                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00286-CR


WALTER GARRETT LINEBERGER                                           APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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      Appellant Walter Garrett Lineberger appeals the revocation of his deferred

adjudication community supervision and subsequent punishment for burglary.

      After a grand jury indicted Lineberger in April 2010 for burglary of a

habitation, the State filed a notice of intent to seek a deadly weapon finding.

Pursuant to a plea bargain, Lineberger pleaded guilty in exchange for five years’

deferred adjudication community supervision and a $1,000 fine, among other
      1
       See Tex. R. App. P. 47.4.
conditions, including a plea in bar of four other pending criminal cases, without

objecting to the deadly weapon finding.

      In March 2012, the State filed its first amended second petition to proceed

to adjudication. After Lineberger entered an open plea of ―true but‖ to violating a

condition of his deferred adjudication community supervision, the trial court

adjudicated him guilty of burglary of a habitation, included the deadly weapon

finding, and sentenced him to eight years’ confinement.2 This appeal followed.

      In his two points, Lineberger claims that the trial court erred by not sua

sponte ignoring the State’s deadly weapon notice because that allegation was

not returned by the grand jury and, alternatively, that he received ineffective

assistance of counsel when defense counsel failed to object to the State’s deadly

weapon notice.

      We note initially that Lineberger failed to preserve his deadly weapon

complaint for our review. See Tex. R. App. P. 33.1(a); see also Clark v. State,

365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (―The [trial] court needs to be

presented with and have the chance to rule on the specific constitutional

objection because it can have such heavy implications on appeal.‖). Nothing in

the record reflects that Lineberger ever objected to the inclusion of the deadly

weapon finding. See Tex. R. App. P. 33.1; see also Speth v. State, 6 S.W.3d

530, 534–35 (Tex. Crim. App. 1999) (observing that by entering into a contractual

      2
       The State’s original plea offer on revocation was for fifteen years’
confinement.


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relationship in a plea bargain without objection, ―a defendant affirmatively waives

any rights encroached upon by the terms of the contract‖), cert. denied, 529 U.S.

1088 (2000).

      Further, although a defendant is entitled to written notice that the State will

seek an affirmative finding that a deadly weapon was used in the commission of

the charged crime, ―[s]uch notice need not be contained in the indictment under

which the defendant is ultimately tried.‖3 Brooks v. State, 847 S.W.2d 247, 248

(Tex. Crim. App. 1993) (stating that the defendant is simply entitled to notice in

some form that the use of a deadly weapon will be a fact issue at the time of

prosecution). Therefore, while Lineberger complains in his second point that he

received ineffective assistance of counsel when counsel failed to object to the

deadly weapon notice as not having originated with the grand jury, had the


      3
         Although Lineberger argues that Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428 (2002), stands for the proposition that a defendant facing criminal charges
is entitled to a grand jury determination of any fact on which the legislature has
conditioned an increase in the defendant’s maximum punishment, here, there
was no change in the punishment range of two to twenty years and a fine not to
exceed $10,000. See Tex. Penal Code Ann. § 30.02(c)(2) (West 2011) (stating
that burglary is a second-degree felony if committed in a habitation); see also id.
§ 12.33 (West 2011) (stating that an individual adjudged guilty of a second-
degree felony shall be punished by imprisonment for any term of not more than
twenty years or less than two years and may also be punished by a fine not to
exceed $10,000); Williams v. State, 889 S.W.2d 687, 690 (Tex. App.—Fort Worth
1994, no pet.) (―An affirmative deadly weapon finding does not affect the
assessment of punishment. Instead, such a finding only affects a defendant’s
parole eligibility.‖). Further, Ring is inapposite, as it pertains to jury trial findings,
not grand jury findings. Cf. 536 U.S. at 588–89, 122 S. Ct. at 2432 (stating that
criminal defendants are entitled a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment).


                                            3
objection been made, the trial court would have properly overruled it. See id.

And counsel is not required to make a futile objection.4 See Mooney v. State,

817 S.W.2d 693, 698 (Tex. Crim. App. 1991); Diaz v. State, 380 S.W.3d 309, 312

(Tex. App.—Fort Worth 2012, pet. ref’d).

      We overrule both of Lineberger’s points and affirm the trial court’s

judgment.


                                                PER CURIAM

PANEL: MCCOY and DAUPHINOT, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

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

DELIVERED: April 18, 2013




      4
       Because Lineberger waived having the revocation hearing recorded, he
has otherwise presented us with nothing to review. Cf. Menefield v. State, 363
S.W.3d 591, 592 (Tex. Crim. App. 2012) (requiring an ineffective assistance
claim to be ―firmly founded in the record‖).


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