Monte Eric Jordan A/K/A Jonathan Christopher McConell A/K/A Jonathan Chirs McConell A/K/A Chris McConell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 13, 2023
• Docket: 13-22-00302-CR
• Status: Published

Opinion

NUMBER 13-22-00302-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MONTE ERIC JORDAN A/K/A JONATHAN CHRISTOPHER MCCONELL A/K/A JONATHAN CHIRS MCCONELL A/K/A CHRIS MCCONELL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 404th District Court of Cameron County, Texas.

OPINION Before Justices Tijerina, Silva, and Peña Opinion by Justice Tijerina

A jury convicted appellant Monte Eric Jordan a/k/a Jonathan Christopher McConell

a/k/a Jonathan Chirs McConell a/k/a Chris McConell of capital murder, and the trial court

sentenced him to life imprisonment without parole. See TEX. PENAL CODE ANN. § 19.03; TEX. CODE CRIM. PROC. ANN. art. 37.071. By his sole issue, appellant argues the trial court

erred by “not inform[ing] prospective [sic] jurors of the punishment under” § 12.31 of the

Texas Penal Code. See TEX. PENAL CODE ANN. § 12.31. We affirm as modified.

I. PERTINENT FACTS

On June 16, 2022, a jury convicted appellant of capital murder in the course of

committing or attempting to commit the offense of kidnapping, or in the course of

committing or attempting to commit the offense of retaliation, as charged in the indictment.

The trial court imposed a mandatory life sentence without parole. See TEX. CODE CRIM.

PROC. ANN. art. 37.071, § 1(a) (“If a defendant is found guilty in a capital felony case in

which the state does not seek the death penalty, the judge shall sentence the defendant

to life imprisonment or to life imprisonment without parole as required by [§] 12.31, Penal

Code.”).

During voir dire, the following transpired:

[The State]: In capital murder cases, right, if you find that Mr. Jordan committed capital murder beyond a reasonable doubt, there are only two outcomes: Life in prison without parole or the death penalty. Right? In this case, the State is not seeking the death penalty, right? So as far as—that’s what I was trying to tell you—as far as the death penalty goes, you will not have to worry about that in this case. ....

[The State]: So when we get, I believe we will, when we get to that stage, if he’s guilty of capital murder, there is no punishment phase. Remember I told you, if you are guilty of capital murder and you are over the age of 18, there’s only two options. You get put the [sic] death or you get sentenced to life in prison without parol[e]. We have elected not to seek the death penalty in this case. So that means if Mr. Jordan is convicted of capital

2 murder, there is no punishment for you to have to worry about.

II. PRESERVATION OF ERROR

By his sole issue, appellant argues that the trial court committed structural error by

failing to inform prospective jurors that the State was not seeking the death penalty and

that the sentence of life imprisonment without parole was mandatory upon a conviction of

capital murder in accordance with § 12.31.

Section 12.31(b) provides that when the State does not seek the death penalty in

a capital felony trial, prospective jurors shall be informed that the State is not seeking the

death penalty and that a sentence of life imprisonment without parole is mandatory if the

defendant is convicted. See TEX. PENAL CODE ANN. § 12.31. The record reflects that the

trial court did not instruct the jurors pursuant to § 12.31. However, appellant did not object

to the State’s assertion during voir dire or request that the trial court give such an

instruction. “As a prerequisite for presenting a complaint for appellate review, rule of

appellate procedure 33.1(a) requires a timely objection with sufficient specificity to make

the trial court aware of the complaint.” Murkledove v. State, 437 S.W.3d 17, 26–27 (Tex.

App.—Fort Worth 2014, pet. ref’d) (holding that a complaint “that the trial court erred by

not instructing the potential jurors that a sentence of life without parole is mandatory upon

a conviction of a capital felony” was not preserved for appellate review where appellant

“did not object or request that the trial court give such an instruction”); see Smith v. State,

420 S.W.3d 207, 214 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (determining that

the appellant’s failure to request that the trial court instruct the jury panel pursuant to

§ 12.31(b) forfeited an appellate complaint); Flowers v. State, 959 S.W.2d 644, 646 (Tex.

3 App.—Houston [1st Dist.] 1996, pet. ref’d) (“Appellant did not point out the [§ 12.31]

omission to the trial court. He cannot now argue for the first time on appeal that the

omission was error.”); see also TEX. R. APP. P. 33.1(a) (providing that “[a]s a prerequisite

to presenting a complaint for appellate review,” an objection must be made to the trial

court); Ramirez v. State, No. 13-10-00205-CR, 2012 WL 170996, at *10 (Tex. App.—

Corpus Christi–Edinburg Jan. 19, 2012, pet. ref’d) (mem. op., not designated for

publication) (explaining that the complaint that “the trial court failed to properly inform the

jury panel during voir dire regarding the mandatory punishment for capital murder” was

not preserved when the defendant “made no objections” in the trial court); Barradas v.

State, No. 05-14-01271-CR, 2015 WL 6157169, at *4 (Tex. App.—Dallas Oct. 20, 2015,

no pet.) (mem. op., not designated for publication) (“Barradas did not lodge her [§ 12.31]

objection in the trial court [] and has waived this complaint for appeal.”); Anderson v.

State, No. 01-94-00568-CR, 1995 WL 717033, at *5 (Tex. App.—Houston [1st Dist.] Dec.

7, 1995, pet. ref’d) (mem. op., not designated for publication) (“Because appellant made

no objection about the trial court’s failure to comply with [§] 12.31(b), he preserved

nothing for review.”). In Ramirez, we held that because “Ramirez made no objections that

the State misinformed the jury about the mandatory punishment,” he “preserved nothing

for our review.” Ramirez, 2012 WL 170996, at *10. Because appellant made no objections

that the trial court did not advise the jury about the mandatory punishment, he preserved

nothing for our review. Murkledove, 437 S.W.3d at 27; Smith, 420 S.W.3d at 214; Flowers,

959 S.W.2d at 646; see also Ramirez, 2012 WL 170996, at *10. Accordingly, we overrule

appellant’s sole issue.

4 III. MODIFICATION OF JUDGMENT

The nunc pro tunc judgment for the conviction of capital murder does not include

the statute for offense of Texas Penal Code 19.03. We modify the judgment to recite the

statute for offense: Texas Penal Code 19.03. See Bigley v. State, 865 S.W.2d 26, 27–28

(Tex. Crim. App. 1993) (noting that we have the power to modify a judgment to speak the

truth when we are presented with the necessary information to do so).

IV. CONCLUSION

We affirm, as modified, the judgment of the trial court.

JAIME TIJERINA Justice

Publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 13th day of July, 2023.