Opinion
No. 14-06-00153-CR
Opinion filed March 29, 2007. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1044740.
Justices FOWLER, EDELMAN, and FROST.
MEMORANDUM OPINION ON REHEARING
We grant the State's motion for rehearing, withdraw the memorandum opinion issued in this case on October 31, 2006, and issue this opinion in its place. 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 Ato 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. B 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. 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 pleas of true relieved the State of its burden to prove the prior convictions. See Harvey v. State, 611 S.W.2d 108,111 (Tex.Crim.App. 1981). Assault against a public servant is, at least, a third degree felony. See TEX. PEN. CODE `22.01(b)(1). Moreover, appellant entered a plea of true to the first enhancement paragraph alleging Athe Defendant was convicted of the felony of assault of a public servant." (Emphasis added.) There is nothing in the record affirmatively showing that conviction could not be used to enhance appellant's punishment. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex.Crim.App. 2006). Accordingly, appellant's plea of true is sufficient to prove the prior felony conviction of assault. Appellant entered a plea of true to the second enhancement paragraph alleging "the Defendant committed the felony of possession with intent to deliver a controlled substance and was finally convicted of that offense on May 3, 2001, in Cause No. 871943, in the 177th District Court of Harris County, Texas." Possession with intent to deliver is not necessarily a felony that can be used for enhancement purposes under section 12.42(d). However, because the record does not affirmatively reflect enhancement is improper, the plea of true relieved the State of its obligation to prove the prior conviction. See Ex parte Rich, 194 S.W.3d at 513. Appellant's second point of error is overruled and the judgment of the trial court is affirmed.