Opinion
No. 05-02-00980-CR
Opinion Filed June 23, 2003. Do Not Publish
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-02-175. AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
MEMORANDUM OPINION
Jerry Donell Fuqua was convicted of unlawful possession of a firearm by a felon, and punishment, enhanced by two prior felony convictions, was assessed at sixty years in prison. In four issues, appellant contends the trial court erred in allowing the State to amend the indictment, overruling his motion to dismiss or for mistrial, overruling his motion to suppress, and ordering an unedited 911 tape to be played for the jury. In a fifth issue, he asserts the evidence is legally and factually insufficient to support the jury's finding of true to the punishment enhancement allegations. The facts of this case are well-known to the parties, and we do not recite them here. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgment. We begin by addressing a matter necessitated by appellant's brief. Texas Rule of Appellate Procedure 38 governs the appellant's brief to be filed in this Court. The rule provides that a brief shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex.R.App.P. 38.1. In issues one, two, and four, appellant has either cited no legal authority or made only passing reference to a single case or statute. Because appellant develops no analysis supported by legal authority for these contentions, we conclude the issues are inadequately briefed. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App. 2000) (concluding appellant waived facial validity challenge to penal code provision by failing to support his argument with authority and failing to adequately develop his argument). We resolve issues one, two, and four against appellant. In his third issue, appellant complains the trial court erred in overruling his motion to suppress oral statements and tangible evidence seized without warrant or probable cause. In his brief, however, he mentions only a shotgun and makes no mention of any oral statements. Further, we are unable to clearly discern from the nine sentences used to brief this issue appellant's precise basis to suppress evidence. It appears, however, that appellant is arguing the police did not have reasonable suspicion to justify an investigatory stop. He does not make any argument regarding probable cause. Despite the imprecision of appellant's complaint on appeal, it is clear that appellant is not raising the same complaint he raised at trial — (1) the complainant was not a known reliable person such that a police officer could make an investigatory stop or (2) the police did not have probable cause to search the vehicle. Moreover, his specific complaint was not alleged in his motion to suppress, which argued the firearm was seized "without warrant, probable cause or other lawful authority" in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article One, Section Nine, Ten, and Nineteen of the Texas Constitution. Because appellant's complaint on appeal does not comport with his complaint at trial, it is waived. See Martinez v. State, 17 S.W.3d 677, 682 (Tex.Crim.App. 2000); see also Sandoval v. State, 35 S.W.3d 763, 770 (Tex.App.-El Paso 2000, pet. ref'd). Additionally, we note the trial judge did not hold a pretrial hearing on appellant's motion to suppress; instead, he said he would "carry [the motion] along with the trial." Appellant did not object. At trial, the State adduced evidence of the shotgun, where it was discovered, and the circumstances surrounding its discovery through three witnesses, without objection, before a hearing was held outside the jury's presence on its suppression. Under these circumstances, we conclude appellant waived any complaint about the admissibility of the shotgun. See Mulder v. State, 707 S.W.2d 908, 913 (Tex.Crim.App. 1986) (failure to object to testimony about exhibit waived error in admission of exhibit); Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App. 1980) (same). We resolve the third issue against appellant. In his fifth issue, appellant contends the evidence is legally and factually insufficient to support the jury's finding of true to the enhancement paragraphs used to increase his punishment. In particular, he contends State's Exhibit 9, which was a pen packet used to link appellant to one of the two alleged previous felony convictions, contains a date discrepancy that renders the proof of identity insufficient. Again, like the previous issues, appellant has expended minimal effort to explain his specific complaint and provides no citations to the record. Even assuming the date discrepancy would have the effect advanced by appellant, State's Exhibit 9 concerns appellant's 1992 conviction for unauthorized use of a motor vehicle and contains a pair of photographs depicting appellant's face and profile taken in January 1993. State's Exhibit 8, the pen packet regarding appellant's1983 burglary of a building conviction, also contains two photographs of appellant's face and profile taken in 1983. Further, both exhibits contain a description of a unique tattoo on appellant's arm. Appellant does not complain about the sufficiency of the fingerprint evidence related to State's Exhibit 8. Since the person convicted in State's Exhibit 8 was proven to be appellant through the use of fingerprints, the jury clearly had the ability to compare the photographs and description of the tattoo in exhibits 8 and 9 and conclude the person in both exhibits was one and the same — appellant. See Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App. 1984) (op. on State's motion for reh'g). We therefore conclude the evidence is legally and factually sufficient to support the jury's finding of true to both enhancement paragraphs. We resolve this issue against appellant. We affirm the trial court's judgment.