William Mack Johnson v. The State of Texas--Appeal from 173rd District Court of Henderson County

NO. 12-06-00370-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIAM MACK JOHNSON, APPEAL FROM THE 173RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

William Mack Johnson appeals from his conviction for aggravated assault. In two issues he argues that the trial court should have excluded certain evidence during the punishment phase of the trial and that the trial court should have granted his request to strike part of the prosecutor s argument from the record. We affirm.

Background

Because Appellant does not contest the sufficiency of the evidence, we will briefly state the facts that support the conviction. Appellant shot Thomas Howard with a rifle while Howard was in his own front yard. Appellant shot at Howard from a distance away, and Howard did not see who shot him. The two lived in the same neighborhood. The police conducted an investigation, and Appellant admitted that he had shot Howard.

A Henderson County grand jury indicted Appellant for the felony offense of aggravated assault. The grand jury also alleged in the indictment that Appellant was an habitual offender. Appellant pleaded not guilty, and a jury trial was held. The jury found Appellant guilty as charged. A separate punishment hearing was held, and Appellant pleaded true to the enhancement paragraphs in the indictment. The jury found the enhancements to be true and assessed punishment at life in prison. This appeal followed.

Admission of Evidence

In his first issue, Appellant argues that the trial court should have sustained his objection to parts of certified documents that were introduced during the punishment phase of the trial. Specifically, he argues that he was not given notice prior to trial that the State intended to introduce a document that showed Appellant had been charged previously with the offense of felon in possession of a firearm.1

Generally, a party must make a contemporaneous objection as a prerequisite to consideration of an issue on appeal. See Tex. R. App. P. 33.1(a)(1)(A). Appellant concedes that he did not object to admission of this evidence on this basis during trial. He characterizes this evidence as an unadjudicated prior offense for which pretrial disclosure was required. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(g) (Vernon 2006). Citing James v. State, 47 S.W.3d 710, 714 (Tex. App. Texarkana 2001, no pet.), Appellant argues that an objection is not required because the statute requires the State to provide notice. Appellant s reliance on James is misplaced. There was a contemporaneous objection in James when the evidence was offered. Id. at 713. Because of that objection, we can only conclude that the court meant a defendant was not required to complain at the time notice was given, or at some other time prior to trial; not that an objection at the time the evidence was offered was not required. See Roethel v. State, 80 S.W.3d 276, 280 (Tex. App. Austin 2002, no pet.) (applying James).

In this case, Appellant never claimed that he did not receive pretrial notice of this evidence and did not object on that basis when the evidence was offered.2 Accordingly, no complaint is preserved for appellate review. See Tracy v. State, 14 S.W.3d 820, 825 (Tex. App. Dallas 2000, pet. ref d). We overrule Appellant s first issue.

Limiting Instruction

In his second issue, Appellant argues that the trial court erred when it declined to instruct the jury to disregard an argument made by the prosecutor.

The prosecutor made the following argument during summation in the punishment phase of the trial: Now, hold on, we don t stop there. And what did he say in his two separate statements? He told Investigator Hanes, well, you know what, I buried that firearm. What is that? That s tampering with evidence. Appellant s counsel objected. The court sustained the objection. Counsel asked for an instruction to the jury. The court denied that request.

This is an unusual turn of events. As Appellant notes, when evidence with limited admissibility is admitted, the trial court is bound, upon request, to instruct the jury about the proper scope of the evidence. Tex. R. Evid. 105(a). There is not a similar rule for argument, but the trial court s actions had the effect of sustaining an objection to an argument, but leaving it in the record. The State argues that the trial court s first ruling was wrong, that the evidence that Appellant had buried the gun was before the jury, and that the argument was a reasonable summary of the evidence.

Proper final summation may include a summary of and reasonable deductions from the evidence, answers to the arguments of opposing counsel, and a plea for law enforcement. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). This particular argument seems to be a reasonable deduction from the evidence. However, if it was error not to give an instruction to disregard, Appellant did not suffer any harm. On the issue of harm analysis, both parties cite to Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996),3 and Appellant agrees that this issue is subject to harmless error analysis. Error is harmless unless it has a substantial and injurious effect or influence on the jury s verdict and is evaluated in light of the severity of the misconduct, the curative measures employed, and the state of the evidence absent the misconduct. See Threadgill v. State, 146 S.W.3d 654, 666-67 (Tex. Crim. App. 2004).

The severity of the misconduct, if any, is slight. We do not accept Appellant s argument that the State introduced an extraneous offense in its argument. The State s comment that burying the gun was tampering with evidence is amenable to the construction that the State was suggesting that Appellant had committed another crime. See Tex. Penal Code Ann. 37.09 (Vernon 2006) (tampering with or fabricating physical evidence). But it is also amenable to the common sense construction that Appellant simply tampered with evidence when he buried the gun he used to shoot Howard. Under either construction, the State s argument did not introduce a fact or an actual extraneous offense that was not already in the record. The State simply offered an inference from facts that were in the record.

There were no curative measures taken. As to the state of the evidence, we cannot accept Appellant s argument that the sentence assessed in this matter was longer because the State highlighted the fact that he buried the gun after he shot Howard with it. That fact was of little consequence in the trial and in the argument of the parties, and pales in comparison to the actual offense and Appellant s criminal record. Appellant was not harmed by the trial court s refusal to instruct the jury not to consider the State s argument. We overrule Appellant s second issue.

Disposition

Having overruled Appellant s two issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 The charge was taken into consideration, and thereafter dismissed pursuant to Texas Penal Code, Article 12.45, when Appellant was sentenced for another felony offense.

2 Appellant states that his trial attorney renewed the objections she had made prior to the punishment hearing at a bench conference during the hearing. This is accurate, but the present complaint was not one of her prior objections and is raised for the first time on appeal.

3 Jones pertains to a request for a limiting instruction under Rule of Evidence 105.