                     In the
                Court of Appeals
        Second Appellate District of Texas
                 at Fort Worth
              ___________________________

                   No. 02-18-00334-CR
              ___________________________

DUSTIN WADE HESTAND AKA DUSTIN W. HESTAND, Appellant

                              V.

                   THE STATE OF TEXAS


           On Appeal from the 355th District Court
                   Hood County, Texas
                 Trial Court No. CR13595


           Before Gabriel, Pittman, and Birdwell, JJ.
           Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Dustin Wade Hestand appeals from his fifteen-year sentence arising

from his conviction for possession of less than one gram of methamphetamine. In a

single issue, he argues that the offense was invalidly enhanced to a second-degree

felony based on an ineligible juvenile adjudication. Because Hestand did not preserve

this issue for our review, we affirm the trial court’s judgment.

      Hestand was indicted for possession of less than one gram of

methamphetamine, a state-jail felony.           See Tex. Health & Safety Code Ann.

§ 481.115(a)–(b); Tex. Penal Code Ann. § 12.35(a). The indictment included two

enhancement paragraphs, alleging that Hestand had been convicted of the felony

offenses of possession of methamphetamine in 2013 and of the manufacture or

delivery of a controlled substance in 2008. The indictment further contained three

habitual-offender paragraphs, alleging that Hestand had been convicted of the felony

offenses of bail jumping and possession of a controlled substance in 2008 and had

been adjudicated as a juvenile of engaging in delinquent conduct for unauthorized use

of a motor vehicle in 2001. Before trial, the State filed a notice that it intended to

enhance the applicable punishment range from a state-jail felony to a second-degree

felony by proving Hestand’s 2013 possession conviction, his 2008 manufacture or

delivery conviction, his 2008 bail-jumping conviction, his 2008 possession conviction,

and his 2001 juvenile adjudication. See Tex. Penal Code Ann. § 12.425(b). See generally

Brooks v. State, 957 S.W.2d 30, 33–34 (Tex. Crim. App. 1997) (recognizing State may

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notify defendant of sentence-enhancement convictions in a notice filed at least ten

days before trial and is not required to amend indictment).

        A jury found Hestand guilty of the indicted offense. At the punishment trial,

the State proceeded on two of the enhancements: the 2008 manufacture or delivery

conviction and the 2008 bail-jumping conviction, both felony convictions. It also

proceeded on one habitual-offender allegation: the 2001 juvenile adjudication for the

delinquent conduct of unauthorized use of a motor vehicle. Hestand pleaded not

true.

        The State introduced the penitentiary packets proving the 2008 felony

convictions and introduced evidence of the 2001 juvenile adjudication. Hestand

objected to the evidence of the 2008 felony convictions, relying on “Rule 403” and

the fact that they were “more than 10 years old and stale.” He objected to the

evidence of his 2001 juvenile adjudication on the grounds of “staleness” and the lack

of a fingerprint comparison. The trial court overruled Hestand’s objections and

admitted the evidence. The State also introduced evidence that Hestand had been

convicted of offenses involving controlled substances four other times between 2004

and 2015.     The jury additionally heard, over Hestand’s rule-403 objection, that

Hestand had been convicted of assault involving family violence in 2016,

misdemeanor theft in 2015, and violating a protective order in 2016. The jury charge

on punishment included instructions regarding the 2008 convictions for manufacture

or delivery of a controlled substance and bail jumping—the enhancement

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allegations—and regarding the 2001 juvenile adjudication—the habitual-offender

allegation; Hestand did not object to the jury charge.

      The jury found the enhancement and habitual allegations true, enhancing the

available punishment range to that of a second-degree felony, and assessed his

sentence at fifteen years’ confinement. See Tex. Penal Code Ann. § 12.33. Before the

trial court orally pronounced sentence on June 21, 2018, Hestand’s counsel voiced no

objection to the imposition of the assessed sentence although given the opportunity

to do so.

      Hestand filed a pro se motion for new trial and argued that his sentence had

been “illegally enhanced” through use of the juvenile adjudication, which was based

on unauthorized use of a motor vehicle—a state-jail felony. See Tex. Penal Code Ann.

§ 31.07(b); see also id. § 12.425(b) (prohibiting use of state-jail felonies to enhance

punishment range from that of a state-jail felony to a second-degree felony). The trial

court held a nonevidentiary hearing on the motion on July 20, 2018, and orally denied

it on the record. Because the trial court never entered a written order denying the

motion, it was deemed denied on September 19, 2018—seventy-five days after

sentence was imposed in open court. See Tex. R. App. P. 21.8(a), (c); State v. Zavala,

28 S.W.3d 658, 659 (Tex. App.—Corpus Christi 2000, pet. ref’d).

      Hestand now appeals and argues that the State’s “[u]se of a state jail felony (a

juvenile adjudication) to enhance his sentence for a [state-jail] felony to a second[-]

degree felony was invalid.” The State argues that because Hestand failed “to alert the

                                           4
trial court” that the juvenile adjudication could not be used to enhance his

punishment range, he has failed to preserve this issue for our review. See Tex. R. App.

P. 33.1.

       The State fails to recognize that Hestand raised the issue in his pro se motion

for new trial; however, waiting until a motion for new trial to raise an objection to a

sentencing issue is untimely if there was an opportunity to object during the

punishment hearing. See Burt v. State, 396 S.W.3d 574, 577 n.4 (Tex. Crim. App. 2013)

(citing Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999)); see, e.g., Sanchez v.

State, 120 S.W.3d 359, 366–67 (Tex. Crim. App. 2003); Franks v. State, No. 07-18-

00075-CR, 2019 WL 1349389, at *2 (Tex. App.—Amarillo Mar. 20, 2019, no pet. h.)

(mem. op., not designated for publication); Torres v. State, 424 S.W.3d 245, 256 (Tex.

App.—Houston [14th Dist.] 2014, pet. ref’d).             Here, Hestand had multiple

opportunities before trial and during the punishment phase to object to the

enhancement and habitual-offender notices.          The habitual-offender notice that

Hestand specifically attacks here—the 2001 juvenile adjudication—was included in

the indictment, the State’s pretrial notice, the State’s punishment evidence, and the

jury charge on punishment. At no point did Hestand raise an objection to the

propriety of enhancing his sentence with the 2001 juvenile adjudication.              And

although Hestand was given an opportunity to raise an objection to the jury-assessed

sentence before it was imposed, he did not object on the basis that he asserts on

appeal. The first time Hestand raised the issue he raises on appeal was in his pro se

                                            5
motion for new trial.       Under the facts presented here, that was too late for

preservation purposes. See Burt, 396 S.W.3d at 577 & n.4; Sanchez, 120 S.W.3d at 366–

67.

      Because Hestand did not preserve any error in his sentence for our review, we

overrule his sole issue and affirm the trial court’s judgment. See Tex. R. App. P.

43.2(a). We DENY court-appointed counsel’s motion to withdraw, which he filed

only at Hestand’s insistence.1 See Miller v. State, No. 02-18-00467-CR, 2019 WL

1179421, at *1 (Tex. App.—Fort Worth Mar. 14, 2019, no pet.) (per curiam mem. op.,

not designated for publication); see also Tex. R. App. P. 48.4.        We also DENY

Hestand’s pro se motion to “recuse” his appellate counsel.


                                                      /s/ Lee Gabriel

                                                      Lee Gabriel
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 25, 2019


      1
         Hestand asked counsel to withdraw based on “improper authorities and lack
of detail” in his appellate brief. We disagree with Hestand’s attack on counsel’s brief
and note that Hestand does not have the right to appointed counsel of his choice. See
Perez v. State, 261 S.W.3d 760, 766 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).
Because Hestand has not met his burden to show an adequate reason to appoint
substitute counsel at this late stage of his appeal, he is required to accept appointed
counsel. See Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985); Carroll v. State,
176 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).


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