Monte Eric Jordan A/K/A Jonathan Christopher McConell A/K/A Jonathan Chirs McConell A/K/A Chris McConell v. the State of Texas ( 2023 )

NUMBER 13-22-00302-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MONTE ERIC JORDAN A/K/A
JONATHAN CHRISTOPHER MCCONELL
A/K/A JONATHAN CHIRS MCCONELL
A/K/A CHRIS MCCONELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
OPINION
Before Justices Tijerina, Silva, and Peña
Opinion by Justice Tijerina
On July 13, 2023, this Court affirmed the conviction of capital murder of appellant
Monte Eric Jordan a/k/a Jonathan Christopher McConell a/k/a Jonathan Chirs McConell
a/k/a Chris McConell. See McConell v. State, No. 13-22-00302-CR, 2023 WL 4496734,
at *1 (Tex. App.—Corpus Christi–Edinburg July 13, 2023, no pet. h.). Appellant has now
filed a motion for rehearing requesting that we consider an argument he raises for the first
time. Appellant urges us to abandon the presumption “that Texas Courts would not make
a finding of structural error until the United States Supreme Court first found a matter to
be structural error,” and asks us “to review this case for structural error,” relying on Rios
v. State, 665 S.W.3d 467, 485–86 (Tex. Crim. App. 2022). We deny the motion, withdraw
our prior opinion and judgment, and substitute this opinion and judgment.1
A jury convicted appellant of capital murder, and the trial court sentenced him to
life imprisonment without parole. See TEX. PENAL CODE ANN. § 19.03; TEX. CODE CRIM.
PROC. ANN. art. 37.071. By his sole issue, appellant argues the trial court erred by “not
inform[ing] prospective [sic] jurors of the punishment under” § 12.31 of the Texas Penal
Code. See TEX. PENAL CODE ANN. § 12.31. We affirm as modified.
I. PERTINENT FACTS
On June 16, 2022, a jury convicted appellant of capital murder in the course of
committing or attempting to commit the offense of kidnapping, or in the course of
committing or attempting to commit the offense of retaliation, as charged in the indictment.
The trial court imposed a mandatory life sentence without parole. See TEX. CODE CRIM.
PROC. ANN. art. 37.071, § 1(a) (“If a defendant is found guilty in a capital felony case in
which the state does not seek the death penalty, the judge shall sentence the defendant
to life imprisonment or to life imprisonment without parole as required by [§] 12.31, Penal
Code.”).
1 Appellant also filed a motion for en banc reconsideration, which we dismiss as moot.
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During voir dire, the following transpired:
[The State]: In capital murder cases, right, if you find that Mr. Jordan
committed capital murder beyond a reasonable doubt,
there are only two outcomes: Life in prison without
parole or the death penalty. Right? In this case, the
State is not seeking the death penalty, right? So as far
as—that’s what I was trying to tell you—as far as the
death penalty goes, you will not have to worry about
that in this case.
....
[The State]: So when we get, I believe we will, when we get to that
stage, if he’s guilty of capital murder, there is no
punishment phase. Remember I told you, if you are
guilty of capital murder and you are over the age of 18,
there’s only two options. You get put the [sic] death or
you get sentenced to life in prison without parol[e]. We
have elected not to seek the death penalty in this case.
So that means if Mr. Jordan is convicted of capital
murder, there is no punishment for you to have to worry
about.
II. PRESERVATION OF ERROR
By his sole issue, appellant argues that the trial court committed structural error by
failing to inform prospective jurors that the State was not seeking the death penalty and
that the sentence of life imprisonment without parole was mandatory upon a conviction of
capital murder in accordance with § 12.31.
Section 12.31(b) provides that when the State does not seek the death penalty in
a capital felony trial, prospective jurors shall be informed that the State is not seeking the
death penalty and that a sentence of life imprisonment without parole is mandatory if the
defendant is convicted. See TEX. PENAL CODE ANN. § 12.31. The record reflects that the
trial court did not instruct the jurors pursuant to § 12.31. However, § 12.31(b) is a
“statutory right,” so any alleged error abrogating that statutory right is nonconstitutional
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error, and thus, not structural. See Murkledove v. State, 437 S.W.3d 17, 27 (Tex. App.—
Fort Worth 2014, pet. ref’d) (“The right protected by [§] 12.31(b) is the statutory right to
have the prospective jurors informed that the State is not seeking the death penalty and
that a sentence of life imprisonment without parole is mandatory upon conviction of the
capital offense.”); see also Murphy v. State, No. PD-0798-08, 2009 WL 3368693, at *5
(Tex. Crim. App. Oct. 21, 2009) (mem. op., not designated for publication) (“The trial
court’s error abrogated [§ 12.31’s] statutory right.”); Murphy v. State, No. 01-07-00174-
CR, 2008 WL 963047, at *11 (Tex. App.—Houston [1st Dist.] Apr. 10, 2008), aff’d, No.
PD-0798-08, 2009 WL 3368693 (Tex. Crim. App. Oct. 21, 2009) (“When only a statutory
violation is claimed, as [a § 12.31 violation] here, the error must be treated as non-
constitutional for the purpose of conducting a harm analysis.”); McCluer v. State, No. 14-
09-00058-CR, 2010 WL 1438957, at *9 (Tex. App.—Houston [14th Dist.] Apr. 13, 2010,
pet. ref’d) (finding a failure to fulfill the requirements of § 12.31 is “nonconstitutional
error”).
Similarly, this Court, as well as our sister courts, has held that a § 12.31
nonconstitutional error requires that a defendant lodge an objection in the trial court. See
Murkledove, 437 S.W.3d at 26–27 (complaint “that the trial court erred by not instructing
the potential jurors that a sentence of life without parole is mandatory upon a conviction
for a capital felony” was not preserved for appellate review where appellant “did not object
or request that the trial court give such an instruction”); Smith v. State, 420 S.W.3d 207,
214 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding the failure to request that
the trial court instruct the jury panel pursuant to § 12.31(b) forfeited an appellate
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complaint); Flowers v. State, 959 S.W.2d 644, 646 (Tex. App.—Houston [1st Dist.] 1996,
pet. ref’d) (“Appellant did not point out the [§ 12.31] omission to the trial court. He cannot
now argue for the first time on appeal that the omission was error.”); see also Ramirez v.
State, No. 13-10-00205-CR, 2012 WL 170996, at *10 (Tex. App.—Corpus Christi–
Edinburg Jan. 19, 2012, pet. ref’d) (mem. op., not designated for publication) (holding the
complaint that “the trial court failed to properly inform the jury panel during voir dire
regarding the mandatory punishment for capital murder” was not preserved when the
defendant “made no objections” in the trial court); Barradas v. State, No. 05-14-01271-
CR, 2015 WL 6157169, at *4 (Tex. App.—Dallas Oct. 20, 2015, no pet.) (mem. op., not
designated for publication) (“Barradas did not lodge her [§ 12.31] objection in the trial
court, and has waived this complaint for appeal.”); Anderson v. State, No. 01-94-00568-
CR, 1995 WL 717033, at *5 (Tex. App.—Houston [1st Dist.] Dec. 7, 1995, pet. ref’d)
(“Because appellant made no objection about the trial court’s failure to comply with
[§] 12.31(b), he preserved nothing for review.”); cf. Rios, 665 S.W.3d at 477 (explaining
that there are systemic rights, waivable-only rights, and forfeitable rights, and finding that
the “right to a jury trial is a waivable-only right,” which “can be argue[d] for the first time
on direct appeal”).
The record reflects that appellant did not object or request that the trial court
instruct the jurors pursuant to § 12.31. As a prerequisite for presenting a complaint for
appellate review, rule of appellate procedure 33.1(a) requires a timely objection with
sufficient specificity to make the trial court aware of the complaint.” See Murkledove, 437
S.W.3d at 26–27; see also Ramirez, 2012 WL 170996 (“Ramirez made no objections that
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the State misinformed the jury about the mandatory punishment. He has therefore
preserved nothing for our review.”). Because appellant made no objection in the trial court
and because we conclude that § 12.31 secures a “forfeitable” right rather than a “systemic
requirement,” see Rios, 665 S.W.3d at 476, appellant preserved nothing for our review.
Ramirez, 2012 WL 170996, at *10. Accordingly, we overrule appellant’s sole issue.
III. MODIFICATION OF JUDGMENT
The nunc pro tunc judgment for the conviction of capital murder does not include
the statute for the offense of Texas Penal Code 19.03. We modify the judgment to recite
the statute for offense: Texas Penal Code 19.03. See Bigley v. State, 865 S.W.2d 26, 27–
28 (Tex. Crim. App. 1993) (noting that we have the power to modify a judgment to speak
the truth when we are presented with the necessary information to do so).
IV. CONCLUSION
We affirm, as modified, the judgment of the trial court.
JAIME TIJERINA
Justice
Publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
28th day of September, 2023.
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