COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00304-CR

DWAYNE HOLMES APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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OPINION

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I. INTRODUCTION

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. BACKGROUND

Police arrested Holmes after he was discovered operating a vehicle being 

used as a “bait car” by members of an auto theft task force. Holmes was 

charged with theft of an automobile and with unauthorized use of a motor vehicle.

The State’s indictment also contained an 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 conviction was enhanced from a state jail felony to a 

third degree felony, and the jury sentenced him to six years’ confinement.

III. PRESERVATION OF ERROR

In his sole point, Holmes argues that the trial court erred by allowing his 

sentence to be enhanced under former penal code section 12.42(a)(1), which 

enhanced a state jail felony to a third degree felony if the defendant had

“previously been finally convicted of two state jail felonies.”1 See Act of May 28, 

1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2735 (recodified

2011) (current version at Tex. Penal Code Ann. § 12.425(a) (West Supp. 2012)). 

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 felony 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 

such 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 court of criminal appeals 

has held that allegations of due process violations are subject 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 must 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 

objection to the court’s charge or sentence during the punishment phase of the 

trial, nor did he raise this argument in a motion for new trial. Thus, he asserts his 

due process challenge to the enhancement 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 first 
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time on a writ of habeas corpus that his sentence was illegal based on an 

improper 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 this 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 constitutionality 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, we overrule Holmes’s sole point.
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IV. CONCLUSION

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 30, 2012
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00304-CR

DWAYNE HOLMES APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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CONCURRING OPINION

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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 in 
2

her concurring opinion in Karenev,

1 which I have adopted in a prior concurring 

and dissenting opinion,

2

I therefore respectfully concur.

LEE ANN DAUPHINOT

JUSTICE

PUBLISH

DELIVERED: August 30, 2012

 

1Karenev v. State, 281 S.W.3d 428, 436–40 (Tex. Crim. App. 2009) 

(Cochran, J., concurring).

2See 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).