## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00304 - CR

DWAYNE HOLMES APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRICT CO URT NO. 2 OF TARRANT COUNTY

---------- 

### OPINION

---------- I. I NTRODUCTION Appellant Dwayne Holmes appeals his conviction for unauthorized use of a motor vehicle. In his sole point, Holmes argues that the trial court violated his due process and due course of law rights by enhancing his sentence from a state jail felony to a third degree felony by way of two non

- sequential prior state jail felony convictions. We will affirm.2 II. B ACKGROUND Police arrested Holmes after he was discovered operating a vehicle being used as a “bait car” by members of an auto theft task force. H olmes was charged with theft of an automobile and with unauthorized use of a motor vehicle.
The State’s indictment also contained a n enhancement notice based on two prior theft convictions. At trial, the jury was unable to reach a verdict on Holmes’s theft charge but unanimously convicted him of unauthorized use of a motor vehicle. During the punishment phase, Holmes pleaded true to the enhancement allegations and made no objections. His co nviction was enhanced from a state jail felony to a third degree felony, and the jury sentenced him to six years ’ confinement.
III. P RESERVATION OF E RROR In his sole point, Holmes argu es that the trial court erred by allowing his sentence to be enhanced under former p enal c ode section 12.42(a)(1), which enhanced a state jail felony to a third degree felony if the defendant ha d “previously been finally convicted of two state jail felonies.” 1 See Act of May 28, 1995, 74 th Leg., R.S., ch. 318, § 1, 1995 Te x. Gen. Laws 2734, 2735 (recodified 2011) (current version at Tex. Penal Code Ann. § 12.42 5(a) (West Supp. 201 2 ) )

. Holmes supports this contention by pointing out that the two prior theft

1 Former section 12.42(a)(1) applies to this case because it was in effect on the date of the offense. See Morris v. State , No. 11

- 10

- 00249

- CR, 2012 WL 424923, at *4 n.3 (Tex. App.

— Eastland Feb. 9, 2012, pet. ref’d) (mem. op., not designated for publication).3

convictions used to enhance his conviction to a third degree felo ny were entered on the same day, and therefore one was not subsequent to the other. Although Holmes admits that the enhancement statute does not contain a requirement that one of the prior convictions be subsequent to the other , he argues that the lack of

s uch a requirement allows the State to prosecute him for a third degree felony based on “extremely minor crimes” without the added protection of the convictions being sequential, thereby violating his right to due process under the federal constitution and due course of law under the state constitution

. We must first determine whether Holmes preserved his complaint for appellate review. See Tex. R. App. P. 33.1(a)(1). The c ourt of c riminal a ppeals has held that allegations of due process violations are su bject to the requirement of preservation by an objection or motion filed with the trial court. See Anderson v. State , 301 S.W.3d 276, 279

– 80 (Tex. Crim. App. 2009). Likewise, a challenge to the constitutionality of a statute is a forfeitable right and mu st be preserved in the trial court during or after trial. See Ibenyenwa v. State , 367 S.W.3d 420, 422 (Tex. App.

— Fort Worth 2012, pet. ref’d ) (op. on reh’g)

. Here, Holmes lodged no object ion to the court’s charge or sentence during the punishment phase o f the trial, nor did he raise this argument in a motion for new trial. Thus, h e asserts his due process challenge to the enhancem ent statute for the first time on appeal. Holmes cites Ex parte Rich , 194 S.W.3d 508 (Tex. Crim. App . 2006), in support of his argument that he may raise this issue on appeal despite not having objected at trial

. But Rich dealt with an appellant’s ability to claim for the first4

time on a writ of habeas corpus that his sentence was illegal based on an
im proper enhancement

. 194 S.W.3d at 510. By contrast, this case does not concern a writ of habeas corpus , and Holmes has not argued that his sentence was illegal ; Holmes is challenging the constitutionality of a statute on direct appeal

. Thus, Rich is inapposite

. We hold that Holmes forfeited t his argument for appellate review

. See
Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that a defendant may not raise a facial challenge to the constitutionality of a statute for the first time on appeal); Curry v. State , 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding that the consti tutionality of a statute as applied to the defendant must be raised in trial court to preserve error); see also Lacy v. State , Nos. 07

- 10

- 00408

- CR, 07

- 10

- 00409

- CR, 07

- 10

- 00410

- CR, 2011 WL 3240817, at *1 (Tex. App.

— Amarillo July 29, 2011, pet. ref’d) (mem. op., not designated for publication) (holding due process challenge to punishment enhancement was not preserved for appellate review because appellant lodged no objections during sentencing). Accordingly, w e overrule Holmes’s sole point

.5 IV. C ONCLUSION Having overruled Holmes’s sole point, we affirm the trial court’s judgment

.

BILL MEIER JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ. DAUPHINOT, J., filed a concurring opinion. PUBLISH
DELIVERED: August 3 0 , 2012

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00304 - CR

DWAYNE HOLMES APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRICT CO URT NO. 2 OF TARRANT COUNTY

---------- 

### CONCURRING OPINION

---------- I believe that Appellant’s complaint, raised for the first time on appeal, is an

as - applied challenge to former section 12.42(a)(1) of the penal code. I therefore agree that he forfeited his complaint by failing to raise it in the trial court and would affirm the trial court’s judgment. But I cannot join the majority’s journey beyond this holding. For the reasons eloquently expressed by Judge Cochran in2

her concurring opinion in Karenev , 1 which I have adopted in a prior concurr ing and dissenting opinion , 2 I therefore respectfully concur.

LEE ANN DAUPHINOT JUSTICE PUBLISH
DELIVERED: August 3 0 , 2012

1 Karenev v. State , 281 S.W.3d 428, 436

– 40 (Tex. Crim. App. 2009) (Cochran, J., concurring).

2 See Ibenyenwa v. State , 367 S.W.3d 420, 426

– 29 (Tex. App.

— Fort Worth 2012, pet. ref’d ) (op. on reh’g) (Dauphinot, J., concurring and dissenting ).