Clarence Albert Alexander, Jr. v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED 4 OCTOBER 1990

NO. 10-89-265-CR

Trial Court

# 89-818-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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CLARENCE ALBERT ALEXANDER, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

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O P I N I O N

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This is an appeal by defendant Alexander from conviction for delivery of cocaine (less than 28 grams), enhanced by two prior felony convictions, for which he was assessed 2 years in the Texas Department of Corrections.

Defendant appeals on one point of error which relates to the punishment phase only: "The trial court erred by failing to instruct the jury that they must consider each enhancement allegation separately and that a different punishment range would apply if they found only one enhancement allegation to be true beyond a reasonable doubt as opposed to a finding that none or both were true".

The trial court's charge on punishment phase properly instructed the jury that punishment for the offense of delivery of cocaine is by confinement in the Texas Department of Corrections for not less than 5 years nor more than 99 years, or life, and in addition a fine not to exceed $20,000.

The court also properly instructed the jury that if they found both enhancement paragraphs to be true beyond a reasonable doubt then the punishment would be life or any term of years not to exceed more than 99 years or less than 25 years in the Texas Department of Corrections.

The court did not instruct the jury that they should consider each enhancement separately and that they could find none, one, or both enhancement provisions to be true beyond a reasonable doubt. The court further failed to instruct the jury that in the event they found only one enhancement to be true beyond a reasonable doubt then the punishment would be life, or for any term of years not more than 99 or less than 15 years in the Texas Department of Corrections plus a fine in any amount not to exceed $10,000.

Counsel for defendant objected to the charge as follows, "The Second Main Charge does not include all the options and possibilities that could arise in the jury deliberations of the issues presented to them", which objection the trial court overruled.

Rule 103(a)(1), Texas Rules Criminal Evidence, mandates that an objection must state the "specific ground" relied upon, and article 36.14, V.A.C.C.P. mandates that an objection should "distinctly specify each ground". See Also Turner v. State, Ct.Crim.Appls, 726 S.W.2d 140, which mandates that an objection to the charge inform the trial court of specific defects, stating exactly what is objected to and the grounds for the objection.

Defendant did not preserve his complaint.

Further, the State proved up both alleged prior felony convictions by both penitentiary packets and fingerprints of defendant; and defendant offered no objection or evidence that he was not the subject of the two prior convictions. Thus defendant was not harmed.

Moreover, the charge required the jury to find both enhancement paragraphs to be true before any enhancement could occur. Thus defendant actually benefited from the court's charge.

Defendant's point is without merit and is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice McDonald (Retired)]