Robert Earnest Wilkerson v. State

• Court: Court of Appeals of Texas
• Decided: December 5, 2019
• Docket: 02-19-00210-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00210-CR ___________________________

ROBERT EARNEST WILKERSON, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR13905

Before Sudderth, C.J.; Birdwell and Bassel, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

In a single issue, Appellant Robert Earnest Wilkerson appeals his conviction

for possession of a controlled substance (psilocin mushrooms). See Tex. Health &

Safety Code Ann. §§ 481.103 (categorizing psilocin substances in penalty group two),

.116 (criminalizing possession of a penalty-group-two substance). Because he failed to

preserve his argument, we affirm the trial court’s judgment.

After Appellant was charged with unlawful possession of psilocin mushrooms

and before his trial, his trial counsel filed a motion to dismiss the charge asserting that

Appellant possessed the mushrooms for use in a Native American religious ceremony.

This is the basis of Appellant’s sole issue on appeal. But as his appellate counsel

conceded at oral argument,1 the trial court never ruled upon the motion to dismiss.

To preserve a complaint for our review, a party must have made to the trial

court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an

express or implicit adverse trial-court ruling or object to the trial court’s refusal to

rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim.

App. 2013); Martinez v. State, 17 S.W.3d 677, 686 (Tex. Crim. App. 2000). We have a

1 See Tex. Disciplinary Rules Prof’l Conduct R. 3.03, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (requiring counsel to act with candor toward the tribunal).

2 duty to independently review error preservation and to ensure that a claim is properly

preserved in the trial court before we address its merits. Darcy v. State, 488 S.W.3d

325, 327–28 (Tex. Crim. App. 2016); Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim.

App. 2010).

By failing to obtain a ruling on his motion to dismiss, Appellant forfeited his

argument that the possession charge should have been dismissed as violating his

sincerely held religious beliefs. See Tex. R. App. P. 33.1(a)(2); Everitt, 407 S.W.3d at

262–63. We therefore overrule his sole issue on appeal and affirm the trial court’s

judgment.

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: December 5, 2019