Adam Sledge v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00153-CR
Adam SLEDGE,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6863
Honorable Mary Roman, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 31, 2003

AFFIRMED

Adam Sledge was convicted of possessing a forged check with knowledge that it was forged and with intent to pass the check in violation of section 32.21(a)(1)(C) of the Texas Penal Code, sentenced to two years in the Texas Department of Criminal Justice - State Jail Division, and fined $10,000. We affirm.

1. Sledge first argues the trial court erred by denying his motion for a mistrial and in failing to instruct the jury to disregard the prosecutor's statement during opening that "the Defendant stole Ms. Allen's check," because Sledge was indicted not for theft but for forgery; and, in any event, the State did not introduce any evidence tending to establish that Sledge stole the check. As the State points out, however, Sledge is not entitled to raise this complaint on appeal because he did not ask the trial court to instruct the jury to disregard the prosecutor's statement. See Thompson v. State, 12 S.W.3d 915, 920-21 (Tex. App.-Beaumont 2000, pet. ref'd).

2. Sledge next argues the trial court erred in allowing a copy of the purportedly forged check to be superimposed in the instructions in the jury charge, because it constituted an impermissible comment on the weight of the evidence in violation of article 36.14 of the Texas Code of Criminal Procedure. However, as the State points out, Sledge did not object to the charge on this basis; consequently, the error, if any, is not reversible unless it resulted in "egregious harm." See Ortiz v. State, 93 S.W.3d 79, 91-92 (Tex. Crim. App. 2002), petition for cert. filed, 71 U.S.L.W. 3531 (U.S. Feb. 11, 2003) (No. 02-1189). Egregious harm does not exist when the trial court merely incorporates a copy of the check in the instructions so that the court's charge accurately sets out the tenor of the check alleged to have been forged. Cf. Cline v. State, 685 S.W.2d 760, 763 (Tex. App.-Houston [1st Dist.] 1985, no pet.) (holding that the failure to include in charge the back side of the allegedly forged check is not fundamental error when the charge includes the face of the allegedly forged check).

Sarah B. Duncan, Justice

Do not publish