Ornelas, Esquiel Jose v. The State of Texas
AFFIRM; Opinion Filed January 25, 2012.
Court of Appeals
Fifth District of Texas at Dallas
ESQUIEL JOSE ORNELAS, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-44789-U, F09-44790-U, F09-44792-U,
F09-44793-U, F09-44794-U, F09-44795-U
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
The State charged appellant with six felony offenses involving
possession or delivery of a controlled substance. To enhance appellant's
punishment in each case, the State alleged that appellant had a prior
conviction in 1993 for aggravated assault with a deadly weapon.
Appellant pleaded guilty without the benefit of a plea bargain to each
of the six felonies and true to the enhancement paragraph in each case.
In three of the felonies, the minimum sentence that could be assessed
was fifteen years in prison. Appellant asked the trial court to defer a
finding of guilt and order him to drug rehabilitation. The trial court
found appellant guilty and the enhancement paragraph true in each case
and assessed punishment at five years in prison in one of the six cases,
ten years in prison for two of the six cases, and fifteen years in
prison for the remaining three cases. In his sole issue in this
consolidated appeal, appellant argues that the use of the same prior
conviction for enhancement in multiple cases was unconstitutional as
applied to him. For the following reasons, we affirm the trial court's
judgments. Because all dispositive issues are settled in law, we issue
this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4.
Appellant generally argues that the procedure of using one prior
conviction to enhance punishment in multiple cases is “a violation of
due process, double jeopardy, and ultimately served as a precursor to
cruel and unusual punishment.” He does not contend that section 12.46 of
the penal code, which authorizes the State to use a single prior
conviction multiple times for purposes of enhancement, is
unconstitutional. See Tex. Penal Code Ann. § 12.46 (West 2011); Swoape
v. State, 658 S.W.2d 600, 601 (Tex. Crim. App. 1983) (stating that under
section 12.46, “a prior conviction can be used any number of times for
the purpose of enhancement”).
The State argues that appellant did not raise any of these
constitutional arguments below and has not preserved them for our review
on appeal. We agree with the State.
As a prerequisite to a complaint on appeal, appellant must show
that he raised the same complaint in the trial court. Tex. R. App. P.
33.1; Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995);
Fluellen v. State, 104 S.W.3d 152, 167-68 (Tex. App.-Texarkana 2003, no
pet.). Here, the records show that appellant pleaded true to the same
1993 aggravated assault conviction used for enhancement in each of the
six cases, he did not object to the State's use of the same prior
conviction for enhancement purposes, and he did not argue below that
multiple use of a single prior conviction for enhancement is
unconstitutional. A complaint that a statute is unconstitutional as
applied to the appellant may not be raised for the first time on appeal.
See Curry, 910 S.W.2d at 496; Fluellen, 104 S.W.3d at 167-68. Because
appellant did not raise these arguments below, he has not preserved this
issue for our review.
We affirm the trial court's judgments.
Do Not Publish
Tex. R. App. P. 47