Affirmed and Memorandum Opinion filed February 12, 2013.

In The

Fourteenth Court of Appeals 

NO. 14-11-00982-CR

JACOBY DARNELL HALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1318666

M E M O R A N D U M O P I N I O N

A jury convicted appellant Jacoby Darnell Hall of capital murder, and the 

trial court assessed automatic punishment of life imprisonment without parole. See 

Tex. Code Crim. Proc. Ann. art. 37.071 § 1 (Vernon Supp. 2011). We affirm.
2

BACKGROUND

The appellant has not challenged the sufficiency of the evidence supporting 

his conviction; therefore, we recite only those facts necessary to the disposition of 

this appeal.

In August 2008, Varn Butler (a/k/a “Hop”) was paid approximately $1,800 

for 1,500 Xanax pills. He took the money but never produced the pills. The 

appellant was a part of a group that spent several days searching for Butler in an 

attempt to retrieve the $1,800. The group tracked down people who knew Butler 

and looked for him at several of his known hangouts.

On August 16, 2008, the appellant and his cousin, Reginald Price, broke into 

Marcus Smith’s house by kicking in the door. The appellant was carrying a 

revolver, and Price was carrying a semiautomatic pistol. The appellant forced 

Smith to call the complainant, William Jones (a/k/a/ “Boo”), to invite him to 

Smith’s house to smoke marijuana. The appellant and Price believed the 

complainant had information on where to find Butler. When the complainant 

arrived, the appellant and Price forced him to sit next to Smith while he was 

interrogated at gunpoint about Butler’s whereabouts. Charles Patterson, a 

neighborhood handyman, knocked on the front door around this time; the appellant 

and Price forced him to stand in a corner of the room while Smith and the 

complainant were being questioned.

When Price was distracted, the complainant jumped up and tried to wrestle 

his gun away. After a short fight, the appellant and Price both shot the 

complainant. The appellant and Price took cell phones and identification from the 
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complainant, Smith, and Patterson before fleeing. The complainant died on the 

way to the hospital of multiple gunshot wounds.

The appellant was indicted for the intentional killing of Jones while in the 

course of committing several different violations of the Texas Penal Code:

burglary or attempted burglary of a building owned by Smith;

1

kidnapping or attempted kidnapping of Jones;2

kidnapping or attempted kidnapping of Smith; 3

kidnapping or attempted kidnapping of Patterson; 4

robbery or attempted robbery of Jones;5

robbery or attempted robbery of Smith; 6and

robbery or attempted robbery of Patterson7

A jury found the appellant guilty of capital murder, and the trial court assessed the 

mandatory sentence of life imprisonment without parole.

The appellant raises six issues on appeal: (1) The amended indictment failed 

to provide adequate notice and protect the appellant from double jeopardy; (2) the 

jury charge violated the appellant’s constitutional and statutory rights to a 

unanimous verdict; (3) the jury charge included theories of the crime unsupported 

 

1

See Tex. Penal Code Ann. § 30.02 (Vernon 2011).

2

See Tex. Penal Code Ann. § 20.03 (Vernon 2011).

3

See id.

4

See id.

5

See Tex. Penal Code Ann. § 29.02 (Vernon 2011).

6

See id.

7

See id.
4

by the evidence; (4) automatic punishment of life imprisonment without parole 

constitutes “cruel and unusual punishment” that violates the Eighth Amendment of 

the U.S. Constitution; (5) automatic punishment of life imprisonment without 

parole constitutes “cruel or unusual punishment” that violates Article I, section 13 

of the Texas Constitution; and (6) automatic punishment of life imprisonment 

without parole is a violation of the separation of powers set out in Article 2, section 

1 of the Texas Constitution.

ANALYSIS

I. Waiver

The Texas Rules of Appellate Procedure require a party to preserve error for 

appellate review by demonstrating the error on the record. Tex. R. App. P. 33.1(a); 

Clark v. State, 305 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 2010), 

aff’d, 365 S.W.3d 333 (Tex. Crim. App. 2012). The party must make the 

complaint in a timely manner and state the grounds for the ruling that the 

complaining party seeks from the trial court with sufficient specificity to make the 

trial court aware of the complaint, unless the specific grounds were apparent from 

the context. Tex. R. App. P. 33.1(a)(1)(A). In raising the complaint on appeal, the

party must ensure the point of error is the same as the complaint or objection made 

during trial. Clark, 305 S.W.3d at 354. Even constitutional errors can be waived if 

a party fails to properly object to the errors at trial. Id. at 355. A challenge to the 

constitutionality of a statute may not be raised for the first time on appeal. 

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial challenges); 

Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (as-applied 

challenges). Therefore, if a party’s objection at trial does not correspond with its 

issue on appeal, the party has waived that issue. Clark, 305 S.W.3d at 354. 
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Here, the appellant argues that the issues raised on appeal were preserved in 

the trial court by his motion to quash the indictment and his objection to the jury 

charge.

In relevant part, the appellant’s motion to quash provides:

The [appellant’s] right to have his guilt determined by a unanimous 

verdict and have a fundamentally fair trial as provided by the due 

process clause of the U.S. Constitution is violated by the Texas rule 

allowing a general verdict without requiring jurors to agree on the 

manner the alleged crime was committed.

* * *

Under the present indictment there are no less than 15 ways the 

[appellant] might be found guilty of Capital Murder. It is possible for 

the jury to return a general verdict of guilt without any two jurors 

agreeing to the manner in which he could be found guilty.

The defense counsel made a similar argument when he objected to the jury charge:

I do have one objection, Judge. I would ask that the State be required 

to elect a specific paragraph in the indictment of one of the 

enumerated three felonies, whether it’s burglary of a building, 

kidnapping[,] or robbery, so that the — my client gets a fair trial and 

there is no due process violation of his right to unanimous verdict 

from the Jury.

I think the way the Jury charge is, is confusing, it’s misleading and the 

State — not necessary for them to have three enumerated felonies in 

this case, Your Honor.

The appellant offers no other vehicle for preservation beyond his motion to quash 

and his charge objection. Neither makes any mention of inadequate notice or 

double jeopardy, the jury charge’s inclusion of theories unsupported by the 

evidence, cruel and unusual punishment under the United States Constitution, cruel 
6

or unusual punishment under the Texas Constitution, or a violation of the 

separation of powers.8 Therefore, the appellant has waived these arguments.

We overrule the appellant’s first, third, fourth, fifth, and sixth issue.

II. Unanimity

In his second issue, the appellant argues that, “The jury charge should have 

required the jury to be unanimous as to a theory of Capital Murder, with multiple 

verdict forms, if necessary.” According to the appellant, the trial court violated his 

constitutional and statutory rights to a unanimous verdict by overruling his request 

that the State elect which underlying felony it would rely on to establish capital 

murder. Price raised the same argument in his separate appeal, which was rejected. 

See Price v. State, No. 14-11-00122-CR, 2012 WL 3292960, at *7 (Tex. App.—

Houston [14th Dist.] Aug. 14, 2012, pet. ref’d) (mem. op., not designated for 

publication). We see no basis for reaching a different conclusion here.

It is not a violation of the defendant’s right to a unanimous jury for the trial 

court to submit disjunctively all alternative theories of capital murder contained 

within section 19.03, whether they are found in the same or different subsections, 

so long as the same victim is alleged for the predicate murder. Gamboa v. State, 

296 S.W.3d 574, 584 (Tex. Crim. App. 2009). Nothing prohibits a single capital 

murder from containing alternative underlying offenses that are the same statutory 

offense but with different victims or different underlying methods of commission, 

so long as the same victim is alleged with respect to the predicate murder. Davis v. 

 

8

This court has rejected the contention that life imprisonment without parole for an adult 

defendant violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the 

United States Constitution, the Cruel or Unusual Punishment Clause of the Texas Constitution, 

and the Separation of Powers Section of the Texas Constitution. See Wilkerson v. State, 347 

S.W.3d 720, 723, 725 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Battle v. State, 348 

S.W.3d 29, 32 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
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State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010). Accordingly, the trial court 

did not violate the appellant’s right to a unanimous verdict by failing to order the 

State to elect a single underlying felony upon which to base its capital murder case.

We overrule the appellant’s second issue.

CONCLUSION

Having overruled all of the appellant’s issues on appeal, we affirm the 

judgment of the trial court.

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).