Opinion
No. 10-06-00082-CR.
Opinion delivered and filed January 10, 2007. Do Not Publish.
Appeal from the 85th District Court, Brazos County, Texas, Trial Court No. 05-02908-CRF-85.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Sims was charged with second-degree-felony delivery of cocaine, a controlled substance in Penalty Group 1, and the jury found him guilty of the lesser included third-degree-felony offense of simple possession. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (c), § 481.115(a), (c) (Vernon 2003); id. § 481.102(3)(D) (Vernon Supp. 2006). Sims appeals. We affirm. Motion to Suppress Evidence. In Sims's second issue, he contends that the trial court erred in overruling Sims's motion to suppress evidence. Sims argues that the search of his apartment was illegal under Texas Code of Criminal Procedure Article 15.16, which provides, "The officer or person executing a warrant of arrest shall without unnecessary delay take the person or have him taken before [a] magistrate. . . ." TEX. CODE CRIM. PROC. ANN. art. 15.16(a) (Vernon Supp. 2006). "As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court. . . ." TEX. R. APP. P. 33.1(a); see Buchanan v. State, No. PD-0006-06, 2006 Tex. Crim. App. LEXIS 2032, at *6-*7 (Tex.Crim.App. Oct. 18, 2006). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Neal v. State, 150 S.W.3d 169, 175 (Tex.Crim.App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004)); see Marin v. State, 851 S.W.2d 275, 278-80 (Tex.Crim.App. 1993). ". . . Texas Rule of Appellate Procedure 33.1 [is a] `judge-protecting' rule of error preservation." Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005) (quoting Martinez v. State, 91 S.W.3d 331, 335 (Tex.Crim.App. 2002)). "Whichever party complains on appeal about the trial judge's action must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the . . . rule in question and its precise and proper application to the evidence in question." Reyna at 177. "When the objection is not specific, and the legal basis is not obvious, it does not serve the purpose of the contemporaneous-objection rule for an appellate court to reach the merits of a forfeitable issue that is essentially raised for the first time on appeal." Buchanan at *6-*7. Moreover, in order to preserve the complaint, "the point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). "[A] pretrial motion to suppress based upon constitutional principles" does not suffice "also to preserve error under . . . the Texas Code of Criminal Procedure." Buchanan at *1; see Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App. 2002). Sims's motion to suppress evidence argued only under the United States and Texas Constitutions and Texas Code of Criminal Procedure Article 38.23. See U.S. CONST. arts. IV-VI, XIV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005). At the hearing on the motion, Sims argued only that the "protective-sweep" search of his apartment was not based on "specific and articulable facts that a person in that area poses a danger to police or others," and thus was unreasonable and unconstitutional under the Fourth Amendment (quoting Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000)). On appeal, Sims argues only under Article 15.16, arguing that instead of taking Sims before a magistrate without unnecessary delay, "the officers remained in [Sims]'s apartment seeking to obtain his consent to search the apartment." (Br. at 12.) To the extent that Sims's Article 15.16 argument on appeal does not comport with his Fourth-Amendment argument at trial, Sims fails to preserve his issue. We overrule Sims's second issue. Charge. In Sims's first issue, he contends that the trial court erred in instructing the jury on the lesser included offense of simple possession of a controlled substance. Texas Code of Criminal Procedure Article 36.14 provides in relevant part that "in each felony case . . ., the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case. . . ." TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 1981).
Whenever it appears by the record in any criminal action upon appeal that any requirement of Article 36.14 . . . has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006).
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Then, if we find error, we analyze that error for harm. Preservation of charge error does not become an issue until we assess harm. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Under Almanza, jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Thus, we review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005) (internal footnotes omitted) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) [(op. on reh'g)] Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App. 2004)). "A trial court may instruct the jury on a lesser included offense if (1) the offense in question is a lesser included offense under Article 37.09 of the Texas Code of Criminal Procedure and (2) there is some evidence that would permit a rational jury to find that the defendant is not guilty of the greater offense but is guilty of the lesser included offense." Stadt v. State, 182 S.W.3d 360, 363 (Tex.Crim.App. 2005); accord Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993); see TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006). Under the second prong, "[i]n other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense." Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 2982 (2006) ( Sorto citing Rousseau at 672 Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998)). Evidence "need be only more than a mere scintilla, and it may be impeached or contradicted, but it must be sufficient, if believed, to at least permit a rational jury to return a verdict on the lesser-included offense." Ex parte Thompson, 179 S.W.3d 549, 560 (Tex.Crim.App. 2005) (citing Rousseau at 672-73). "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003) (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997)). Sims argues: "The record is replete with evidence of [Sims]'s intent to deliver. . . . [T]here is no evidence upon which a rational trier of the facts could have concluded [Sims] merely possessed the controlled substance without the intent to deliver the substance." (Br. at 9.) The State points primarily to testimony to the effect that Sims's apartment was not a "hot spot," that is, a place "that's known for narcotics trafficking"; and that the apartment was used as a "crack house," that is, a place "that the owners allow people to use to smoke crack," such as testimony that another person with access to the cocaine was present in the apartment when officers arrived there to execute an arrest warrant on Sims. (4 R.R. at 50, 59.) That testimony constitutes more than a scintilla of evidence sufficient to permit a rational jury to acquit Sims of possession with intent to deliver and convict Sims of simple possession. The trial court did not err in instructing the jury on simple possession. We overrule Sims's first issue. Judgment. In Sims's third issue, he contends that the trial court erred in its recitations in the judgment of the offense and degree of offense of which Sims was convicted. The State agrees. Code of Criminal Procedure Article 42.01 requires that the judgment must state "[t]he offense . . . for which the defendant was convicted" and the "degree of offense for which the defendant was convicted." TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(13)-(14) (Vernon Supp. 2006). "The court's judgment must accurately recite any of the matters listed in article 42.01 which apply to the case." Payne v. State, No. 10-05-00125-CR, 2005 Tex. App. LEXIS 10407, at *2 (not designated for publication) (mem. op.); see Rachuig v. State, 972 S.W.2d 170, 179 (Tex.App.-Waco 1998, pet. ref'd). "This court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so. . . ." See Campbell v. State, 900 S.W.2d 763, 773 (Tex.App.-Waco 1995, no pet.); see Jordan v. State, 552 S.W.2d 478, 479 (Tex.Crim.App. 1977); TEX. R. APP. P. 43.2(b). The judgment recites:
OFFENSE: Manufacturing and Delivery of Controlled
Substance PG 1 1-4 Grams
. . .
DEGREE OF OFFENSE: Second Degree Felony(C.R. at 51.) The jury found Sims " GUILTY of the lesser included offense of Possession of a controlled substance (1-4 grams) as alleged in the indictment." ( Id. at 61.) The indictment alleged that Sims possessed "a controlled substance, namely, cocaine, in an amount of one gram or more but less than four grams." ( Id. at 1.) Simple possession of one gram or more but less than four grams of a controlled substance in Penalty Group 1 is third-degree felony. TEX. HEALTH SAFETY CODE ANN. § 481.115(a), (c); see TEX. PENAL CODE ANN. § 12.34 (Vernon 2003). The trial court erred in the judgment in its statements of the offense and degree of offense of which Sims was convicted. We sustain Sims's third issue. CONCLUSION. Having overruled Sims's first two issues and sustained his third issue, we modify the judgment to reflect that Sims was convicted of possession of a controlled substance listed in Penalty Group 1 in an amount of 1 gram or more but less than 4 grams, a third-degree felony; and we affirm the judgment as so modified. Affirmed as modified