Opinion
Nos. 05-03-01190-CR, 05-03-01191-CR
Opinion Filed March 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-56050-Np and F02-56051-MP. Affirm.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
Christopher Johnson appeals his convictions for possession of a controlled substance with intent to deliver (cause number 05-03-01190-CR) and unlawful possession of a firearm by a felon (cause number 05-03-01191-CR). Following a combined jury trial, appellant pleaded true to the enhancement paragraph. The jury assessed punishment at twenty-five years' confinement and ten years' confinement, respectively. Additionally, the jury made an affirmative finding that appellant used or exhibited a deadly weapon during commission of the offense of possession of a controlled substance with intent to deliver. Appellant appeals the conviction of unlawful possession of a firearm by a felon claiming the evidence is factually insufficient to prove he possessed the firearm away from the location in which he lives. In both appeals, appellant complains of improper jury argument and charge error. We affirm.
I. Factual Sufficiency of the Evidence A. Standard of Review
In a challenge to the factual sufficiency of the evidence, we look at all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). If evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, the evidence is factually insufficient. Id. Similarly, when evidence exists both to support the verdict and contrary to the verdict, the evidence supporting the verdict is factually insufficient if it is so weak that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). And the fact-finder is free to accept or reject any or all of the evidence presented by either side. Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). The fact-finder may draw reasonable inferences from basic to ultimate facts. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000).B. Applicable Law
Under section 46.04(a) of the penal code, a person convicted of a felony commits an offense if he possesses a firearm after his conviction and within five years of being released from confinement or from supervision, or after that time if he possesses the firearm at any location other than where he lives.Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2004-05).C. Analysis
Appellant was arrested at 2518 Vesper with a .22 caliber pistol in his back pocket. In his first issue, appellant complains the evidence is factually insufficient to prove he did not live at 2518 Vesper, the location of the arrest. We disagree. Officer Moses testified that his investigation of 2518 Vesper was conducted through Operation Safe Home, in which the Dallas Police Department and the Dallas Housing Authority (DHA) target low-income housing areas for drug trafficking. Moses had received several complaints that drugs were being sold from 2518 Vesper, one of many low-income residences managed by the DHA. As a requirement to live in a DHA home, the person's name must be listed on the lease. Moses testified that appellant's name was not on the lease for 2518 Vesper and that he learned through his investigation that appellant did not live at that address. Appellant's parole officer testified that appellant's last known address was 10422 Cradlerock and that his identification card listed his address as 10422 Cradlerock. The book-in information in these cases listed appellant's address as 2408 Cradlerock. Moses conducted surveillance of the Vesper address two days before the search and saw appellant only on the day of the search. The State's expert witness testified it is not uncommon for people to sell drugs away from their homes to protect their families and to avoid detection. Although the parole officer testified of an outstanding warrant against appellant for changing his address without permission, there was no evidence of the new address or that appellant lived at 2518 Vesper. We conclude the evidence is factually sufficient to support his conviction for unlawful possession of a firearm by a felon away from the location in which he lives. We overrule appellant's first issue.III. Improper Jury Argument
In his second issue, appellant argues his conviction should be reversed for improper jury argument. Appellant complains that the State invited the jury to speculate about extraneous offenses when it made the following closing argument:And this case is about one day in the life of Christopher Johnson, it is not about a course of ongoing conduct. As a matter of fact, we wouldn't be able to bring in evidence of other days unless there is a conviction certain [sic] things in the law that would allow it. We wouldn't be allowed to mention offenses on other days, it is about one day in the life of Christopher Johnson, October 24th, 2002, and that's all you can hear about. So you won't know about other days?Appellant objected to the prosecutor's argument as "improper." Texas courts often hold that an objection made on the basis that an argument is improper is insufficient to preserve error because it is too general in nature. See, e.g., Martinez v. State, 833 S.W.2d 188, 192 (Tex.App.-Dallas 1992, pet. ref'd); Huggins v. State, 795 S.W.2d 909, 912 (Tex.App.-Beaumont 1990, pet. ref'd); Meek v. State, 628 S.W.2d 543, 546 (Tex.App.-Fort Worth 1982, pet. ref'd). When the record is clear that the trial court understood the nature of the error, a general objection will preserve the complaint for review. Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App. 1986); Burdine v. State, 719 S.W.2d 309, 319 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Martinez, 833 S.W.2d at 192. A general objection has been held sufficient when the trial court gave an instruction to disregard that indicated it understood the nature of the error. See, e.g., Everett, 707 S.W.2d at 641; Burdine, 719 S.W.2d at 319; Martinez, 833 S.W.2d at 192. However, when the general objection does not sufficiently apprise the trial court of the discernible grounds upon which the objection is made, no error is preserved. Huggins, 795 S.W.2d at 912. In this case, the trial court overruled appellant's general objection, and nothing in the record indicates the trial court understood the nature of appellant's complaint. We conclude appellant's general objection was insufficient to preserve his complaint for review. We overrule appellant's second issue.
IV. Charge Error
A. Failure to Charge on Extraneous Offenses In his third issue, appellant argues the trial court erred in failing to instruct the jury that it could consider evidence of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed those offenses. Because appellant did not request an instruction or object to its omission from the jury charge, he must show the error, if any, resulted in egregious harm. See Tex.R.App.P. 44.2(b); Huizar v. State, 12 S.W.3d 479, 484-85 (Tex.Crim.App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). Appellant argues the State's only evidence at the penalty phase was three extraneous offenses and that the admission of this evidence without instruction resulted in egregious harm. But the "extraneous offenses" that appellant complains of are actually prior convictions to which appellant stipulated at the penalty phase. Proof beyond a reasonable doubt is not required at the penalty phase for prior convictions, only for unadjudicated offenses and bad acts. Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004). As a result, the trial court did not err in failing to give the jury instruction on the burden of proof for extraneous offenses. We overrule appellant's third issue.B. Failure to Charge on Parole
Appellant's fourth issue complains that the trial court erred in failing to instruct the jury about the consequences of parole as required by article 37.07 section 4 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07 § 4 (Vernon Supp. 2004-05). Appellant argues the trial court was required to instruct the jury under article 37.07 section 4(a) for the possession of a controlled substance with intent to deliver charge because of the affirmative finding of a deadly weapon under article 42.12 section 3g(a)(2) and under section 4(c) for the unlawful possession of a firearm by a felon charge. However, the affirmative finding of a deadly weapon had not been made at the time the punishment charge was prepared, because this special issue was not submitted until the penalty phase. Even so, the trial court was required to instruct the jury concerning parole, whether it was under section 4(a), (b), or (c). See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2004-05); Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.-Dallas 1992, pet. ref'd). But defense counsel failed to object to the omission of the parole instruction in both charges. When trial counsel fails to object to a charge omission, we reverse only if the error affected appellant's substantial rights; in other words, appellant must show egregious harm. See Tex.R.App.P. 44.2(b); Huizar, 12 S.W.3d at 484-85; Almanza, 686 S.W.2d at 171. The harm to appellant must be actual harm and not mere speculation. Bolden v. State, 73 S.W.3d 428, 434 (Tex.App.-Houston [1st Dist.] 2002, pet ref'd). The purpose of the parole instruction is to inform the jury how good-conduct time combines with actual time to determine parole eligibility. Grigsby v. State, 833 S.W.2d at 576. Appellant argues that changes to the parole instruction over the years have made the instruction favorable to appellant. However, Texas courts agree that the State, not appellant, benefits from the parole law instructions. Id. The instruction was designed to increase jury sentences. Id. The trial court included the following instruction in the charge for possession of a controlled substance with intent to deliver:In determining the punishment in this case, you are not to discuss among yourselves how long the Defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles of the State of Texas, and are no concern of yours.In the unlawful possession of a firearm by a felon charge, the trial court instructed the jury as follows:
You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long a defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles of the State of Texas and are no concern of yours.Courts have regarded similar instructions as "curative and mitigating factors to be considered when determining whether the giving of parole law instructions harmed an appellant." Id. at 576-77 (citing Arnold v. State, 786 S.W.2d 295, 311 (Tex.Crim.App.), cert. denied, 498 U.S. 838, 111 S.Ct. 110, 112 L.Ed.2d 80 (1990)). The jury convicted appellant of possession of cocaine with intent to deliver, a first-degree felony. See Tex. Health Safety Code Ann. § 481.112(d) (Vernon 2003). Appellant pleaded true to the enhancement paragraph-a prior felony conviction for possession of cocaine with intent to deliver-making the punishment range fifteen to ninety-nine years or life and a possible fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2004-05). The jury found appellant had used or exhibited a deadly weapon during the commission of this offense. The jury also convicted appellant of unlawful possession of a firearm by a felon, a third-degree felony with a punishment range of two to ten years and a possible fine not to exceed $10,000. See Tex. Pen. Code Ann. § 46.04 (Vernon Supp. 2004-05); Tex. Pen. Code Ann. § 12.34 (Vernon 2003). Appellant stipulated to three prior felony convictions during the penalty phase. The jury assessed punishment at the maximum of ten years for the firearm charge, but at the low range on the controlled substances charge-twenty-five years. Appellant's argument that parole laws are more favorable to the defendant now than in the past and that he suffered egregious harm from the omission of the parole instruction is mere speculation. We hold the trial court's error did not affect appellant's substantial rights. We overrule appellant's fourth issue. We affirm the trial court's judgments.