Bret Alan Avery v. State ( 2010 )

NO. 07-09-00262-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
AUGUST 6, 2010
BRET ALAN AVERY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 19,996-C; HONORABLE ANA ESTEVEZ, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Bret Alan Avery, appeals his conviction by jury for the offense of
possession of a controlled substance in a drug-free zone, 1 and sentence, enhanced by
final conviction of a prior felony, 2 of seventeen years incarceration in the Institutional
Division of the Texas Department of Criminal Justice. We affirm.
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.115(a), (b), 481.134 (Vernon
2010).
2
See TEX. PEN. CODE ANN. § 12.42(a)(3) (Vernon Supp. 2009).
Appellant’s sole issue on appeal contends that the final felony conviction used to
enhance his sentence was void and, therefore, its use was precluded to enhance his
punishment. As such, we will limit our discussion of the facts to those relevant to the
issue raised by appellant.
Following the jury’s verdict finding appellant guilty of possession of a controlled
substance in a drug-free zone, the case proceeded to punishment. Appellant pled true
to the allegation of the prior final felony conviction contained in the indictment. The
State introduced a 2006 judgment convicting appellant of possession of a controlled
substance with intent to deliver. This judgment indicates that the offense for which
appellant was convicted was a first-degree felony, yet it also indicates that he was
sentenced to serve two years incarceration in the Institutional Division of the Texas
Department of Criminal Justice. When this judgment was offered into evidence,
appellant affirmatively stated that he had “no objection.”
On appeal, appellant contends that the two year sentence in the 2006 judgment
falls below the minimum sentence allowed for a first-degree felony and, therefore, is an
illegal sentence that makes the entire judgment void and unavailable to enhance his
present conviction. See TEX. PENAL CODE ANN. § 12.32(a) (Vernon Supp. 2009)
(punishment range for first-degree felony is five to ninety-nine years, or life). Appellant
correctly contends that “It is now axiomatic that the punishment assessed must always
be within the minimum and maximum fixed by law.” Wilson v. State, 677 S.W.2d 518,
524 (Tex.Crim.App. 1984). The only authority cited by appellant in support of his
position is Wilson.
2
However, by failing to object to the alleged infirmity of the prior conviction used to
enhance the sentence at the time of trial, appellant has waived the issue.
The failure to object at trial to the introduction of proof of a[n] allegedly
infirm prior conviction precludes a defendant from thereafter attacking a
conviction that utilized the prior conviction. If an objection is timely lodged
on proper grounds, the trial court can finally determine, at trial, whether
the prior conviction was permissibly obtained and whether it is admissible
as evidence.
Hill v. State, 633 S.W.2d 520, 525 (Tex.Crim.App. 1981); see also Spivey v. State, No.
05-09-00300-CR, 2010 Tex.App. LEXIS 3133, at *14-*15 (Tex.App.--Dallas Apr. 29,
2010, no pet. h.) (“Failure to object to the admission of prior convictions waives the right
to collaterally attack the conviction on appeal.”). While the sentence imposed in Wilson
was reversed because it was enhanced by an illegal sentence that was less than the
minimum allowed by statute, the appellant in Wilson raised this issue in the trial court.
See Wilson, 677 S.W.2d at 520. The duty to preserve an appellate issue regarding the
validity of a prior conviction used to enhance a present sentence has continued to be
upheld by the Texas Court of Criminal Appeals. See Ex parte Dietzman, 851 S.W.2d
304, 306 (Tex.Crim.App. 1993) (prior conviction found to have been void “would not be
available to enhance Applicant’s punishment provided the error was raised in the trial
court”); Fullbright v. State, 818 S.W.2d 808, 809 (Tex.Crim.App. 1991) (objection by
defendant at trial preserved appellate complaint of void enhancement conviction).
3
Because appellant’s sole issue was not raised in the trial court, the issue has
been waived and, therefore, presents nothing for our review. See Hill, 633 S.W.2d at
525. Consequently, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
4