Objection to juvenile enhancement was not preserved
for appeal where respondent's objections at trial did not comport to that which
was asserted on appeal.[Longoria v. State](10-2-4)
On February 25, 2010, the Amarillo Court of Appeals
held that since the substance of respondent's objection to juvenile's state jail
felony enhancement focused on the lack of prior notice and failed to comport
with that asserted on appeal, the matter was not preserved.
10-2-4. Longoria v. State, MEMORANDUM, No.
07-09-0196-CR, 2010 WL 668535 (Tex.App.-Amarillo, 2/25/10).
Facts: 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. 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. refd). Yet, appellant believes
such happened here. Whether that is true is not something we address for the
complaint was not preserved.
Held: Affirmed
Memorandum Opinion: 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 its 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.... [FN2] 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 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. refd)
(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.
refd) (not designated for publication) (stating the same). [FN3]
FN2. In later referring to the objections during
trial, he characterized them as objections to the improper or untimely notice
thereof.
FN3. 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.
Conclusion: Accordingly, we overrule appellants
issue and affirm the judgment.