Omar I. Lara v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00082-CR
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OMAR I. LARA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. F22-39437
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MEMORANDUM OPINION

A grand jury indicted Appellant Omar Lara for the offense of murder, for

intentionally and knowingly causing the death of Juan Borrego by shooting him with

a deadly weapon—namely, a firearm. Lara was fourteen years old at the time of the

offense, and he was tried as an adult. Lara pleaded guilty to the offense charged, and

he elected for the jury to assess punishment. After a hearing on punishment, the jury

assessed punishment at forty years of confinement. Lara appealed, and in a single

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issue, he argues that the jury instruction provided to the jury during sentencing which

included statutory language about parole is unconstitutional. We affirm.

Appellant argues on appeal that the instruction on the law of parole that was

included in the jury charge pursuant to section 4(a) of article 37.07 of the Code of

Criminal Procedure is unconstitutional, and that it violates the separation of powers

doctrine in the Texas Constitution, the due process clause of the Fourteenth

Amendment, and the due process clause in the Texas Bill of Rights.

At the charge conference during the punishment phase, the defense counsel

made an objection as follows:

My objection is the one I always make to page 3, the language about
parole where it says that -- explains how parole works and then
specifically tells them not to think about it, which, to me, is a useless
endeavor. I object to that. I know what the statute says. I’m just giving
my normal objection.

The trial court overruled the objection.

To preserve an issue for appellate review, a party must lodge a timely

objection and state the specific legal basis for the objection. Sartin v. State, 680

S.W.3d 663, 667 (Tex. App.—Beaumont 2023, no pet.) (citing Tex. R. App. P.

33.1(a)(1)). When an issue has not been preserved for appeal, an appellate court

should not address the merits of the issue. Id. (citing Ford v. State, 305 S.W.3d 530,

532 (Tex. Crim. App. 2009)). The Court of Criminal Appeals has explained,

To preserve a complaint for appellate review, an objection must state
the grounds for the ruling sought with sufficient specificity to make the
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trial court aware of the complaint. Tex. R. App. P. 33.1(a). The
complaining party bears the responsibility of clearly conveying his
particular complaint to the trial judge. See Pena [v. State], 285 S.W.3d
[459,] 464 [(Tex. Crim. App. 2009)]. To avoid forfeiting a complaint
on appeal, the party must “let the trial judge know what he wants, why
he thinks he is entitled to it, and to do so clearly enough for the judge
to understand him at a time when the judge is in the proper position to
do something about it.” Id. (quoting Lankston v. State, 827 S.W.2d 907,
909 (Tex. Crim. App. 1992)). This gives the trial judge and the
opposing party an opportunity to correct the error. Id.

Mosley v. State, 666 S.W.3d 670, 676 (Tex. Crim. App. 2023).

Almost all error, even constitutional error, must be preserved by objection or

it is waived. See Hull v. State, 67 S.W.3d 215, 216-18 (Tex. Crim. App. 2002);

Holland v. State, 802 S.W.2d 696, 700-01 (Tex. Crim. App. 1991); Briggs v. State,

789 S.W.2d 918, 924 (Tex. Crim. App. 1990). The failure to object at trial may waive

even constitutional errors. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App.

2008). A defendant fails to preserve error when, as here, the contention urged on

appeal does not match the complaint made in the trial court. Lovill v. State, 319

S.W.3d 687, 691-92 (Tex. Crim. App. 2009). In other words, an objection stating

one legal basis for an objection at trial may not be used to support a different legal

theory on appeal. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.

2004).

In this case, Lara’s objection at the punishment hearing failed to sufficiently

identify a legal basis for his objection to the jury charge, and it did not give the trial

court enough information from which the trial court could determine whether there
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was an appropriate remedy. See Sartin, 680 S.W.3d at 671-72. Lara’s objection in

the trial court did not inform the trial court what he wanted, the legal basis for why

he thought he was entitled to it, nor inform the trial court of his complaint with

enough specificity to allow the trial court to understand his issue at a time when the

trial court was in the position to do something about it. See id. at 672. Additionally,

Lara’s objection at trial does not comport with his objection and argument on appeal.

See Lovill, 319 S.W.3d at 691-92; Heidelberg, 144 S.W.3d at 537. We conclude Lara

failed to preserve his argument for review on appeal. See Tex. R. App. P. 33.1;

Lovill, 319 S.W.3d at 691-92; Hull, 67 S.W.3d at 216-18; Sartin, 680 S.W.3d at 669.

Even assuming the argument Appellant makes on appeal had been made

during the trial and preserved for appeal, we also find Appellant’s argument without

merit. The voters determined in 1989 to amend Article IV, Section 11(a) of the Texas

Constitution to provide:

The Legislature shall by law establish a Board of Pardons and Paroles
and shall require it to keep record of its actions and the reasons for its
actions. The Legislature shall have authority to enact parole laws and
laws that require or permit courts to inform juries about the effect of
good conduct time and eligibility for parole or mandatory supervision
on the period of incarceration served by a defendant convicted of a
criminal offense.

Tex. Const. art. IV, § 11(a) (emphasis added); see also Luquis v. State, 72 S.W.3d

355, 361 (Tex. Crim. App. 2002). Section 4(a) of article 37.07 provides, in relevant

part, that the court shall charge the jury in writing as follows:

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“The length of time for which a defendant is imprisoned may be
reduced by the award of parole.
“Under the law applicable in this case, if the defendant is sentenced to
a term of imprisonment, the defendant will not become eligible for
parole until the actual time served equals one-half of the sentence
imposed or 30 years, whichever is less. If the defendant is sentenced to
a term of less than four years, the defendant must serve at least two
years before the defendant is eligible for parole. Eligibility for parole
does not guarantee that parole will be granted.
“It cannot accurately be predicted how the parole law might be applied
to this defendant if sentenced to a term of imprisonment, because the
application of that law will depend on decisions made by parole
authorities.
“You may consider the existence of the parole law. You are not to
consider the manner in which the parole law may be applied to this
particular defendant.”

Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). The Court of Criminal Appeals has

held that a trial court does not err by giving the statutorily-required instruction set

forth in section 4(a) of Article 37.07, and that an instruction under this section does

not violate a defendant’s due process or due course of law rights. See Luquis, 72

S.W.3d at 363-68.

Here, the jury instruction on parole tracks the language in Article 37.07,

section 4(a) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art.

37.07, § 4(a). The jury assessed punishment at forty years’ imprisonment—about

half the maximum sentence—and punishment in the middle of the allowable range

does not support a conclusion that the jury attempted to apply the parole law to Lara.

See Stewart v. State, 293 S.W.3d 853, 860 (Tex. App.—Texarkana 2009, pet. ref’d);

see also Tex. Penal Code Ann. § 12.32(a) (first-degree felony is punishable by a
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term for life or for any term of not more than 99 years or less than 5 years). We

presume that the jury followed the court’s instructions, and Appellant has cited no

evidence tending to show that the jury did not follow the trial court’s clear and

explicit instructions regarding the law of parole. See Luquis, 72 S.W.3d at 368; Thrift

v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).

We overrule Appellant’s issue, and we affirm the trial court’s judgment of

conviction.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on August 23, 2024
Opinion Delivered August 28, 2024
Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.

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