Rene Longoria v. State ( 2010 )

NO. 07-09-0196-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 25, 2010
______________________________
RENE LONGORIA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-419,544; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Rene Longoria appeals his conviction for aggravated robbery, a felony of
the first degree. He contends that the trial court erred in permitting the enhancement of
his sentence via the use of a purported state jail felony. We affirm the judgment.1
1
Appellant describes his issue as questioning the trial court’s decision to deny his motion to strike
the enhancement pleading. We find no written motion to strike in the clerk=s record. However, an oral
objection Ato the enhancement notice@ was uttered at trial. We construe this objection to be the motion
involved.
In 2004, appellant, a juvenile at the time, was adjudicated as having engaged in
delinquent conduct and was committed to the Texas Youth Commission. The conduct
consisted of participating in organized criminal activity involving the burglary of a vehicle.
Furthermore, a conviction for engaging in it allegedly constituted a state jail felony. Such
a felony may not be used to enhance the punishment applicable to a subsequent felony.
TEX. PENAL CODE ANN. §12.42(e) (Vernon Supp. 2009); Fortier v. State, 105 S.W.3d 697,
701 (Tex. App.–Amarillo 2003, pet. ref=d). Yet, appellant believes such happened here.
Whether that is true is not something we address for the complaint was not preserved.
Appellant’s objection at trial was two-fold. First, he stated that he was not
afforded proper notice of the State’s intent to use the prior adjudication for enhancement
purposes. Then he averred that Ait=s not at all certain that the conviction which the State
desires to introduce to use for the purpose of enhancement met the proper requisites of
Chapter 51 of the Family Code, and that it - - I don=t believe that it had the proper findings
as required by the Family Code since it was a juvenile conviction to be used in a
subsequent 1st degree felony prosecution.@ He then ended his objection by saying, “[s]o
on those grounds, Judge, we would object to the inclusion of any enhancement in the
punishment stage . . . .”2 As can be seen, none of those utterances mention the purported
inability to use a state jail felony for purposes of enhancing a subsequent felony.
Instead, they focused on the supposed lack of prior notice or the status of the prior
conviction, if any, as being one involving a juvenile. Consequently, the substance of his
objection at trial fails to comport with that asserted on appeal; this, in turn, means that the
2
In later referring to the objections during trial, he characterized them as “objections to the improper or
untimely notice thereof.”
2
matter was not preserved. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)
(requiring the substance of the objection at trial to comport with that on appeal; otherwise
the matter is waived); see Harris v. State, 204 S.W.3d 19, 27 (Tex. App.–Houston [14th
Dist.] 2006, pet. ref=d) (stating that one may fail to preserve a complaint involving the
enhancement of his punishment by failing to object); Brown v. State, No. 02-08-037-CR,
2009 Tex. App. LEXIS 2664 at *2-3 (Tex. App.–Fort Worth April 9, 2009, no pet.) (not
designated for publication) (stating the same); Cody v. State, No. 05-06-01222-CR, 2007
Tex. App. LEXIS 2764 at 8-9 (Tex. App.–Dallas April 11, 2007, pet. ref=d) (not designated
for publication) (stating the same).3
Accordingly, we overrule appellant=s issue and affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.
3
Aggravated robbery is a felony of the first degree and carries a punishment of life or any term of
not more than 99 years or less than five years. TEX. PENAL CODE ANN. '12.32(a) (Vernon Supp. 2009).
Here, appellant was sentenced to fifty years imprisonment. Because the sentence fell within the lawful
range, it cannot be said to be an illegal one. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App.
2003) (stating that a sentence that is outside the maximum or minimum range of punishment is illegal,
which relieves one from uttering a contemporaneous objection to the sentence). Thus, appellant was
obligated to preserve his complaint by contemporaneously objecting and informing the trial court of all
grounds upon which he intends to rely.
3