Opinion
No. 14-06-00153-CR
Memorandum Opinion of October 26, 2006.
Corrected Memorandum Opinion filed October 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Our opinion of October 26, 2006, mistakenly stated "Affirmed and Opinion filed. . . ."
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 1044740. Reversed and Remanded.
Panel consists of Justices FOWLER, EDELMAN, and FROST.
CORRECTED MEMORANDUM OPINION
A jury convicted appellant, Alfred Nishon Payne, of unlawful possession of a firearm by a felon. Appellant entered a plea of true to two enhancement paragraphs. The trial court sentenced appellant as a habitual offender to confinement for thirty-five years in the Texas Department of Criminal Justice, Institutional Division. Appellant raises two points of error on appeal. In point of error one appellant claims the trial court erred in admitting evidence based upon scientifically unreliable expert fingerprint testimony. Catherine Mills, a fingerprint identification expert, testified for the State that appellant's fingerprints matched the fingerprints of the Alfred Payne in State's Exhibit 4, a judgment from conviction for delivery of a controlled substance. Subsequently, when the State offered Exhibit 4 into evidence, defense counsel questioned Mills on voir dire. Counsel then objected "to saying that specifically the prints of the defendant are on the card . . ." The trial court asked, "Is your objection as to the exhibit?" Defense counsel replied, "Yes." The record reflects no objection was made to Mills' testimony. Because appellant's argument on appeal does not comport with his objection at trial, nothing is preserved for review. See Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997); Drew v. State, 76 S.W.3d 436, 462 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Furthermore, if the objection encompassed Mills' testimony it was untimely and therefore any error is waived. See TEX. R. APP. P. 33.1; Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App. 1991); Lown v. State, 172 S.W.3d 753,758 (Tex.App.-Houston [14th Dist.] 2005, no pet.). For these reasons, point of error one is overruled. In his second point of error appellant argues the evidence is legally insufficient to prove the two enhancement paragraphs. The record reflects appellant entered a plea of true to assault of a public servant, and delivery of a controlled substance. Appellant asserts the State failed to prove the previous convictions were "felony" convictions and therefore did not establish his status as a habitual offender. See TEX. PEN. CODE § 12.42(d). The State contends the plea of true relieved the State of its burden to prove the prior convictions. While the State's contention is generally true, there is an exception when the record affirmatively reflects enhancement is improper. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex.Crim.App. 2006). Assault against a public servant is, at least, a third degree felony. See TEX. PEN. CODE § 22.01(b)(1). There is nothing in the record to show that conviction could not be used to enhance appellant's punishment. Accordingly, appellant's plea of true is sufficient to prove the prior felony conviction of assault. Possession with intent to deliver, however, is not necessarily a felony. The judgment of conviction entered into evidence as State's Exhibit 4 provides appellant was convicted of "DEL. COCAINE ONE GRAM." Cocaine is in Penalty Group 1. See Tex. Health Safety Code § 481.102(3)(D). Pursuant to section 481.112(b), either delivery or possession with intent to deliver of less than one gram of cocaine is a state jail felony. See TEX. HEALTH SAFETY CODE § 481.112(b). A previous conviction for a state jail felony may not be used for enhancement purposes under section 12.42(d). See TEX. PEN. CODE § 12.42(e). Therefore, the prior cocaine conviction was not a felony conviction for purposes of section 12.42(d) and could not be used to enhance appellant's punishment. Because the record affirmatively reflects that enhancement was improper, point of error two is sustained. The punishment range for unlawful possession of a firearm by a felon is two to ten years. See TEX. PEN. CODE § 46.04(e). Appellant was sentenced to confinement for thirty-five years. Because the trial court assessed punishment at more than the maximum that should have been allowed, we are unable to conclude the error is harmless. Accordingly, the judgment of the trial court is reversed and the case is remanded for a new hearing on punishment.