AFfiRM; Opinion issued October 31 2012k

In The (tniirt nf Appiati iftl! Ohtrirt nf Lrxa at Ja11a No, 05-11-01601-CR No, 05-1 1-01602-CR

JON V I’IiAN I)EliONT hOLLOWAY, Appellant V. THE STATE OF TEXAS, Appellec

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause Nos. F05-60561-L & F09-58725-L

MEMORANDUM OPINION Before Justices Moseley, Fillmore, and Myers C)pinion By Justice Fillmore ilie trial court granted the State’s motions to adjudicate, tound Jonathan Demont Holloway guilty of aggravated robbery and assault involving family violence, and assessed punishment of six years’ imprisonment on each oftense. Holloway complains he was deprived of his rights to due process and due course of law because the State failed to give him timely written notice of the motions to adjudicate. Because this complaint was not preserved for our consideration, we affirm the trial court’s judgments. The background of the cases and the evidence admitted at the hearing are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be app! ied is \ dl seti lcd, flackgrourni On March 16, 2006, Holloway pleaded guilty to aggravated robbery (cause number F05- I L). Pursuant to a pica bargain arccmcnt, the trial court dctirrcd adjudicating Holloway’s guilt, placed I lolloway on community supervision for ibur years, and assessed a fine of $1000. On February 10, 2009, the State moved to adjudicate guilt, asserting Holloway violated a number of the conditions of his community supervision, including committing a new otfense of unlawfully carrying a weapon. On April I 2009. the trial court continued l-lolloway on community supervision, but .

modified the conditions of community supervision to require Holloway to spend sixty days inail, participate in a substance abuse and/or psychological health treatment program, and submit to random urinalysis.

On October 29. 2009, the State filed a second motion to adudicatc guilt in the aggravated robbery case on grounds Holloway had committed assault involving family violence (cause number F09-58725—L) and failed to pay fees and restitution required by the tenus of his community supervision. on January 25, 2010, Holloway pleaded guilty to the assault offense. The trial court deferred adjudicating holloway’s guilt on the assault charge, placed Holloway on community supervision for a period of four years, and assessed a $500 fine. The trial court also extended the period ot community supervision in the aggravated robbery case by two years.

On December 28, 2010. the State tiled motions to adjudicate guilt in both cases, alleging 1-lolloway violated a number of conditions of his community supervision, including testing positive for “TlIC” on two occasions and Fuling to report to his probation officer. The hearing on the State’s motions occurred on October I I 2011. Holloway . was served with the motions on the day of the hearing.

—2— Holloway entered an open plea of true to the allegations he tested positive for “THC” and failed to report to his probation officer. During the hearing, Holloway testified he had reviewed the motions with his attorney and understood each allegation in the motions. Holloway also imlicated he understood he had a right to a hearing on the motions, a right to call witnesses, and a right to cross-examine the State’s witnesses. Holloway answered affirmatively when asked ifhe wanted to “give up” those rights and proceed on the plea of”true.” Holloway admitted he smoked marijuana while on community supervision and failed to report as required. Holloway indicated that ifthe trial court continued him on community supervision, he would abide by all conditions.

The trial court granted the State’s motions, adjudicated Holloway guilty ofboth offenses, and sentenced him to six years’ imprisonment on each offense.

Analysis Holloway complains on appeal that because he was not served with the State’s motions to adjudicate until the day of the hearing, he was deprived of due process of law under the Fifth Amendment to the United States Constitution and due course of law under article I, section 19 of the Texas Constitution. Generally, to preserve a complaint for appellate review, a party must make a timely, specific request, objection, or motion in the trial court and obtain an adverse ruling from the trial court. TEx. R. App. P. 33.1(a); Pena v. State, 285 S.W.3d 459,464 (Tex. Crim. App. 2009) (to avoid forfeiting complaint, 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 thejudge to understand him at a time when thejudge is in the proper position to do something about it”) (quoting Lankston v. State, 827 S.W.2d 907,909 (rex. Crim. App. 1992)). The requirement ofpreservation oferror generally applies to constitutional errors. Fuller v. State, 253 S.W.3d 220, 232 (rex. Crim. App. 2008) (“almost all error—even constitutional error—may be forfeited ifthe appellant failed to object”); Curry v. State, 910 S.W.2d

-3- 30, 4 (ic x ( ‘rim. App. 1 . i ) ( appellant did not raise due pwcess and due Course of law obeetions in trial court and, therefore, hued to preserve issue for appellate review).

1 A reviewing court should not address the merits of an issue that has not been preserved for appeal. Wilson v. Slate, 311 S.W .3d 452, 473 (Tex. (rim. App. 2010) (per curiam) (op. on reh’g) (quoting frord i’.

State, 305 S,W.3d 530, 532 (Tex. Crim. App. 2009)).

Holloway did not raise his complaint that he was deprived of his rights to due process and due course ot law in the trial court. Accordingly, he failed to preserve this complaint tor our review.

See TEx, R. APP. P. 33,1; Pena, 285 SW.3d at 454; Curiy, 910 S.W.2d at 496,2 We resolve Hollowavs sole issue against him and aflirm the trial court’s judgments.

ROBERT M. FILLMORE JUSTiCE Do Not Publish TEx. R. ApP. P.47 ii IÔOIF.U05

See aivo Norman eState, N .A0-76063. 20) I WL I 158574, at *3 (Tex. Crim. App. Feb. 6. 20) ((not designated for publica1ion (appellant did ml raise due process and due course of law objections in trial court and, therefore, did not preserve complaints for appellate rc iew).

See also Legue v. State, Nos, 05-09-00042-CR, 05-09-00043-CR. 2010 WL 670230, at * I (Sex, App.--—Dal las Feb. 6, 2010. no pet.) (mem. op., not designated forpublication): Lore/Ic State. No. 10-10-00180-CR. 2012 WL503653. at * I (Tea. App --—Waco Feb. 15. 2012. nopet.) (mern. op.. not dcsinated for publication): ilanlin.v t. State. No. 02— —00 I 7—CR. 2)) I \VL 6200870. at “2 (1 cx. App-—Fort Worth Dec. 5. 2))) 1 pet. refd ((item. op.. not designated for publication).

-4- unrt nf Apprals .FiftIi iitrirt ul tirxa al Ja1Ia JUDGMENT JONATHAN DEMON]’ HOLLOWAY. Appeal from the Criminal District Court No. Appel Lint 5 of Dallas County, Texas. (Tr.CtNo, F05— 60561 -L).

No. 051l’01601CR V. Opinion delivered by Justice Fillmore, Justices Moseley and Myers participating. ‘I’I-IE SlATE OF TEXAS. Appellee B sed on th. Corn ts opinion of this datc thc tidgrntnt of the ti iii court is AFI 1RMI I)

Judgment entered October 31, 2012.

I

ROBERT M. FILLMORE JUSTICE ui i\ppiati Qtutrt FiftI! OlaIrirt 01 ixa at alla JUDGMENT JONATTIAN DEMONT H( LLO WAY, Appeal from the Criminal District Court No. i\ppellant 5 of Dallas County. Texas. (TrCt.No. FO9 5$725L.

No. O’ 11 () 1 (()2(’R Opinion delivered by Justice Fillmore, Justices Moseley and Myers participating.

TFIE STATE. OF TEXAS, Appellee Base(l on the Court’s opinion ol this (late. the judgment ol the trial court is AFFI kM El).

i ud2ment entered October 3 I 2(312.

ROBERT M. FILLMORE JUSTiCE