                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00164-CR


James Wendell Warren                      §   From Criminal District Court No. 3

                                          §   of Tarrant County (1241116D)

                                          §   November 8, 2012

v.                                        §   Opinion by Justice Walker

                                          §   Concurrence and Dissent by Justice
                                              Dauphinot

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Sue Walker
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00164-CR


JAMES WENDELL WARREN                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                   I. INTRODUCTION

      Appellant James Wendell Warren appeals the thirty-five-year sentence he

received from the trial court after a jury convicted him of burglary of a habitation.

In two issues, Warren argues that his sentence was excessive and

disproportionate to the crime he committed and that the evidence was insufficient

to support his enhanced sentence. We will affirm.
      1
       See Tex. R. App. P. 47.4.
                        II. PROCEDURAL BACKGROUND2

      After the jury found Warren guilty of burglary of a habitation, the judge

ordered a pre-sentence investigation. At the sentencing hearing, the following

exchange took place:

      THE COURT: On the habitual offender notice in this case, have you
      had a chance to speak with your lawyer about the prior offenses—

      [WARREN]: Yes.

      THE COURT: —they’re saying you’re convicted of?          Are those
      allegations true or not true?

      [WARREN]: True.

      THE COURT:        Anybody forcing you to plead true on those
      allegations?

      [WARREN]: No.

      THE COURT: And that’s a free and voluntary plea?

      [WARREN]: Yes, sir.

      THE COURT: Okay. All right. Does the State have anything else
      for sentencing?

      [THE STATE]: Yes. State would ask that you take judicial notice of
      the PSI so that it become[s] part of the court’s file. And the State
      would offer State’s Exhibits 33, 34, and 35, which are certified pen
      packets for all of the felony priors in this case.

      [DEFENSE ATTORNEY]: We don’t have an objection to that.

      THE COURT: All right. That’s granted.


      2
        Because Warren raises issues related only to the punishment phase of his
trial, we omit a detailed factual background concerning the burglary.

                                       2
After hearing the evidence and the arguments of counsel, the trial court

sentenced Warren to thirty-five years’ confinement. Warren now appeals.

    III. WAIVER OF EXCESSIVE AND DISPROPORTIONATE SENTENCE COMPLAINT

      In his first issue, Warren argues that his thirty-five-year sentence was

excessive and disproportionate to the offense for which he was convicted.

      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); Lovill v. State, 319 S.W.3d 687,

691–92 (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). A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.

2010) (op. on reh’g).

      Warren did not raise the issue of the alleged excessiveness or

disproportionality of his sentence at trial or in a motion for new trial. He

nonetheless argues that we should address his complaint on appeal because the

disproportionality and excessiveness of the sentence violates the Eighth

Amendment to the United States Constitution; therefore, he contends it is an

illegal sentence and is void. We have held on numerous occasions, however,

                                        3
that this type of claim must be preserved at the trial court level. See Acosta v.

State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.); Cisneros v.

State, No. 02-06-00103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort Worth May

23, 2007, pet. ref’d) (mem. op., not designated for publication) (collecting cases).

Because Warren did not raise his complaint in the trial court, the complaint is

forfeited.3 We overrule Warren’s first issue.

               IV. SUFFICIENT EVIDENCE TO SUPPORT ENHANCEMENT

      In his second issue, Warren argues that the trial court improperly admitted

into evidence the three pen packets offered by the State to prove his prior

convictions and that, consequently, insufficient evidence exists to support the

enhancement of his sentence.

      To establish a prior conviction for sentence enhancement purposes, the

State must prove beyond a reasonable doubt that the prior conviction exists and

that the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919,

921 (Tex. Crim. App. 2007).       The State may prove these elements by, for

example, introducing multiple documents that, when read together, contain

“sufficient information to establish both the existence of a prior conviction and the

      3
        Even if we were to reach the merits of Warren’s complaint, his sentence is
well within the relevant statutory range. See Tex. Penal Code Ann. § 12.42(d)
(providing for punishment of twenty-five to ninety-nine years’ or life imprisonment
for repeat and habitual felony offenders) (West Supp. 2012). Generally,
punishment imposed within the statutory range is not subject to a challenge for
excessiveness. Means v. State, 347 S.W.3d 873, 875 (Tex. App.—Fort Worth
2011, no pet.); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009,
pet. ref’d).

                                         4
defendant’s identity as the person convicted.” Id. at 921–22. Generally, a plea of

true to an enhancement paragraph relieves the State of its burden to prove a

prior conviction alleged for enhancement and forfeits the defendant’s right to

appeal the insufficiency of the evidence to prove the prior conviction unless the

record affirmatively reflects that the enhancement is itself improper. Ex parte

Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006); see Wilson v. State, 671

S.W.2d 524, 525 (Tex. Crim. App. 1984); Harvey v. State, 611 S.W.2d 108, 111

(Tex. Crim. App.) (op. on reh’g), cert. denied, 454 U.S. 840 (1981); Lugo v. State,

299 S.W.3d 445, 455 (Tex. App.—Fort Worth 2009, pet. ref’d).

      Here, the record affirmatively reflects that Warren pleaded “true” to the

enhancement paragraph, and he does not complain, nor does the record reflect,

that the enhancement itself was improper. See Ex parte Rich, 194 S.W.3d at

513; see also Wilson, 671 S.W.2d at 525; Harvey, 611 S.W.2d at 111; Lugo, 299

S.W.3d at 455. Moreover, even if Warren had not forfeited his right to appeal the

sufficiency of the enhancement evidence, Warren contends that the pen packets

were not properly in evidence because the trial court used the word “granted”

instead of “admitted” when the State offered them in evidence, but the trial court

treated the pen packets as admitted evidence and Warren did not object. As

Warren concedes on appeal, we may therefore consider this evidence in support

of the enhancement allegations. See Pitts v. State, 916 S.W.2d 507, 509 (Tex.

Crim. App. 1996) (considering written stipulations not admitted in evidence

because trial court treated them as admitted and appellant did not object); Killion

                                        5
v. State, 503 S.W.2d 765, 766 (Tex. Crim. App. 1973) (same).           For these

reasons, we overrule Warren’s second issue.

                                 V. CONCLUSION

      Having overruled Warren’s two issues, we affirm the trial court’s judgment.




                                                        SUE WALKER
                                                        JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. filed a concurring and dissenting opinion.

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

DELIVERED: November 8, 2012




                                        6
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00164-CR


JAMES WENDELL WARREN                                           APPELLANT

                                     V.

THE STATE OF TEXAS                                                   STATE


                                  ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                  ----------

   CONCURRING AND DISSENTING MEMORANDUM OPINION1

                                  ----------

     For the reasons stated in my concurrence to the majority opinion in

Laboriel–Guity v. State2 and in my concurring and dissenting opinions to the

majority opinions in Means v. State3 and Kim v. State,4 I dissent from the

     1
      See Tex. R. App. P. 47.4.
     2
      336 S.W.3d 754, 757–59 (Tex. App.—Fort Worth 2011, pet. ref’d)
(Dauphinot, J., concurring).
     3
      347 S.W.3d 873, 875–76 (Tex. App.—Fort Worth 2011, no pet.)
(Dauphinot, J., concurring and dissenting).
majority’s holding that Appellant forfeited his Eighth Amendment complaint by

failing to raise it in the trial court. I join the alternate holding that the sentence

imposed did not violate the Eighth Amendment.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE


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

DELIVERED: November 8, 2012




      4
      283 S.W.3d 473, 476–79 (Tex. App.—Fort Worth 2009, pet. ref’d)
(Dauphinot, J., concurring and dissenting).


                                          2
