-1-DC-06-200790; HONORABLE JULIE H. KOCUREK, JUDGE

                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              CONCURRING OPINION


      I agree with the majority’s conclusion that the indictment incorrectly attempts to

enhance the range of punishment for the third-degree felony offense of unlawful

possession of a firearm by a felon because a prior conviction may not be used to prove

both an element of an offense and an enhancement allegation. See Garcia v. State, 169

Tex.Crim. 487, 335 S.W.2d 381, 382 (1960); Ramirez v. State, 527 S.W.2d 542, 544


                                           5
(Tex.Crim.App. 1975).     I respectfully disagree, however, with the application of the

doctrines of preservation of error and waiver in this situation. Notwithstanding that

difference, we reach the same conclusion that the judgment of the trial court should be

affirmed.


       In Ramirez, the Court of Criminal Appeals held that, not withstanding the absence

of an objection in the trial court, an indictment purporting to use the same prior conviction

for enhancement that was alleged as an element of the primary offense of unlawful

possession of a firearm by a felon was “fundamentally defective, and we should and will

consider its deficiency in the interest of justice.” Ramirez, 527 S.W.2d at 544. The

assessment of punishment in accordance with the provisions of the Texas Penal Code is

a systemic or absolute requirement in any case and an appellant is entitled to complain on

appeal that such a requirement was violated, even if he fails to preserve error through a

timely and proper objection. Bessey v. State, ___S.W.3d___, No. PD-1401-06, 2007 WL

3375411, at *2 (Tex.Crim.App. Nov. 14, 2007); Mendez v. State, 138 S.W.3d 334, 340

(Tex.Crim.App. 2004).


       A nonconstitutional error, defect, irregularity, or variance that does not affect a

substantial right must be disregarded. See Tex. R. App. P. 44.2(b). A substantial right is

affected when the error has a substantial and injurious effect or influence on the verdict.

Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). In determining whether the error

had a substantial and injurious effect on the verdict we must examine the entire record.

Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App. 2001). Furthermore, a “structural



                                             6
error” is not subject to a harmless-error analysis. Mendez, 138 S.W.3d at 339. Not every

error affecting a systemic or absolute right is a structural error. A structural error is a

“defect affecting the framework within which the trial proceeds, rather than simply an error

in the trial process itself.” Id. at 340. Use of a prior conviction as both an element of an

offense and as an enhancement allegation is simply an error in the trial process, it is not

a structural error and as such it is subject to a harmless-error analysis.


       Here, Appellant was prosecuted for the offense of unlawful possession of a firearm

by a felon, a third degree felony.2 The indictment alleged two prior felonies as

enhancements pursuant to § 12.42(a)(3) of the Texas Penal Code, making the offense

punishable as a second degree felony.3         The judgment reflects that Appellant was

adjudicated guilty of a second degree offense, with a finding of true as to both the “1st

Enhancement Paragraph” and the “2nd Enhancement/Habitual Paragraph,” and assessed

punishment at confinement for a term of 20 years.


       The conviction alleged as both an element of the offense and as an enhancement

was superfluous to a determination of the appropriate range of punishment. From the


       2
           Tex. Penal Code Ann. § 46.04(e).
       3
         A felony offense enhanced by two prior felony convictions is punishable by
imprisonment for life, or for any term of not more than 99 years or less than 25 years, if the
second previous felony conviction is for an offense that occurred subsequent to the first
previous felony conviction having become final. Tex. Penal Code Ann. § 12.42(d). A
review of the indictment in this case reveals that, although the indictment alleges two prior
felony convictions as enhancements, it does not allege the requisite language to bring this
offense within the purview of § 12.42(d). Therefore, even if both prior felony convictions
could have been used to enhance the primary conviction, the range of punishment would
still have been the punishment range for a second degree felony. Tex. Penal Code Ann.
§ 12.42(a)(3).

                                              7
judgment we can determine that the trial court thought that it was assessing punishment

for an offense punishable as a second degree felony. Furthermore, this is not a situation

where the trial court considered something that it should not have considered. Both prior

convictions were properly before the court for consideration in assessing punishment. The

punishment assessed was within the appropriate range of punishment. Therefore, based

upon the record, I have a fair assurance that the error did not have a substantial and

injurious influence on the punishment assessed by the trial court and I conclude that the

error was harmless. See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365

(Tex.Crim.App.2001). Accordingly, I too would affirm.



                                               Patrick A. Pirtle
                                                   Justice



Do not publish.




                                           8
