Todrick Morris aka Taurus Jamal Phillips v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Memorandum Opinion filed November 23, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00765-CR

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TODRICK MORRIS a/k/a TAURUS JAMAL MORRIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 773,201

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M E M O R A N D U M O P I N I O N

Todrick Morris a/k/a Taurus Jamal Morris appeals a conviction for possession of a controlled substance with intent to deliver[1] on the ground that the trial court erred in refusing to charge the jury on appellant=s eligibility for community supervision. We affirm.

Appellant=s sole issue contends that the trial court improperly determined that he was not eligible for community supervision based on his prior juvenile adjudications and, thus, erred by refusing his request to charge the jury on his eligibility for community supervision. We review alleged jury charge error by considering: (1) whether error existed in the charge; and, if so, (2) whether sufficient harm resulted from the error to compel reversal. Thanh Cuong Ngo v. State, __ S.W.3d __, 2005 WL 600353, at *3 (Tex. Crim. App. 2005). The defendant bears the burden of proving eligibility for community supervision. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999); Leday v. State, 983 S.W.2d 713, 724 (Tex. Crim. App. 1998). To do so, a defendant must file a sworn motion with the trial court prior to trial that he has not been convicted of a felony in any state, and the jury must find that the information in the motion is true. See Tex. Code Crim. Proc. Ann. art. 42.12 ' 4(d)(3), (e) (Vernon Supp. 2005). In addition, there must be actual proof at trial of a defendant=s eligibility for community supervision in support of the motion. See Palasota v. State, 460 S.W.2d 137, 140-41 (Tex. Crim. App. 1970); Walker v. State, 440 S.W.2d 653, 659 (Tex. Crim. App. 1969). In the absence of evidence to support the motion, the jury need not be charged on the issue of community supervision. Tenery v. State, 680 S.W.2d 629, 640-41 (Tex. App.CCorpus Christi 1984, pet. ref=d).

In this case, appellant properly filed a sworn motion that he had not previously been convicted of a felony, but did not offer any evidence at trial in support of this motion, either before the jury or in an offer of proof.[2] The trial court=s refusal to submit the requested instruction to the jury in the absence of such evidence was not error. Accordingly, appellant=s issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed November 23, 2005.

Panel consists of Justices Fowler, Edelman and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty and sentenced him to 35 years confinement and a $1,000 fine.

[2] Nor does appellant complain that the trial court ruled any such evidence inadmissible.