
Opinion issued May 27, 2004


     












In The
Court of Appeals
For The
First District of Texas




NO. 01-03-00191-CR




MARK EDWARD PRINCE, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from County Criminal Court at Law No. 13
Harris County, Texas
Trial Court Cause No. 1137804




O P I N I O N

          A jury found appellant, Mark Edward Prince, guilty of possession of a
controlled substance and assessed punishment at 365 days’ confinement and a $4,000
fine.  The trial court imposed sentence, suspended it, and placed appellant on two
years’ community supervision.  In seven issues on appeal, appellant asks this Court
(1) does Texas recognize an affirmative defense of selective and vindictive
prosecution; (2) did appellant show by a preponderance of the evidence that his
prosecution was brought for vindictive purposes; (3) did appellant show by
exceptionally clear evidence that his prosecution was selectively brought; (4) did the
trial court err in denying his motion to quash the information; (5) did the trial court
err in denying his request for a jury instruction on vindictive prosecution; (6) did the
trial court err in denying his request for a jury instruction on selective prosecution;
and (7) does the trial court’s denial of his motion to quash and his request for jury
instructions require reversal.
          We affirm.
Facts and Procedural History
          Appellant was employed as a police officer for the City of Katy Police
Department from October 1990 to December 17, 2001.  During appellant’s
employment, Katy Police Captain Gay Dickerson  received information that appellant
had attempted to purchase Vicodin tablets from other officers in the department.  
          On August 17, 2001, Captain Dickerson arranged for a local businessman to
deliver a bag holding clothing and a prescription bottle containing fifteen Vicodin
tablets to appellant while appellant was working the front desk at the police station. 
The businessman told appellant that he had seen someone leave the bag on the street
corner and walk away.  
          When the businessman left, appellant searched through the bag and retrieved
the Vicodin tablets.  He was then dispatched to an accident scene.  Upon inspecting
the bag after appellant’s departure, Captain Dickerson discovered that the prescription
bottle was missing.  Captain Dickerson notified police supervisors, who followed
appellant to the accident scene to which he had been dispatched and discovered the
prescription bottle in appellant’s patrol car.  Appellant had ingested four of the tablets
on the way to the accident scene.
          Appellant was charged by information for possession of a controlled substance 
under cause number 1095415.  Prior to trial, however, the State re-filed its case
against appellant under cause number 1137804.
Motions to Quash InformationIn his second, third, fourth, and seventh issues on appeal, appellant contends
that the trial court erred in denying his motions to quash the information because the
State practiced selective prosecution and vindictive prosecution.  Specifically,
appellant contends that he showed (1) by exceptionally clear evidence that the
prosecution was selectively brought against him, and (2) by a preponderance of the
evidence that his prosecution was brought for vindictive purposes.  Thus, appellant
asserts, the trial court abused its discretion in denying his motions to quash.
 
          “It is a long-standing rule in this State that, absent an adverse ruling of the trial
court, which appears in the record, there is no preservation of error.”  Brosky v. State,
915 S.W.2d 120, 129 (Tex. App.—Fort Worth 1996, pet. ref’d) (quoting Darty v.
State, 709 S.W.2d 652, 655 (Tex. Crim. App. 1986)). Although the record includes
three separate motions to quash the  information in cause number 1095415—and the
trial court agreed to consider the motions after the case was re-filed under cause
number 1137804—the record does not contain a ruling by the trial court on any of
those motions.  By failing to present this Court with evidence of an adverse ruling to
his motions to quash the information, appellant has waived any error arising from the
trial court’s refusal to grant any such motions.
          We hold that appellant has failed to preserve error in regard to the trial court’s
refusal to quash his information.
          We overrule appellant’s second, third, and fourth issues on appeal.  We also
overrule appellant’s seventh issue on appeal to the extent that it relates to the trial
court’s refusal to quash his information.
Right to Jury Instructions
          In his first, fifth, sixth and seventh issues on appeal, appellant contends that the
trial court erred in refusing his request for jury instructions on selective prosecution
and vindictive prosecution.  More specifically, appellant contends that selective
prosecution and vindictive prosecution should be considered by this Court as
affirmative defenses for which he was entitled to a jury instruction upon the
introduction of evidence sufficient to establish a prima facia case for each defense,
respectively.  
          A “defense” that is not recognized or specifically labeled as either a defense
or an affirmative defense by the legislature does not warrant a jury instruction. 
Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998).  Neither selective
prosecution nor vindictive prosecution has been designated by the Texas Legislature
as either a defense or an affirmative defense.
  A defendant who believes he is being
subjected to selective or vindictive prosecution may bring the issues to the court’s
attention; however, he is not entitled to have the jury consider the issues as they are
not proper issues for the jury to consider.  See Galvan v. State, 988 S.W.2d 291, 295
(Tex. App.—Texarkana 1999, pet. ref’d).  Thus, appellant was not entitled to a jury
instruction on either selective prosecution or vindictive prosecution.  See Roise v.
State, 7 S.W.3d 225, 243 (Tex. App.—Austin 1999, pet. ref’d).
          We hold that the trial court did not err in denying appellant a jury instruction
on either selective prosecution or vindictive prosecution.
          We overrule appellant’s first, fifth and sixth issues on appeal.  We also overrule
appellant’s seventh issue on appeal to the extent it relates to the trial court’s refusal
to give jury instructions on selective and vindictive prosecution.
Conclusion
          We affirm the judgment of the trial court.
 
 


                                                             Laura Carter Higley
                                                             Justice



Panel consists of Justices Taft, Hanks, and Higley.

Publish.  Tex. R. App. P. 47.2(b).
 
