Opinion
06-21-00134-CR
04-11-2022
ASHTON JACORRIEN GREEN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted: March 15, 2022
On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29174
Before Morriss, C.J., Stevens and Carter, [*] JJ.
MEMORANDUM OPINION
Scott E. Stevens Justice.
A Lamar County jury convicted Ashton Jacorrien Green of murder. After finding the State's punishment enhancement allegation true, the jury assessed a sentence of ninety-nine years' imprisonment. On appeal, Green argues that there was a material variance in the State's notice of enhancement. Because we find the issue unpreserved, we overrule Green's sole point of error and affirm the trial court's judgment.
The State's indictment alleged that Green committed "FIRST DEGREE FELONY" murder by "intentionally and knowingly caus[ing] the death of an individual, namely Rolshawun Goff, by shooting . . . [him] with a firearm." Before trial, the State filed a notice of intent to enhance Green's punishment with a prior felony offense. The notice alleged that Green was convicted of burglary of a habitation in 2015 in the 314th Judicial District Court of Harris County, Texas, in cause number 201402860J. The notice said that the enhancement was made pursuant to Section 12.42(b) of the Texas Penal Code and that the resulting minimum punishment range was fifteen years' confinement.
Section 12.42(b) applies to second-degree felonies. Tex. Penal Code Ann. § 12.42(b). Because Green's offense of murder is a first-degree felony, Section 12.42(b) does not apply. See Tex. Penal Code Ann. § 19.02(c). Instead, the applicable language is found in Section 12.42(c)(1), which states the following:
If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.Tex. Penal Code Ann. § 12.42(c)(1). Green did not object to the State's mistaken use of Section 12.42(b) in place of Section 12.42(c)(1), pled guilty to the prior burglary as alleged in the State's notice, and did not object to the introduction of the Harris County judgment convicting him of the prior burglary. Even so, for the first time on appeal, Green complains that "[t]here was a material variance between the State's enhancement notice and the proof at trial because the State alleged an inapplicable enhancement provision." We find that Green failed to preserve this issue for our review.
The trial court charged the jury in accordance with Section 12.42(c)(1) by instructing it that the offense was punishable "by a term of imprisonment for no less than fifteen years and no more than ninety-nine years or for life and a fine of no more than $10,000" if it found the State's enhancement allegation true.
Green cites no authority explaining how the State's use of Section 12.42(b) instead of Section 12.42(c)(1) resulted in a variance that was material. See Gollihar v. State, 46 S.W.3d 243, 249-50 (Tex. Crim. App. 2001). Instead, he states, "Admittedly, the purpose of enhancement allegations is to provide the accused with notice of the proper conviction to be relied on to avoid surprise. That was correctly done here. Additionally, surplusage in an allegation is likely not material." (Citations omitted). Green also states, in a conclusory sentence, that the evidence was insufficient to support the enhancement allegation. This complaint is meritless considering Green's plea of true to the offense and the admission of the judgment of conviction for the burglary offense clearly noticed by the State in the enhancement allegation, which was admitted without objection.
Generally, a party must object to preserve error on appeal. See Tex. R. App. P. 33.1(a). However, pursuant to Rule 103(e) of the Texas Rules of Evidence, "[i]n criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved." Tex. R. Evid. 103(e). Green argues that the "material variance" in the State's notice of enhancement has produced fundamental error. We disagree.
Fundamental errors fall into "two relatively small categories of errors: violations of 'rights which are waivable only' and denials of 'absolute systemic requirements.'" Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (quoting Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)). "Waivable only" rights include the right to the assistance of counsel and the right to trial by jury. Id. "Absolute, systemic rights" "include jurisdiction of the person, jurisdiction of the subject matter," "a penal statute's . . . compliance with the Separation of Powers Section of the state constitution," "a constitutional requirement that a district court must conduct its proceedings at the county seat," "the constitutional prohibition of ex post facto laws," and "certain constitutional restraints on the comments of a judge." Id. at 888-89. Green's complaint does not fall into either of the categories of fundamental error. As a result, we reject Green's argument of fundamental error and conclude that he was required to preserve any error by presenting to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling. See Tex. R. App. P. 33.1(a)(1); Tex. Code Crim. Proc. Ann. art. 1.14(b).
Here, Green failed to raise with the trial court the complaint he now asserts on appeal. As a result, we find that Green's sole point of error is unpreserved. See Biggers v. State, 634 S.W.3d 244, 249-50 (Tex. App.-Texarkana 2021, pet. ref'd) ("Even assuming, without finding, that the language in the enhancement paragraph of the indictment was defective, [defendant] has waived any issue regarding the substance of the indictment because of his failure to bring it to the trial court's attention."); Steadman v. State, 160 S.W.3d 582, 585 (Tex. App.-Waco 2005, pet. ref'd) (finding that a defendant "failed to preserve his complaint regarding the adequacy of the enhancement allegation because he failed to raise it by pretrial objection"); see also Jenkins v. State, No. 06-17-00089-CR, 2017 WL 4287896, at *1 (Tex. App.-Texarkana Sept. 28, 2017, pet. ref'd) (mem. op., not designated for publication) (finding that defendant failed to preserve complaint that enhancement allegation mistakenly listed Section 12.42(b) instead of 12.42(d) of the Texas Penal Code).
"Although unpublished cases have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd)).
We affirm the trial court's judgment.
[*]Jack Carter, Justice, Retired, Sitting by Assignment