Thus, in some cases, possession of a large quantity of drugs alone can be sufficient to prove intent to deliver if that evidence is accompanied by expert testimony that the amount at issue is indicative of the intent to deliver. Simmons v. State, 100 S.W.3d 484, 491 (Tex. App.-Texarkana 2003, pet. ref'd).
C. Fundamental Error In his third issue, appellant contends the State's closing remarks, discussed above, amount to fundamental error and thus, no objection was required at trial. To support this contention, appellant cites to Clay v. State, 741 S.W.2d 209, 210 (Tex. App.-Dallas 1987, writ ref'd). However, although formerly an appellant could complain of unobjected to improper argument if the argument was so egregious that its harm could not be cured by an instruction to disregard, this is no longer the rule. Simmons v. State, 100 S.W.3d 484, 495 (Tex. App.-Texarkana 2003, pet. ref'd). Now, before complaining on appeal about an erroneous jury argument, an appellant must show that he timely and properly objected to the argument and pursued the objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Simmons, 100 S.W.3d at 494-95. Here, even assuming for the sake of argument that the State's remarks were improper, appellant did not object to the State's argument and therefore has waived any alleged error. Accordingly, we overrule his third issue. For the foregoing reasons, appellant's conviction is affirmed.
Ct. App. Tex., 6th Dist. Certiorari denied. Reported below: 100 S.W. 3d 484.
In fact, possession of a large quantity of drugs alone can be sufficient evidence to show an intent to deliver in the presence of expert testimony by a law enforcement officer that the quantity at issue indicates an intent to deliver. Id. at 49 (holding evidence is legally sufficient in light of expert testimony that such a large amount was intended for sale); Simmons v. State, 100 S.W.3d 484, 491 (Tex. App.—Texarkana 2003, pet. ref'd) (holding evidence legally sufficient due to a large amount of cocaine seized and expert testimony that such a large amount was intended for sale). The only standard of review recognized by the Texas Court of Criminal Appeals in reviewing the sufficiency of the evidence necessary to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Furthermore, if an officer has reasonable suspicion to believe that an individual is speeding, the officer may "initiate a valid traffic stop." Simmons v. State, 100 S.W.3d 484, 490 (Tex. App.—Texarkana 2003, pet. ref'd). In addition, the Transportation Code specifies that "[t]he operator of a vehicle or streetcar shall comply with an applicable official traffic-control device placed as provided by this subtitle," Tex. Transp.
See TEX. R. EVID. 103(a) ; Sink v. Sink , 364 S.W.3d 340, 347 (Tex. App.—Dallas 2012, no pet.) (requiring party challenging exclusion of evidence to make offer of proof or file formal bill of exception to preserve issue on appeal); Simmons v. State , 100 S.W.3d 484, 495 (Tex. App.—Texarkana, pet. ref'd). Accordingly, she has failed to preserve this issue for appeal, and we discern no bases for reversal in any event.
"Before an appellant will be permitted to complain on appeal about an erroneous jury argument, he must show that he timely and properly objected to the argument and pursued his objection to an adverse ruling." Simmons v. State, 100 S.W.3d 484, 494 (Tex. App.—Texarkana 2003, pet. ref'd) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). Pursuing an objection to an adverse ruling generally follows the pattern of (1) making a timely, specific objection, (2) requesting an instruction to disregard, and (3) moving the trial court for a mistrial.
Standing alone, the note does not overcome this presumption. See Colburn, 966 S.W.2d at 519-520 (note questioning whether parole possible for defendant sentenced to life was alone insufficient to rebut presumption jurors followed instruction not to consider parole); Simmons v. State, 100 S.W.3d 484, 496 (Tex. App.—Texarkana 2003, pet. ref'd) ("Even if the [jury's] note constitutes evidence the jury discussed these matters at a preliminary point, we presume the jury followed the court's instructions and, thereafter, did not consider these matters in reaching their verdict."); Arceo v. State, No. 05-07-00315-CR, 2008 WL 384438, at *2 (Tex. App.—Dallas Feb. 14, 2008, no pet.) (mem. op., not designated for publication) (jury note concerning defendant's eligibility for deferred adjudication parole did not rebut presumption jurors properly followed instructions not to consider parole and good conduct time in assessing punishment); Lewis v. State, No. 07-07-0425-CR, 2008 WL 553614, at *2 (Tex. App.—Amarillo Feb. 28, 2008, no pet.) (mem. op., not designated for publication) ("While the jury asked about good time and parole in its note, that alone is not enough to rebut the presumption that it followed the trial court's directive and the instruction in the charge."). Third, Appellant did not include alleged juror misconduct in his
"The jury did not send any notes to the trial court regarding parole law and good conduct time or its effect on appellant's length of incarceration, which might indicate confusion." Hargest v. State, No. 14-15-00687-CR, 2016 WL 6238291, at *3 (Tex. App.—Houston [14th Dist.] Oct. 25, 2016, no pet.) (mem. op., not designated for publication); see Simmons v. State, 100 S.W.3d 484, 496 (Tex. App.—Texarkana 2003, pet. ref'd) ("Even if the [jury's] note constitutes evidence the jury discussed these matters at a preliminary point, we presume the jury followed the court's instructions and, thereafter, did not consider these matters in reaching their verdict."); Arceo v. State, No. 05-07-00315-CR, 2008 WL 384438, at *2 (Tex. App.—Dallas Feb. 14, 2008, no pet.) (not designated for publication) (jury note respecting defendant's eligibility for deferred adjudication parole did not rebut presumption jurors properly followed instructions not to consider parole and good conduct time in assessing punishment); Lewis v. State, No. 07-07-0425-CR, 2008 WL 553614, at *2 (Tex. App.—Amarillo Feb. 28, 2008, no pet.) (mem. op., not designated for publication) ("while the jury asked about good time and parole in its note, that alone is not enough to rebut the presumption that it followed the trial court's directive and the instruction in the charge"). "Nothing in the record suggests that the jury discussed, considered or trie
P. 33.2; TEX. R. EVID. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); Simmons v. State, 100 S.W.3d 484, 495 (Tex. App.-Texarkana 2003, pet. ref'd); see also Lomax v. State, No. 10-03-00156, 2006 WL 871723, at *8 (Tex. App.-Waco Mar. 29, 2006) (mem. op.) (not designated for publication) ("The rules of evidence and appellate procedure provide that a party may complain on appeal only of matters appearing in the record; otherwise, the party presents nothing for review."), aff'd, 233 S.W.3d 302 (Tex. Crim. App. 2007); Rodrigues v. State, No. 10-04-00191-CR, 2005 WL 2877173, at *4 (Tex. App.-Waco Nov. 2, 2005, no pet.) (mem. op.) (not designated for publication).