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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00082-CR

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OMAR I. LARA, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause No. F22-39437

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MEMORANDUM OPINION

A grand jury indicted Appellant Omar Lara for the offense of murder, for 

intentionally and knowingly causing the death of Juan Borrego by shooting him with 

a deadly weapon—namely, a firearm. Lara was fourteen years old at the time of the 

offense, and he was tried as an adult. Lara pleaded guilty to the offense charged, and 

he elected for the jury to assess punishment. After a hearing on punishment, the jury 

assessed punishment at forty years of confinement. Lara appealed, and in a single 
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issue, he argues that the jury instruction provided to the jury during sentencing which 

included statutory language about parole is unconstitutional. We affirm.

Appellant argues on appeal that the instruction on the law of parole that was 

included in the jury charge pursuant to section 4(a) of article 37.07 of the Code of 

Criminal Procedure is unconstitutional, and that it violates the separation of powers 

doctrine in the Texas Constitution, the due process clause of the Fourteenth 

Amendment, and the due process clause in the Texas Bill of Rights.

At the charge conference during the punishment phase, the defense counsel 

made an objection as follows:

My objection is the one I always make to page 3, the language about 

parole where it says that -- explains how parole works and then 

specifically tells them not to think about it, which, to me, is a useless 

endeavor. I object to that. I know what the statute says. I’m just giving 

my normal objection. 

The trial court overruled the objection.

To preserve an issue for appellate review, a party must lodge a timely 

objection and state the specific legal basis for the objection. Sartin v. State, 680 

S.W.3d 663, 667 (Tex. App.—Beaumont 2023, no pet.) (citing Tex. R. App. P. 

33.1(a)(1)). When an issue has not been preserved for appeal, an appellate court 

should not address the merits of the issue. Id. (citing Ford v. State, 305 S.W.3d 530, 

532 (Tex. Crim. App. 2009)). The Court of Criminal Appeals has explained,

To preserve a complaint for appellate review, an objection must state 

the grounds for the ruling sought with sufficient specificity to make the 
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trial court aware of the complaint. Tex. R. App. P. 33.1(a). The 

complaining party bears the responsibility of clearly conveying his 

particular complaint to the trial judge. See Pena [v. State], 285 S.W.3d 

[459,] 464 [(Tex. Crim. App. 2009)]. To avoid forfeiting a complaint 

on appeal, the party must “let the trial judge know what he wants, why 

he thinks he is entitled to it, and to do so clearly enough for the judge 

to understand him at a time when the judge is in the proper position to 

do something about it.” Id. (quoting Lankston v. State, 827 S.W.2d 907, 

909 (Tex. Crim. App. 1992)). This gives the trial judge and the 

opposing party an opportunity to correct the error. Id.

Mosley v. State, 666 S.W.3d 670, 676 (Tex. Crim. App. 2023). 

Almost all error, even constitutional error, must be preserved by objection or 

it is waived. See Hull v. State, 67 S.W.3d 215, 216-18 (Tex. Crim. App. 2002); 

Holland v. State, 802 S.W.2d 696, 700-01 (Tex. Crim. App. 1991); Briggs v. State, 

789 S.W.2d 918, 924 (Tex. Crim. App. 1990). The failure to object at trial may waive 

even constitutional errors. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 

2008). A defendant fails to preserve error when, as here, the contention urged on 

appeal does not match the complaint made in the trial court. Lovill v. State, 319 

S.W.3d 687, 691-92 (Tex. Crim. App. 2009). In other words, an objection stating 

one legal basis for an objection at trial may not be used to support a different legal 

theory on appeal. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 

2004).

In this case, Lara’s objection at the punishment hearing failed to sufficiently 

identify a legal basis for his objection to the jury charge, and it did not give the trial 

court enough information from which the trial court could determine whether there 
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was an appropriate remedy. See Sartin, 680 S.W.3d at 671-72. Lara’s objection in 

the trial court did not inform the trial court what he wanted, the legal basis for why 

he thought he was entitled to it, nor inform the trial court of his complaint with 

enough specificity to allow the trial court to understand his issue at a time when the 

trial court was in the position to do something about it. See id. at 672. Additionally, 

Lara’s objection at trial does not comport with his objection and argument on appeal. 

See Lovill, 319 S.W.3d at 691-92; Heidelberg, 144 S.W.3d at 537. We conclude Lara 

failed to preserve his argument for review on appeal. See Tex. R. App. P. 33.1; 

Lovill, 319 S.W.3d at 691-92; Hull, 67 S.W.3d at 216-18; Sartin, 680 S.W.3d at 669.

Even assuming the argument Appellant makes on appeal had been made 

during the trial and preserved for appeal, we also find Appellant’s argument without 

merit. The voters determined in 1989 to amend Article IV, Section 11(a) of the Texas 

Constitution to provide:

The Legislature shall by law establish a Board of Pardons and Paroles 

and shall require it to keep record of its actions and the reasons for its 

actions. The Legislature shall have authority to enact parole laws and 

laws that require or permit courts to inform juries about the effect of 

good conduct time and eligibility for parole or mandatory supervision 

on the period of incarceration served by a defendant convicted of a 

criminal offense.

Tex. Const. art. IV, § 11(a) (emphasis added); see also Luquis v. State, 72 S.W.3d 

355, 361 (Tex. Crim. App. 2002). Section 4(a) of article 37.07 provides, in relevant 

part, that the court shall charge the jury in writing as follows:
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“The length of time for which a defendant is imprisoned may be 

reduced by the award of parole.

“Under the law applicable in this case, if the defendant is sentenced to 

a term of imprisonment, the defendant will not become eligible for 

parole until the actual time served equals one-half of the sentence 

imposed or 30 years, whichever is less. If the defendant is sentenced to 

a term of less than four years, the defendant must serve at least two 

years before the defendant is eligible for parole. Eligibility for parole 

does not guarantee that parole will be granted.

“It cannot accurately be predicted how the parole law might be applied 

to this defendant if sentenced to a term of imprisonment, because the 

application of that law will depend on decisions made by parole 

authorities.

“You may consider the existence of the parole law. You are not to 

consider the manner in which the parole law may be applied to this 

particular defendant.”

Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). The Court of Criminal Appeals has 

held that a trial court does not err by giving the statutorily-required instruction set 

forth in section 4(a) of Article 37.07, and that an instruction under this section does 

not violate a defendant’s due process or due course of law rights. See Luquis, 72 

S.W.3d at 363-68. 

Here, the jury instruction on parole tracks the language in Article 37.07, 

section 4(a) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 

37.07, § 4(a). The jury assessed punishment at forty years’ imprisonment—about 

half the maximum sentence—and punishment in the middle of the allowable range 

does not support a conclusion that the jury attempted to apply the parole law to Lara. 

See Stewart v. State, 293 S.W.3d 853, 860 (Tex. App.—Texarkana 2009, pet. ref’d); 

see also Tex. Penal Code Ann. § 12.32(a) (first-degree felony is punishable by a 
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term for life or for any term of not more than 99 years or less than 5 years). We 

presume that the jury followed the court’s instructions, and Appellant has cited no 

evidence tending to show that the jury did not follow the trial court’s clear and 

explicit instructions regarding the law of parole. See Luquis, 72 S.W.3d at 368; Thrift 

v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).

We overrule Appellant’s issue, and we affirm the trial court’s judgment of 

conviction.

AFFIRMED.

 LEANNE JOHNSON

Justice

Submitted on August 23, 2024

Opinion Delivered August 28, 2024

Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.