Anthony Jamal Brown v. State

• Court: Court of Appeals of Texas
• Decided: April 9, 2009
• Docket: 02-08-00037-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-037-CR

ANTHONY JAMAL BROWN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. ONE OF TARRANT COUNTY

MEMORANDUM OPINION 1

In one point, appellant Anthony Jamal Brown contends that his sentence

for assault family violence with bodily injury is void and fundamentally defective

because assault family violence is not subject to a repetition enhancement

under the general enhancement statute. Because appellant failed to preserve

his complaint in the trial court, we affirm.

1 … See Tex. R. App. P. 47.4. Appellant was charged in a single indictment with punching or hitting his

mother—a class A misdemeanor punishable by up to one year’s confinement

and up to a $4,000 fine, or both—enhanced with a prior 2002 conviction for

assault causing bodily injury to a family member—a third degree felony

punishable by confinement from two to ten years and an up to $10,000 fine.

See Tex. Penal Code Ann. §§ 12.21, 12.34 (Vernon 2003), § 22.01(a)(1),

(b)(2) (Vernon Supp. 2008); see also Tex. Fam. Code Ann. §§ 71.003, 71.005

(Vernon 2008) (defining “family” and “household” members). He was also

charged with the same offense as to his sister. The State added a repeat

offender notice, alleging that in 2003, appellant had been convicted of the

felony offense of assault causing bodily injury to a family member. Upon a

finding of true to the repeat offender allegation, the two counts for assault

causing bodily injury to a family member would be enhanced to second degree

felonies. See Tex. Penal Code Ann. § 12.42(a)(3) (Vernon Supp. 2008).

A jury acquitted appellant of assaulting his sister, but it found him guilty

of assaulting his mother. Appellant then pled true to the repetition allegation,

and the jury sentenced him to seven years’ confinement.

In a single point, appellant contends that the repeat offender

enhancement was void because the underlying assault offense had already been

enhanced from a misdemeanor to a third degree felony as specifically provided

2 for in penal code section 22.01(b)(2). According to appellant, because the

assault statute has its own specific enhancement provision, section

22.01(b)(2), further enhancement as a repeat offender under the general

enhancement statute is prohibited. See Phifer v. State, 787 S.W.2d 395,

396–97 (Tex. Crim. App. 1990); Rawlings v. State, 602 S.W.2d 268, 270

(Tex. Crim. App. [Panel Op.] 1980).

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); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). 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); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

Here, appellant did not move to quash the repeat offender paragraph in

the indictment, nor did he raise his appellate complaint in the trial court.

Accordingly, we conclude and hold that appellant has failed to preserve this

complaint for our review. See Tex. R. App. P. 33.1(a); Harris v. State, 204

S.W.3d 19, 27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding that

3 propriety of enhancement allegation must be raised and ruled upon in trial court

to be subject to appellate review).

We overrule appellant’s sole point and affirm the trial court’s judgment.

PER CURIAM

PANEL: LIVINGSTON, J.; CAYCE, C.J.; and WALKER, J.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: April 9, 2009