Rickie Marell Brooks v. The State of Texas--Appeal from 176th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-190-CR

RICKIE MARELL BROOKS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 176th District Court

Harris County, Texas

Trial Court # 630,941

O P I N I O N

Appellant Rickie Marell Brooks was charged with the felony offense of possession of a controlled substance and with having committed two prior felony offenses, to-wit: automobile theft and burglary of a motor vehicle with intent to commit theft. Appellant pleaded not guilty to the primary offense and, after trial, the jury found Appellant guilty as charged in the indictment. Appellant entered pleas of true to the allegation of the two enhancement paragraphs before the trial court, without a jury; whereupon, after a punishment hearing, the trial court made findings of true concerning the two enhancement paragraphs and assessed Appellant's punishment at seventy-five years in the Institution Division of the Texas Department of Criminal Justice. Appellant appeals to this court on two points of error.

In point of error one Appellant asserts the trial court improperly allowed in evidence at trial the fact that weapons had previously been seen by a confidential informant at the location where Appellant was arrested.

In point of error two Appellant argues that his first point should be sustained and the cause should be remanded for a new trial. We overrule both points of error and affirm the trial court's judgment.

On April 24, 1992, officers with the Houston Police Department went to a residence in Houston, Texas, in order to execute a search warrant for crack cocaine. A few days prior to the search, a confidential informant had purchased crack cocaine at this residence and, on that occasion, the informant saw a "couple [of] guns" at the residence. Prior to the search in question, evidence showed the police had received several telephone calls concerning illegal narcotics trafficking and gunfire at this residence.

State's evidence showed that when the officers entered the residence Appellant ran from the officers to a bedroom in the residence. Appellant handed something to Linda Carter, a woman who was in the bedroom, and he then sat down in a chair. Officer Kurtz of the Houston Police Department apprehended Appellant. Ms. Carter placed a plastic baggie, the object that Appellant had handed to her, into a flower pot. Officer Kurtz called to Officer Walker and told him that Ms. Carter had placed the plastic baggie into the flower pot.

A field test of the substance in the plastic baggie that Appellant had handed to Ms. Carter revealed a positive test for cocaine. A subsequent analysis of this substance showed that it was 3.7 grams of 77.1 per cent pure cocaine.

Appellant's first point of error grew out of the following procedure at trial: Officer Walker testified that a few days prior to the search, he sent a confidential informant to the residence who purchased cocaine there. Walker further testified that, "[w]hen my confidential informant went inside, he saw a couple guns inside the house at that time." At this point Appellant's counsel objected to this evidence and requested that the jury be instructed to disregard same for the reason that "[i]t's not relevant to the charge against Mr. Brooks." This objection was overruled by the trial court.

On appeal Appellant now claims that the officer's testimony presented an inadmissible extraneous offense.

An objection in the trial court that evidence is irrelevant is insufficient to preserve error as to the alleged inadmissibility of an extraneous offense. Tex. R. App. P. 52(a); Burks v. State, 876 S.W.2d 877, 899 (Tex. Crim. App. 1994); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993).

In order to properly present error on appeal, a point of error must correspond to the objection made at trial because an objection stating one legal theory may not be used to support a different legal theory on appeal. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990). Error has not been properly preserved for purposes of appeal.

Aside from the foregoing, the evidence of which Appellant complains on appeal does not implicate the Appellant in any extraneous offense. Before the rules concerning admissibility of extraneous offenses come into play, there must be some type of inadmissible evidence presented of the accused's prior criminal conduct for the error to be present. Baxter v. State, 645 S.W.2d 812, 815 (Tex. Crim. App. 1983); Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979).

Since the officer's testimony did not refer to Appellant in any way, no reversible error is shown. Barnes v. State, 876 S.W.2d 316, 326-327 (Tex. Crim. App. 1994); Martin v. State, 823 S.W.2d 726, 728 (Tex. App. Waco 1992, pet. ref'd).

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Justice James (Retired)

Affirmed

Opinion delivered and filed April 12, 1995

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