Leland Milburn v. State

• Court: Court of Appeals of Texas
• Decided: June 16, 2005
• Docket: 07-04-00100-CR
• Status: Published

Opinion

NO. 07-04-0100-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JUNE 16, 2005

______________________________

LELAND RAY MILBURN

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 31^st DISTRICT COURT OF HEMPHILL COUNTY;

NO. 2533; HON. STEVEN R. EMMERT, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J. ⁽¹⁾

Leland Ray Milburn appeals his conviction for possessing a controlled substance. His two issues concern whether the trial court erred in refusing to instruct the jury on probation and in admitting an exhibit evincing a prior misdemeanor conviction for possessing marijuana. We affirm.

Underlying the first issue is the question of whether appellant had previously been convicted of a felony. Though previously convicted of one days before being tried for the offense giving rise to this appeal, appellant argues that the conviction could not be deemed final since it was still subject to appeal. That is, appellant does not argue that the conviction was appealed but that the time within which an appeal could be perfected had not lapsed. And, because of this, the prior conviction could not be considered final for purposes of determining appellant's entitlement to probation. We disagree.

The Court of Criminal Appeals recently held: ". . . when there is no evidence that a defendant ever filed a notice of appeal, a conviction is deemed to be final on the date of sentencing." Jones v. State, 77 S.W.3d 819, 820 (Tex. Crim. App. 2002). ⁽²⁾ We are cited to no evidence of record indicating that, at the time this cause was tried, the prior conviction of which appellant speaks was appealed. Nor does our review of the record uncover any such evidence. So, because one cannot receive probation if previously convicted of a felony, see Tex. Code Crim. Proc. Ann. art. 42.12, §4(e) (Vernon Supp. 2004-2005) (stating that a defendant is eligible for community supervision or probation if before trial begins the defendant files a sworn motion stating that he has not previously been convicted of a felony, among other things), and nothing of record illustrates that his prior felony conviction had been appealed, then the trial court was not obligated to instruct the jury on probation.

As to the admission of the prior misdemeanor conviction for possessing marijuana, we find the error, if any, was waived. This is so because by the time appellant objected, he, through his counsel, had already solicited testimony about the conviction. Having personally introduced evidence of the conviction earlier, appellant cannot complain when the State also addresses the subject. Heidelberg v. State, 36 S.W.3d 668, 672 (Tex. App. -Houston [14^th Dist.] 2001, no pet.)

Moreover, the ground underlying appellant's complaint on appeal was not mentioned at trial. Here, he relies on Rule 609 of the Texas Rules of Evidence to assert that only a prior felony conviction could be used to impeach a witness and the conviction at issue was simply a misdemeanor. Yet, appellant said nothing of Rule 609 below, relying instead upon Rules 403 and 404(b). Because the grounds uttered now were unmentioned at trial, they were and are waived. See Tex. R. App. P. 33.1; Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App.1997) (holding that the grounds asserted on appeal must comport with those raised at trial otherwise they are waived).

Accordingly, we overrule both issues of appellant and affirm the trial court's judgment.

Brian Quinn

Chief Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).

2. Appellant asks that we not follow Jones. Given that it is an opinion of the Court of Criminal Appeals, we must follow it.

0 L.Ed.2d 889 (1968). Appellant did not file a written pretrial motion to suppress evidence. However, in a hearing outside the presence of the jury before the State began its case, the court entertained the testimony of Hawkins regarding his investigative detention of appellant on June 6, 2002. Following the testimony, appellant urged the court to suppress any testimony or evidence relating to the complainant's driver's license. Appellant argued that Hawkins exceeded the scope of the investigative detention, a Terry stop, when he removed the driver's license from appellant's back pocket. As a result, appellant continued, any subsequent evidence, including statements by appellant, should be suppressed as fruit of the poisonous tree. The trial court denied his motion to suppress the driver's license, but granted it "as to the manner in which the driver's license was obtained." Appellant then requested, and the trial court granted him, a running objection to any line of questioning regarding the driver's license. At trial, however, when the State offered the complainant's driver's license into evidence, appellant announced, "We have no objection, Your Honor." The license was then admitted into evidence.

It is well settled that when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Cr.App. 1986). However, if at trial the defendant states he has "no objection" when the evidence is offered, he waives his admissibility complaint. Welch v. State, 993 S.W.2d 690, 694 (Tex.App.-San Antonio 1999, no pet.); but cf. Taylor v. State, 82 S.W.3d 134, 137 (Tex.App.-San Antonio 2002, no pet.) (stating "no further objections" impliedly references the pretrial motion to suppress and, thus, does not waive error). Here, in spite of the running objections he requested and received at the pretrial hearing, appellant expressly announced he had no objection to the admission of the driver's license when it was offered by the State at trial. As a result, he has presented nothing for our review. Appellant's first point of error is overruled.

By his second point, appellant claims the trial court failed to instruct the jury, simultaneous to the admission of the prior convictions, on the limited purpose for which the convictions were admitted. We disagree. Outside the presence of the jury, appellant objected to the admission of the prior convictions on the basis of remoteness. Appellant requested, in the alternative, that the jury be provided with a contemporaneous limiting instruction when the convictions were admitted. The court overruled both objections. When the State attempted to impeach appellant, in the jury's presence, with evidence of his prior convictions for five felonies and one misdemeanor theft, appellant again objected to their admission and, alternatively, requested a contemporaneous limiting instruction. The court overruled the objection and announced it would deliver that instruction in the court's charge instead. The court then told the jury:

With regard to the request for a contemporaneous instruction to the jury, the jury will be instructed in the Charge by the Court that these matters are being used for the purpose of impeachment only of the - and for the determination of the credibility of the witness at this time.

Thus, while the court purported to overrule appellant's objection, it, nonetheless, instructed the jury on the limited purpose for which the jury could consider appellant's prior convictions. Thus, appellant received all that he requested, and cannot be heard to complain on appeal.

Assuming, arguendo, the trial court failed to provide a contemporaneous limiting instruction, we conclude that error, if any, did not affect appellant's substantial rights because it had no substantial or injurious effect or influence in determining the jury's verdict. See Tex. R. App. P. 44.2(b); see also King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App. 1997). The prior convictions were introduced through appellant, the last witness to testify on the last day of trial. Then, following a short conference outside the presence of the jury, the trial court charged the jury on the law applicable to the case, including the limited purpose for which the jury could consider appellant's prior convictions. Given the short amount of time that passed from the introduction of the prior convictions to the trial court's reading of the instructions to the jury, we conclude the trial court's error, if any, did not affect a substantial right. Lemmons v. State, 75 S.W.3d 513, 525 (Tex.App.-San Antonio 2002, pet. ref'd). Appellant's second point of error is overruled.

Accordingly the judgment of the trial court is affirmed.

Don H. Reavis

Justice