William Buckner Hubble v. State

                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00541-CR


WILLIAM BUCKNER HUBBLE                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                       TRIAL COURT NO. 07-256

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                        MEMORANDUM OPINION1

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      Appellant William Buckner Hubble was charged with unlawfully possessing

a firearm at a location other than where he lived after having been convicted of a

felony. See 

(a) (West 2011). The State filed

notice of its intention to use two prior felony convictions to enhance punishment

to habitual offender status. The notice included a 1994 felony possession-of-a-

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       See Tex. R. App. P. 47.4.
controlled-substance conviction and a 1987 felony burglary-of-a-motor-vehicle

conviction.

      A jury found Hubble guilty of unlawfully possessing a firearm. Prior to

commencement of the punishment phase of trial, Hubble’s defense attorney

objected to the use of Hubble’s 1987 burglary-of-a-motor-vehicle conviction as a

prior felony conviction for enhancement purposes because the legislature had

reclassified that offense from a felony to a misdemeanor after Hubble’s 1987

conviction. The trial court overruled the objection.

      During the punishment phase of trial, the State introduced evidence to

support the two prior felony convictions. The State also introduced evidence of

Hubble’s prior misdemeanor convictions for assault in 1997, possession of

marijuana in 2003 and in 2005, driving while intoxicated in 1993 and 2005, and

possession of a prohibited weapon in 2006 and of a 1987 judgment revoking

probation for burglary of a habitation.

      During closing arguments, Hubble’s attorney argued,

            Now, the charge, of course, has a huge wide range just like I
      told you it would during voir dire. You can assess anywhere from
      two to 99 years or life, depending upon your findings after you
      review this charge on punishment.

             . . . The State has alleged that he committed the crime, or
      was convicted of a crime of burglary of a motor vehicle in 1987.
      That would have made him around 19 years old. I don’t know very
      many people that would want to be judged on their behavior as a 19
      year old.

           Now, did there happen to be a gun? Obviously not. . . . . But
      another thing to remember about burglary of a motor vehicle, and no


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      one is saying it’s a good crime. There’s not such a thing. But you
      also need to realize that since then and now—

The State then objected that “he’s going outside the record.” The trial court

sustained the objection.

      The jury found both enhancement allegations to be true, which increased

the punishment range to a minimum of 25 years’ imprisonment and a maximum

of 99 years’ or life imprisonment, and assessed Hubble’s punishment at sixty

years’ confinement. See 

(d) (West Supp. 2014).

The trial court sentenced Hubble accordingly. Although Hubble did not timely

perfect an appeal, the Texas Court of Criminal Appeals granted his request for

leave to file an out of time appeal. See Ex Parte Hubble, No. WR-79509-01,

 (Tex. Crim. App. Oct. 9, 2013) (not designated for

publication).

      In two issues, Hubble contends that the trial court abused its discretion by

sustaining the State’s objection to his closing argument as set forth above.

Hubble argues that the trial court’s ruling impermissibly limited his closing

argument and deprived him of his Sixth Amendment right to counsel. Hubble

acknowledges that the Texas Court of Criminal Appeals has held that the State

may use for enhancement purposes a prior felony that has since been

reclassified as a misdemeanor. See State v. Wooldridge, 

, 716–

17 (Tex. Crim. App. 2007). And he concedes that the State’s use of his prior

conviction for burglary of a motor vehicle for enhancement was proper in this



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case because that offense was classified as a felony at the time of his 1987

conviction. Rather, Hubble asserts that he should have been allowed to tell the

jury that the offense of burglary of a motor vehicle has since been reclassified as

a misdemeanor and that, consequently, had he committed that offense a few

years later, the State could not have used it to enhance his punishment in this

case.

        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); Landers v. State, 

 (Tex. Crim. App. 2013); Sample v. State, 

 (Tex.

App.—Fort Worth 2013, pet. ref’d). 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); Pena v. State, 

 (Tex. Crim. App. 2011).             “To

avoid forfeiture of a complaint on appeal, all a party has to do is let the trial judge

know what he wants and why he thinks he is entitled to it and do so clearly

enough for the judge to understand the request at a time when the trial court is in

a proper position to do something about it.” Bedolla v. State, 

 (Tex. Crim. App. 2014).

        Here, Hubble did not inform the trial court of the specific argument he

intended to make after the State interrupted his argument to object and after the


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trial court sustained the State’s objection. Defense counsel argued, “[A]nother

thing to remember about burglary of a motor vehicle, and no one is saying it’s a

good crime. There’s not such a thing. But you also need to realize that since

then and now—”     The only other argument in the record that sheds light on what

defense counsel was attempting to argue was his objection at the beginning of

the punishment phase of trial to the State’s use of Hubble’s 1987 burglary of a

vehicle conviction for enhancement. Specifically, defense counsel stated,

      Judge, I am going to object to the portion and to any enhancement
      that’s come up with regard to burglary of a motor vehicle inasmuch
      as that offense since then has been reduced to a Class A -- I mean,
      not this particular one. I’m saying the legislature since the ‘80s has
      realized -- has thought better of it and gone back in and made that a
      Class A misdemeanor. I don’t think it’s fair to come at him two
      decades later using it as a felony enhancement. And we are asking
      that that be removed from the charge.

      As the State recognizes on appeal, Hubble was not required to formally

except to the trial court’s ruling on the State’s objection to preserve error for

appeal but the only matter apparent to the trial court from the context of the

record was that defense counsel wanted to inform the jury that it should not use

the prior burglary conviction for enhancement because it has been reclassified as

a misdemeanor. To the extent that defense counsel was attempting to make any

other argument, he has not preserved his complaint for appeal. See Tex. R.

App. P. 33.1(a)(1). And to the extent that defense counsel was attempting to

argue that the jury should not use Hubble’s 1987 felony conviction to enhance his

punishment because it has since been reclassified as a misdemeanor, this is not



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a proper statement of the law, as conceded by Hubble on appeal.               See

Wooldridge, 237 S.W.3d at 716–17. This argument is also contrary to the law

contained in the jury charge. See State v. Renteria, 

 (Tex.

Crim. App. 1998) (holding that jury argument stating law contrary to the jury

charge is improper). The jury charge stated the applicable law regarding the

jury’s consideration of the prior felony offenses alleged by the State for

enhancement; the jury was tasked with determining whether the allegation of the

prior conviction was true beyond a reasonable doubt. An argument that the jury

find the allegation not true because the prior offense is no longer classified as a

felony would be an improper suggestion that the jury refuse to follow the law.

See Eckert v. State, 

 (Tex. App.—Austin 1984, pet. ref’d).

      Because Hubble was not entitled to make the only argument preserved for

appeal and because he did not preserve for appeal any other complaint

regarding his attempted jury argument, we overrule Hubble’s two issues and

affirm the trial court’s judgment. See Tex. R. App. P. 33.1(a)(1).


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. concurs without opinion.

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

DELIVERED: December 23, 2014


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