Tracy Linn Holmes v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00119-CR Tracy LInn Holmes, Appellant v. The State of Texas, Appellee From the 249th District Court Johnson County, Texas Trial Court # F35587 MEMORANDUM Opinion The trial court revoked Tracy Linn Holmes’s community supervision for engaging in organized criminal activity in October 2003 and sentenced him to five years’ imprisonment. Holmes filed a habeas application purportedly “under Article 11.072 of the Code of Criminal Procedure” in December 2004. Holmes appeals the trial court’s denial of that application. However, because Holmes’s habeas application is in fact a post-conviction application, we will dismiss the appeal. Article 11.072 “establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.” Tex. Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005). Here, despite the recitations in the habeas application, Holmes seeks habeas relief from a final felony conviction. “Only the Court of Criminal Appeals has jurisdiction to grant post-conviction relief from an otherwise final felony conviction.” In re Stone, 26 S.W.3d 568, 569 (Tex. App.—Waco 2000, orig. proceeding) (per curiam) (citing Bd. of Pardons & Paroles ex rel. Keene v. Ct. of Apps. for 8th Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding)). Article 11.07 establishes the procedures to follow when seeking post-conviction habeas relief. Id. The Clerk of this Court notified Holmes that this appeal appears subject to dismissal for want of jurisdiction because it is a post-conviction habeas proceeding and that the appeal would be dismissed for want of jurisdiction if a response showing grounds for continuing the appeal was not filed within 10 days. Holmes has not filed a response. Accordingly, the appeal is dismissed. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna Appeal dismissed Opinion delivered and filed April 13, 2005 Do not publish [CR25] 37.07, section 3(a)(1). For these reasons, the court abused its discretion by admitting the evidence regarding the handgun. We must now determine whether this error requires reversal. The improper admission of evidence of an extraneous offense is non-constitutional error. Carter, 145 S.W.3d at 710; Peters, 93 S.W.3d at 354. Thus, we ask whether this error affected Overton’s substantial rights. See Tex. R. App. P. 44.2(b). We “consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Shook v. State, 172 S.W.3d 36, 41 (Tex. App.—Waco 2005, no pet.); accord Geuder v. State, 142 S.W.3d 372, 376 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). We may also consider the jury instructions, the State’s theory of the case, any defensive theories, closing arguments, voir dire, and the extent to which the State emphasized the erroneously admitted evidence. See Motilla, 78 S.W.3d at 355-56; Shook, 172 S.W.3d at 41; Geuder, 142 S.W.3d at 376. In this analysis, we decide whether “the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). If we have “’a grave doubt’ that the result [of the underlying proceeding] was free from the substantial influence of the error, then [we] must treat the error as if it [had a substantial influence on the outcome].” Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). Because Overton pleaded guilty before the jury, the State no doubt abbreviated its presentation of evidence. The State did not refer to the handgun in its opening statement, focusing instead on the quantity of cocaine seized, the negative impact of drugs in the community, and Overton’s prior record. The State’s punishment evidence had four primary components: (1) Overton’s prior criminal history, including a prior felony conviction for aggravated assault with a deadly weapon (for allegedly shooting the complainant in the face)[4] and prior misdemeanor convictions for riot, deadly conduct, evading arrest/detention, and criminal trespass; (2) the fact that Overton was arrested with a greater quantity of cocaine than anyone before in Navarro County (according to the detective’s recollection); (3) the negative impact of drugs in the community; and (4) the handgun found in the trunk. In closing argument, Overton’s counsel commented that there was no evidence connecting Overton to the handgun and that the jury should not just assume it was his because he was carrying drugs. He asked for a minimum sentence because this was Overton’s first drug-related conviction. The prosecutor emphasized Overton’s prior convictions, focusing in particular on his conviction for shooting someone in the face, which, in the prosecutor’s words, established him as “a dangerous guy.” The prosecutor encouraged the jury to consider the quantity of cocaine seized, the handgun found in the trunk, and the negative impact of drugs in the community, and, although he mentioned the handgun three times during his closing argument, he placed the greatest emphasis on this being the largest cocaine arrest in county history, Overton’s prior convictions (all from Navarro County), and the negative impact of drugs in the community. Though the punishment of seventy-five years’ imprisonment and a $10,000 fine is at the high end of the applicable range, the jury had ample legitimate grounds for assessing this punishment, and the prosecutor did not place excessive emphasis on the handgun evidence. Thus, having reviewed the record as a whole, we have fair assurance that the erroneous admission of the handgun evidence did not have a substantial and injurious effect or influence in determining the jury’s verdict at the punishment phase. See Garcia v. State, 126 S.W.3d 921, 927-28 (Tex. Crim. App. 2004); Bain v. State, 115 S.W.3d 47, 51-52 (Tex. App.—Texarkana 2003, pet. ref’d); see also Peters, 93 S.W.3d at 354-55 (improper admission of evidence regarding sawed-off shotgun did not affect verdict of guilt even though prosecutor referred to this evidence in closing argument). Accordingly, we overrule Overton’s third issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the judgment without issuing a separate opinion) Affirmed Opinion delivered and filed February 13, 2008 Do not publish [CRPM] [1] Because of Overton’s guilty plea, all the evidence was introduced during the punishment phase. [2] However, Overton did not ask the court to strike Turner’s initial response that drug dealers don’t want to meet in Collin County “[b]ecause of the sentences they get.” [3] The United States Supreme Court was quoting its earlier decision in Enmund v. Florida. See Booth v. Maryland, 482 U.S. 496, 502, 107 S. Ct. 2529, 2533, 96 L. Ed. 2d 440 (1987) (quoting Enmund v. Florida, 458 U.S. 782, 801, 102 S. Ct. 3368, 3378, 73 L. Ed. 2d 1140 (1982)). [4] The prosecutor characterized the shooting in this manner in his questions but the witness being questioned about the prior conviction observed that the documentation offered in evidence does not indicate where the complainant was shot.