Matthew Scott Brown v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00078-CR ______________________________ MATTHEW SCOTT BROWN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 04-0008X Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION Matthew Scott Brown pled guilty to possessing more than 400 grams of methamphetamine, as charged in the indictment, and submitted the case to a jury for assessment of punishment. See Tex. Health & Safety Code Ann. § 481.115(a), (f) (Vernon 2003). After hearing the evidence and the arguments of counsel, the jury assessed Brown's punishment at twenty-five years' imprisonment. The jury denied Brown's request for community supervision. In a single point of error, Brown contends on appeal that his twenty-five-year sentence is disproportionate to his crime under the Eighth Amendment to the United States Constitution and under Article I, Section 13 of the Texas Constitution. We overrule Brown's point of error and affirm the trial court's judgment. The State contends Brown did not present this issue to the trial court and thereby failed to preserve this issue for review by this Court. To preserve the issue of whether a defendant's sentence is disproportionate under the Eighth Amendment or under Article I, Section 13 of the Texas Constitution, the defendant must make a timely objection before the trial court. See Tex. R. App. P. 33.1(a); Hookie v. State, 136 S.W.3d 671, 679–80 (Tex. App.—Texarkana 2004, no pet.); see also U.S. Const. amend. VIII; Tex. Const. art. I, § 13. After the trial court read the jury's verdict, the court asked if there was anyone who disagreed with the verdict. The court received no response or objection. The trial court then asked Brown if there was any legal reason why the jury's sentence should not be imposed, to which his counsel answered, "No, Your Honor." The trial court then imposed the punishment assessed by the jury and informed Brown regarding his right to appeal. The State is correct: Brown did not object to the sentence on the ground that it was disproportionate to his crime, nor did he do so on any other ground, at the time the trial court imposed the sentence. Accordingly, Brown did not preserve this issue for our review. We affirm the trial court's judgment. Donald R. Ross Justice Date Submitted: December 9, 2004 Date Decided: December 17, 2004 Do Not Publish ; [State]: Okay. How about, how about an antique house located on Sixth Street here in Longview, you know, lamps, chairs, dishes; have anything to do with that one? [Dixon]: No, ma'am. [State]: No? Okay. How about Square Deal Transmission located on Tyler Street in Longview? [Defense counsel]: I'm going to object to this line of questioning. [State]: Your Honor, he indicated that he wanted to cooperate. I'm just -- [Court]: I'm going to allow you to question him. Ultimately, Dixon denied having anything to do with any wrongdoing at Square Deal Transmission or with any other wrongdoing posed by the State. Prior bad acts or uncharged offenses can be admissible during the punishment phase of a trial. After a finding of guilt, or as in this case, a plea of guilty, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004). Therefore, if any prior bad acts or uncharged offenses by Dixon had been proven beyond a reasonable doubt by the State, the jury could have properly considered them in assessing punishment. When such evidence is tendered during the punishment phase, (1) the trial court is to act as gatekeeper to determine whether the evidence may be submitted to the jury for consideration, (2) the jury "is to determine whether or not the State has proved the extraneous offenses beyond a reasonable doubt," and (3) a request that the jury be so instructed should be honored. Mitchell v. State, 931 S.W.2d 950, 953–54 (Tex. Crim. App. 1996). No such instruction was requested, so none was required. To be sure, no actual evidence harmful to Dixon came from this question or from the line of questioning. Dixon denied involvement in any of the added offenses posed by the State during the punishment phase. But, of course, an impression must have been made in the minds of the jurors due to the time and energy spent by the State asking Dixon whether he committed or knew about various offenses. The clear import of the State's line of questioning and comments made in the jury's presence was that Dixon would be considered cooperative only if he admitted committing at least some of the offenses posed by the State's questions and that his repeated denials constituted a failure to cooperate, time after time, in the presence of the jury. In Booth v. State, 90 Tex. Crim. 240, 234 S.W. 888, this court . . . said: "It is in exceedingly rare instances where this court would feel called upon to reverse a case solely because counsel may have propounded an improper question." We quote from Ard v. State, 101 Tex. Crim. 545, 276 S.W. 263, as follows: "The asking of a question whose affirmative answer might be hurtful to the accused would ordinarily present no error . . . unless the answer is given, and, if given and answered in the negative, . . . no error would be made to appear." Fritts v. State, 119 Tex. Crim. 412, 42 S.W.2d 609, 612 (1931). Finally, appellant urges us to reverse because the state's attorney asked appellant two questions: one, if he had asked the officers on the way to the jail to get him a hamburger; the other, if he had shown any remorse for having blasted Frank Olsson six times. The court sustained general objections to these questions and the witness gave no answer to either of them. Appellant's counsel did not ask the court for instructions to disregard. He obtained all the relief he sought, and cannot now complain. Washington v. State, Tex.Crim.App., 484 S.W.2d 721; Burks v. State, Tex.Crim.App., 432 S.W.2d 925. Foster v. State, 493 S.W.2d 812, 814 (Tex. Crim. App. 1973); see also Burks v. State, 876 S.W.2d 877, 902 (Tex. Crim. App. 1994). Here, Dixon made one general objection, only to the line of questioning, without specifying any basis, and made no request for an instruction or for a mistrial. Error was not preserved. In addition, sua sponte, the trial court orally gave a limiting instruction, and included it in the jury charge, directing the jury to consider testimony about extraneous offenses only if it found from the evidence beyond a reasonable doubt that extraneous offenses had been proven. Such an instruction is consistent with Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). A limiting instruction cures an error unless the error is such that it suggests the impossibility of withdrawing the erroneous impression from the minds of the jurors. Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996); Moore v. State, 882 S.W.2d 844 (Tex. Crim. App. 1994). We presume a jury follows the instructions given by the trial court. Ross v. State, No. 09-01-517-CR, 2002 Tex. App. LEXIS 8974 (Tex. App.—Beaumont Dec. 19, 2002) (per curiam) (not designated for publication), cert. denied, No. 03-49, 2003 U.S. LEXIS 7003 (Oct. 6, 2003). Because no reversible error has been shown, we overrule Dixon's second point of error. We affirm the judgment of the trial court. Josh R. Morriss, III Chief Justice Date Submitted: May 11, 2004 Date Decided: June 14, 2004 Do Not Publish