William Henry Krieg v. State

Affirmed and Memorandum Opinion filed November 9, 2006 Affirmed and Memorandum Opinion filed November 9, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-01276-CR ____________ WILLIAM HENRY KRIEG, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1034044 M E M O R A N D U M   O P I N I O N A jury convicted appellant of sexual assault of a child and assessed punishment at 50 years in prison. In two issues, appellant argues the trial court erred in (1) failing to properly instruct the jury, and (2) denying appellant=s motion to suppress. We affirm. Factual and Procedural Background Appellant met the fourteen-year-old complainant while the complainant was walking to his girlfriend=s house. After meeting with the complainant six or seven times, appellant offered the complainant $300 if he would permit appellant to perform fellatio on him. After appellant performed fellatio on the complainant, appellant gave the complainant $220 and several baggies of marijuana, which appellant claimed were worth $80. A few days later, appellant again performed fellatio on the complainant. The complainant=s mother found the marijuana in the complainant=s bedroom along with appellant=s business card. The complainant told his father what he had done to receive the marijuana, and identified the man who had given it to him. The complainant=s parents called the police and instructed the complainant to call appellant. Officer Mark Alva arrived at the complainant=s house to investigate the parents= report. While Officer Alva was at the house, appellant drove by in his truck. The complainant identified appellant as the man who had given him the marijuana. Alva interviewed the complainant and learned how the complainant had obtained the marijuana. Alva arrested appellant and searched his truck. The search revealed approximately two grams of crack cocaine and several items of drug paraphernalia. Appellant was subsequently convicted of sexual assault of a child and sentenced to 50 years in prison. Jury Instruction In his first issue, appellant complains that the trial court erred during the punishment phase in failing to instruct the jury on the State=s burden of proof concerning evidence of extraneous offenses. During the punishment phase, the State introduced evidence of the cocaine found in appellant=s vehicle at the time of his arrest. The trial court did not instruct the jury that it could not consider evidence of extraneous acts unless it found beyond a reasonable doubt that the acts were committed by appellant. Article 37.07, section 3(a) of the Code of Criminal Procedure requires such an instruction regardless of whether the defendant requests the instruction or objects to its omission. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Because appellant failed to object to the trial court=s error, to obtain a reversal, he must show the error caused him to suffer egregious harm. See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Egregious harm exists when the error was so harmful as to deny the defendant a fair and impartial trial. Tex. Code Crim. Proc. Ann. art. 36.19; Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998). To determine whether appellant suffered egregious harm, we view the error in light of the entire jury charge, state of the evidence, argument of counsel, and any other relevant information revealed by the record as a whole. Mann, 964 S.W.2d at 641. Texas courts have found that the omission of a reasonable doubt instruction has not caused egregious harm in various situations, including: when the defendant did not challenge the sufficiency of the evidence connecting him to the extraneous offense at trial or on appeal; when the evidence connecting the defendant to the extraneous conduct is Aclear-cut@; when the punishment assessed is at the low end or in the middle of the available punishment range. See Johnson v. State, 181 S.W.3d 760, 766 (Tex. App.CWaco 2005, pet. ref=d). In this case, appellant admitted he had a drug problem during his testimony at the punishment phase of trial. Appellant did not at trial, nor on appeal, challenge the sufficiency of the evidence connecting him to the extraneous offense. The only challenge appellant made to the evidence at trial and on appeal was a challenge to the search of his car that led to the seizure of the cocaine. Further, at the punishment phase, evidence was admitted consisting of appellant=s stipulation to the following convictions: delivery of a controlled substance, possession of a controlled substance, aggravated robbery, two theft convictions, possession of marijuana, driving while intoxicated, and driving with a suspended license. Appellant particularly urges he was harmed by the improper jury charge because the prosecutor requested punishment of "not less than 40 years" confinement, but the jury assessed punishment at 50 years= confinement. The range of punishment appellant was facing was 25 to 99 years= confinement. Tex. Penal Code Ann. ' 12.42(d). Fifty years is in the middle range of punishment. Based on our review of the record, we conclude appellant was not denied a fair and impartial trial as a result of the trial court=s failure to include an instruction on the State=s burden of proof. Accordingly, we overrule appellant=s first issue. Motion to Suppress In his second issue, appellant contends the trial court erred in denying his motion to suppress the evidence found in the search of his vehicle. At the punishment phase, appellant objected to the admission of the cocaine and drug paraphernalia found in his vehicle following his arrest. Appellant alleges the search of his vehicle was an improper inventory search. In reviewing a trial court=s ruling on a motion to suppress, we use a bifurcated standard, giving almost total deference to the trial court=s determination of historical facts supported by the record, and reviewing de novo the trial court=s application of the law of search and seizure. O=Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000). When, as here, the trial court does not make explicit findings of fact, we view the evidence in a light most favorable to the trial court=s ruling and assume the trial court made all necessary findings to support its ruling that are supported by the evidence. Carmouche, 10 S.W.3d 323 327B28 (Tex. Crim. App. 2000). We will uphold the trial court=s ruling on any theory supported by the law, even if that theory was not advanced at trial by the State. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). Appellant contends the trial court should have granted his motion to suppress because the State failed to prove the search of appellant=s vehicle was conducted as a valid inventory search and according to police policies and procedures. Specifically, appellant claims police failed to explore reasonable alternatives to impounding his vehicle. However, a search incident to a lawful arrest is an exception to the warrant requirement and requires no additional justification. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005). Once an officer has probable cause to arrest, he may search the passenger compartment of a vehicle as a search incident to that arrest. State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). The cocaine and paraphernalia were discovered in a search of appellant=s vehicle following his arrest. Because the evidence was seized as a result of the lawful search incident to an arrest, the trial court did not err in denying the motion to suppress. We overrule appellant=s second issue. We affirm the judgment of the trial court. /s/ Margaret Garner Mirabal Justice Judgment rendered and Memorandum Opinion filed November 9, 2006. Panel consists of Chief Justice Hedges and Justices and Seymore and Mirabal.[1] Do Not Publish C Tex. R. App. P. 47.2(b). [1] Justice Margaret Garner Mirabal sitting by assignment.