Jimmy Johnson v. State ( 2016 )

NUMBER 13-15-00420-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JIMMY JOHNSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of
Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Longoria
Appellant Jimmy Johnson challenges his conviction for felony driving while
intoxicated (“DWI”) by two issues. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)
(West, Westlaw through 2015 R.S.). We affirm.
I. BACKGROUND
The State alleged in the indictment that appellant operated a motor vehicle while
intoxicated in a public place in Nueces County on February 26, 2015. The State further
alleged that appellant had previously been convicted of two offenses “relating to the
operating of a motor vehicle while intoxicated.” See id. § 49.09(b)(2) (providing for the
third-degree felony offense of DWI if it is shown during trial that the defendant had been
twice convicted of an offense relating to operating a motor vehicle while intoxicated). The
indictment also alleged that appellant was a habitual offender because he had previously
been convicted of two felonies, and the second conviction occurred after the first became
final. See id. § 12.42(d) (providing for enhanced punishments for habitual offenders).
The jury returned a verdict of guilty, and the trial proceeded to the punishment
phase. The State proffered penitentiary packets for the offenses alleged in the
enhancement allegations and put on testimony to link appellant to those convictions. The
judge admitted the penitentiary packets into evidence. The jury found both enhancement
allegations to be true and assessed a sentence of seventy years’ imprisonment in the
Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
II. DISCUSSION
Appellant argues in his first issue that the State violated section 49.09(g) of the
penal code by using his 1994 misdemeanor conviction for DWI (“1994 Conviction”) in this
case as both a predicate offense and an enhancement allegation. See TEX. PENAL CODE
ANN. § 49.09(g) (West, Westlaw through 2015 R.S.). Appellant argues in his second
issue that the length of his sentence violates the constitutional prohibition on cruel and
unusual punishment. See U.S. CONST. amend. VIII.
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A. Improper Enhancement
Appellant asserts in his first issue that the State violated section 49.09(g) of the
Texas Penal Code by using his 1994 misdemeanor conviction as both a predicate offense
and as an enhancement allegation. Section 49.09(g) of the Texas Penal Code provides
that “[a] conviction may be used for purposes of enhancement under this section or
enhancement under Subchapter D, Chapter 12, but not under both this section and
Subchapter D.” TEX. PENAL CODE ANN. § 49.09(g). The 1994 Conviction is not one of the
habitual-offender allegations in the indictment in this case, but the indictment does allege
appellant’s 2008 conviction for felony DWI (“2008 Conviction”). 1 Appellant argues that
the State is essentially using the 1994 conviction as an enhancement allegation here
because the 1994 conviction was a predicate offense for the 2008 Conviction. The State
responds that appellant waived error by failing to raise this issue in the trial court. In the
alternative, the State argues that the sentence did not violate section 49.09(g).
We agree with the State that appellant did not preserve this issue. To preserve
error for appellate review, a party must make a specific and timely complaint to the trial
court and either obtain a ruling on it or object to the trial court’s failure to rule. TEX. R.
APP. P. 33.1(a). Generally, unpreserved error may not be raised for the first time on
appeal. Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014); Moore
v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012). Appellant’s argument during the
sentencing phase was that the State had not proven that appellant was the defendant
named in the penitentiary packets. Appellant never argued or objected that using the
1 The indictment reflects that appellant’s 1994 misdemeanor conviction occurred on December 7,
1994 in Cause No. 416230 in the County Court at Law No. 7 of Travis County. The 2008 conviction for
felony DWI occurred on August 24, 2001 in Cause No. 01-CCR-1804-A in the County Court at Law No. 1
of Cameron County.
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2008 Conviction as an enhancement allegation violated section 49.09(g) of the Texas
Penal Code. We hold that appellant has forfeited this issue by not raising it in the trial
court. See TEX. R. APP. P. 33.1(a); Harris v. State, 204 S.W.3d 19, 27 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref'd) (holding that a defendant who raised a substantively
similar issue on appeal failed to preserve error by not raising it in the trial court); see also
Cody v. State, No. 05-06-01222-CR, 2007 WL 1064328, at *3 (Tex. App.—Dallas Apr.
11, 2007, pet. ref'd) (mem. op., not designated for publication) (same). We overrule
appellant’s first issue.
B. Cruel and Unusual Punishment
By his second issue, appellant argues that his sentence of seventy years’
imprisonment violates the constitutional prohibition against cruel and unusual
punishment. See U.S. CONST. amend. VIII. The State responds that appellant waived
this issue by failing to object.
We agree with the State. Both the Texas Court of Criminal Appeals and this Court
have held that failure to lodge a specific objection to an allegedly disproportionate
sentence waives error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.
1996); Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet.
ref'd). Appellant admits that he did not object to the sentence, but argues that he had no
opportunity to do so. However, there is no indication in the record that appellant
attempted to object, and he did not file a motion for new trial raising this issue. See Kim
v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd) (holding that a
claim of disproportionate punishment that “was not raised at the time it was imposed or
in a motion for new trial” was waived). We conclude that appellant waived any error in
his sentence by failing to object when he had the opportunity to do so. See Rhoades,
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934 S.W.2d at 120; Kim, 283 S.W.3d at 475; Trevino, 174 S.W.3d at 927–28. We overrule
appellant’s second issue.
III. CONCLUSION
We affirm the judgment of the trial court.
Nora L. Longoria
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of July, 2016.
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