Opinion
Nos. 05-04-01196-CR, 05-04-01197-CR
Opinion Issued May 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 3, Dallas County, Texas, Trial Court Cause Nos. F03-58559-J F03-58560-J. Affirmed.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
OPINION
Christopher Eugene Patterson appeals his convictions for aggravated robbery and possession of one gram or more but less than four grams of cocaine. After appellant pleaded guilty to both offenses, the jury found appellant guilty and made an affirmative finding that he used or exhibited a deadly weapon during commission of the aggravated robbery. The jury then assessed punishment at thirty years' and ten years' confinement, respectively. In two issues, appellant claims the trial judge erred in admitting certain evidence and improperly instructing the jury on good conduct time. We affirm the trial court's judgments. Dr. Thomas Anthony, his wife, Connie, and their two young daughters arrived home late on the evening of December 16, 2003. Appellant and Lamar Scott were waiting in the alley and forced the family into their house at gunpoint. The two men robbed the Anthony family, forcing Dr. Anthony to withdraw money from an ATM at gunpoint and terrorizing all four family members. When police arrived, they arrested appellant and Scott. After searching appellant, police found fifteen plastic bags containing cocaine. Appellant pleaded guilty to both offenses but requested a jury assess punishment. In his first issue, appellant contends the trial judge abused his discretion in admitting certain testimony. Specifically, he claims the trial judge erred in allowing Mrs. Anthony to testify, in response to the prosecutor's question on redirect that she feared she would have been killed about what she feared would have happened if the police had not arrived, that she feared she would be killed. Appellant claims the answer was inadmissible as speculation, that the error in its admission affected his substantial rights, and we must therefore reverse his conviction. We disagree. Assuming the complained-of testimony was not admissible, we conclude appellant waived error. A review of the record shows that, prior to the complained-of exchange appellant raises on appeal, the following occurred without objection during the prosecutor's direct examination of Mrs. Anthony:
[STATE]: What was the wors[t] thing you could imagine happening?[WITNESS]: I thought we were all going to be killed.
[STATE]: And did you really — did that become a clear thought to you, Mrs. Anthony? Did you really think your family was going to die?[WITNESS]: Yes. The admission of otherwise inadmissible evidence is rendered harmless when other evidence, similar to that complained of, is introduced elsewhere at trial without objection. McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992); Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986); Greenwood v. State, 740 S.W.2d 857, 860 (Tex.App.-Dallas 1987, no pet.). In this case, the same or substantially similar evidence was presented earlier in Mrs. Anthony's testimony; therefore, error, if any, in the admission of the complained-of statement does not constitute reversible error. See Howard v. State, 153 S.W.3d 382, 385 (Tex.Crim.App. 2004) (citing Massey v. State, 933 S.W.2d 141, 149 (Tex.Crim.App. 1996) (holding that if defendant objects to admission of evidence but same evidence is subsequently introduced from another source without objection defendant waives earlier objection)). We overrule appellant's first issue. In his second issue, appellant claims the trial judge erred in including a jury instruction on good conduct time in the aggravated robbery case at the conclusion of punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4 (Vernon Supp. 2004-05). Under this issue, he contends he is not eligible to receive good conduct time while incarcerated; he argues the instruction therefore deprived him of due process of law and we must reverse his conviction in cause number 05-04-01196-CR. We disagree. In Luquis v. State, 72 S.W.3d 355 (Tex.Crim.App. 2002), the Texas Court of Criminal Appeals addressed an argument similar to the one presented in this case and concluded the article 37.07, section 4 instruction, which is mandated by statute, does not violate a defendant's due process rights even "if the defendant's eligibility for parole or release on mandatory supervision will not be affected by good conduct time." Luquis, 72 S.W.3d at 365. In that case, the court determined the trial judge did not err in giving the statutorily mandated instruction, noting that judges are "not free to ignore explicit legislative directions unless those directives are clearly unconstitutional." Luquis, 72 S.W.3d at 363. The court then analyzed and rejected the appellant's argument that the instruction was unconstitutional because it violated his due process or due course of law rights by "[misstating] the law and affirmatively mislead[ing] the jury." Luquis, 72 S.W.3d at 364-65. In the Luquis case, there was nothing in the record to suggest "that the jury discussed, considered or tried to apply" what they were told about good conduct time and parole. Luquis, 72 S.W.3d at 367. Thus, the court of criminal appeals concluded the appellant had "failed to show his due process rights were violated." Luquis, 72 S.W.3d at 368. In this case, the record is similarly devoid of any evidence or indication that the jury discussed, contemplated, considered, or tried to apply what they were told about good conduct time and parole during sentencing deliberations. Although appellant claims the jury was clearly influenced by the instruction as evidenced by the "two harsh sentences [imposed] upon an individual who displayed no violence and never before had been convicted of a felony," we cannot agree. The jury was likely influenced by the facts of the case: Around ten o'clock on the evening of December 16, 2003, appellant and his partner approached the Anthony family from the alley behind the family home, forcing their entry into the house at gunpoint. Once inside, they terrorized the family, including two young daughters, ages twelve and seven. They demanded money, credit cards, and ATM cards. The two men ransacked the house, opening Christmas presents, taking jewelry, and forcing Dr. Anthony to travel to an ATM with appellant and withdraw money while his wife and daughters remained at the house with Scott. Appellant later forced Mrs. Anthony into the bedroom and ordered her to disrobe, binding her with electrical cord. She testified she feared she would be raped and killed. Scott bound Dr. Anthony's hands with electrical cord and left him on the floor in the main area of the house. Dr. Anthony testified he feared he and his family would be killed. The men had begun to load all electronic equipment into their vehicle when the police arrived. In light of this evidence and in light of the lack of evidence establishing the jury was somehow misled by the article 37.07, section 4 instruction, we conclude appellant has failed to establish that his due process rights were violated by the trial judge's instruction. See Luquis, 72 S.W.3d at 368; Atkinson v. State, 107 S.W.3d 856, 860(Tex.App.-Dallas 2003, no pet.). Accordingly, we overrule appellant's second issue. We affirm the trial court's judgments.