COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00520-CR

CLIFTON LEE WESLEY A/K/A 

CLIFTON L. WESLEY

APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Clifton Lee Wesley a/k/a Clifton L. Wesley appeals from the trial 

court’s judgment convicting him of first degree felony murder and sentencing him 

to forty-five years’ confinement in the Institutional Division of the Texas 

Department of Criminal Justice. We affirm.

 1

See Tex. R. App. P. 47.4.
2

Background Facts

Appellant met the victim, Preston Hunt, and Hunt’s girlfriend, Tamela 

Robinson, in September 2011, at the apartment complex where Hunt and 

Robinson lived. Appellant returned to the apartments the next day, knocked on 

Hunt’s door and entered the apartment. Appellant, Hunt, and Robinson smoked 

crack cocaine that Appellant had brought with him. When they ran out of drugs, 

Hunt called a drug dealer. The dealer arrived at the apartment, but refused to 

sell them drugs because he claimed that Appellant had previously paid with a 

counterfeit bill and owed him money.

The next night, Appellant returned to Hunt’s apartment. Hunt again called 

the drug dealer. Appellant gave Hunt twenty dollars to purchase drugs. Hunt 

met with the drug dealer downstairs from the apartment and was able to 

purchase a “small amount” of crack cocaine, which the three shared. Appellant 

left the apartment later that evening.

Around 7:00 am, Robinson left the apartment to go to work. Hunt was 

lying in bed. Robinson returned from work around 5:30 that night and found Hunt 

lying on the floor of the bedroom, dead. Hunt had been stabbed in the back with 

a kitchen knife and the blade had broken off and remained lodged in his back. 

The police picked up Appellant later that night after Robinson identified him as a 

suspect. He was later charged with Hunt’s murder.

While in jail, Appellant had a conversation with a fellow inmate, Victor 

Linzy. Linzy testified that Appellant told him that he had been doing drugs with 
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Hunt and that Appellant had believed that Hunt had been shorting Appellant of 

his share of the crack cocaine. Appellant said he decided “to get” Hunt, “grabbed 

a knife, stuck it in him, and the handle broke off.”

Appellant was charged in a two count indictment with capital murder and 

murder, but the State waived the first count of the indictment charging capital 

murder and proceeded to trial on the murder count only. In June 2012, at a 

status conference hearing before the trial court, Appellant elected to have the 

issue of punishment submitted to the jury. In September 2012, prior to voir dire, 

Appellant filed a notice requesting that the trial court decide the issue of 

punishment instead of the jury. Appellant’s attorney stated on record that the 

decision to have the judge assess punishment was a strategic move and 

Appellant confirmed that decision.

The jury found Appellant guilty of murder. At the punishment hearing, 

Appellant asked the court to “consider a midrange of punishment under a range

provided by law.” The trial court found Appellant to be a habitual offender and 

set punishment at forty-five years’ confinement. This appeal followed.

Discussion

I. Election

In his first issue, Appellant argues that the trial court erred by not 

submitting the issue of punishment to the jury. In all criminal cases, the trial 

judge is responsible for assessing punishment, unless “the defendant so elects in 

writing before the commencement of the voir dire examination of the jury panel” 
4

to have the jury assess punishment. Tex. Code Crim. Proc. Ann. art. 37.07 

§ 2(b) (West Supp. 2012). “If a finding of guilty is returned, the defendant may, 

with the consent of the attorney for the state, change his election of one who 

assesses the punishment.” Id.

Appellant first elected to submit the issue of punishment to the jury. He 

later, but still prior to voir dire, signed and filed an election to have the judge set 

punishment. Appellant argues that his second election is void “because 

changing an election for the jury to decide punishment can only be made after 

the jury has found a defendant guilty.”

Appellant made no complaint to the trial court when the trial judge set his 

punishment.2 See Hackey v. State, 500 S.W.2d 520, 521 (Tex. Crim. App. 1973)

(holding that absent an objection, appellate court will presume that defendant 

agreed that trial judge should assess punishment). In fact, Appellant made it 

quite clear on the record that his decision to change his election was a strategic 

move and that he and his attorney had “had that discussion at some length.” 

Further, the court of criminal appeals has held that when a defendant has made 

two ostensible elections, the second “written request to have the judge assess 

punishment had the effect of withdrawing any request there may have been for 

the jury to consider the issue of probation and constituted a waiver thereof.” 

Ortegon v. State, 459 S.W.2d 646, 648 (Tex. Crim. App. 1970); see Holts v. 

 2

Appellant does not argue that he did not have the opportunity to object to 

his punishment in the trial court.
5

State, No. 03-01-00580-CR, 2002 WL 989538, *4 (Tex. App.—Austin May 16, 

2002, pet. ref’d) (not designated for publication) (holding that when appellant filed 

two pretrial punishment elections, appellant’s announcement prior to jury 

selection that he wished to have the jury assess punishment “designated which 

of the two written punishment elections appellant wished to be operative”). 

“Appellant cannot now be heard to complain because the court granted him what 

he asked for.” Benson v. State, 496 S.W.2d 68, 70 (Tex. Crim. App. 1973)

(holding that any error in allowing appellant to change his election after trial 

commenced “was against the State, and not the appellant”); see Lucas v. State, 

No. 05-90-01600-CR, 1992 WL 35807, at *1 (Tex. App.—Dallas Feb. 24, 1992, 

no pet.) (holding that appellant could not for the first time on appeal challenge his 

conviction on the ground that he changed his election without objection by the 

State).

By failing to object at trial to the trial judge assessing his punishment, 

Appellant waived any complaint regarding his election. Holts, 2002 WL 989538, 

at *3 (“Having asked the court to give effect to his election for jury punishment, 

appellant is in no position to argue for the first time on appeal that this election 

was void and that the only operative election was for the judge to assess 

punishment.”). We overrule Appellant’s first issue.

II. Punishment 

In his second issue, Appellant argues that the sentence of forty-five years 

is an excessive and disproportionate punishment.
6

The trial court, considering Appellant’s status as a habitual offender,

sentenced Appellant to forty-five years’ confinement in a correctional institution. 

Appellant made no objection to his sentence in the trial court, either at the time of 

sentencing or in any motion afterwards. To preserve a complaint for our review, 

a party must have presented to the trial court a timely request, objection, or 

motion that states the specific grounds for the desired ruling if they are not 

apparent from the context of the request, objection, or motion. Tex. R. App. P. 

33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Clay v. 

State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.). Further, the 

trial court must have ruled on the request, objection, or motion, either expressly 

or implicitly, or the complaining party must have objected to the trial court’s 

refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 

(Tex. Crim. App. 2011). A reviewing court should not address the merits of an 

issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 

473 (Tex. Crim. App. 2010) (op. on reh’g); Clay, 361 S.W.3d at 765. Further, 

Appellant concedes in his brief on appeal that his sentence was within the 

statutory range and that punishment imposed within the statutory range is 

generally not subject to challenge for excessiveness. See Kim v. State, 283 

S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Tex. Penal 

Code Ann. § 12.32(a) (West 2011) (setting punishment range from five years to 

ninety-nine years’ imprisonment). We overrule Appellant’s second issue.
7

Conclusion

Having overruled both of Appellant’s issues on appeal, we affirm the 

judgment of the trial court.

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: September 5, 2013