                             NUMBER 13-18-00238-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


GERALD LAMONT PEOPLES,                                                               Appellant,

                                              v.

THE STATE OF TEXAS,                                                                   Appellee.


                      On appeal from the 24th District Court
                           of Victoria County, Texas.


                            MEMORANDUM OPINION
   Before Chief Justice Contreras and Justices Hinojosa and Tijerina
                  Memorandum Opinion by Justice Tijerina

       A jury convicted appellant Gerald Lamont Peoples of tampering with physical

evidence, a third-degree felony. 1       See TEX. PENAL CODE ANN. § 37.09(c).             Peoples


        1 The jury acquitted Peoples of aggravated assault with a deadly weapon. See TEX. PENAL CODE

ANN. § 22.02(a)(2).
received a sentence of fifty years’ incarceration. 2 By four issues, Peoples contends that

the charge was erroneous (issues one and two), and the trial court improperly admitted

and excluded evidence (issues three and four). 3 We affirm.

                                          I.      JURY CHARGE

        By his first and second issues, Peoples contends that there was error in the

punishment jury charge because it included “habitual felony” language. 4 We review

alleged charge error for abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122

(Tex. Crim. App. 2000).

        In his first issue, Peoples argues that “[t]he charge is not supported by the law

since there exists neither an habitual felony offender penal code definition nor statute.”

However, § 12.42 of the Texas Penal Code is entitled “Penalties for Repeat and Habitual

Felony Offenders on Trial for First, Second, or Third Degree Felony.” TEX. PENAL CODE

ANN. §§ 12.42, 36.14 (setting out that the trial court must deliver to the jury “a written

charge distinctly setting forth the law applicable to the case”). This statute exists setting

out that the sentence of a repeat and habitual felony offender will be enhanced under

certain circumstances. Id. Specifically, as applicable here, § 12.42(d) sets out that

        if it is shown on the trial of a felony offense other than a state jail felony
        punishable under Section 12.35(a) that the defendant has previously been
        finally convicted of two felony offenses, and the second previous felony
        conviction is for an offense that occurred subsequent to the first previous
        conviction having become final, on conviction the defendant shall be
        punished by imprisonment in the Texas Department of Criminal Justice for
        life, or for any term of not more than 99 years or less than 25 years.

        2   The punishment was enhanced under the habitual felony offender statute. See id. § 12.35(d).
        3   We have renumbered and reorganized the issues for purposes of our analysis.
        4 Peoples acknowledges that he did not object to the charge on any basis. Nonetheless, whether
Peoples objected is relevant only if we find error in the charge as that determines our standard of reviewing
the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).


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Id. Thus, § 12.42(d) clearly states that the punishment for a third-degree felony shall be

enhanced to a minimum of twenty-five years if there are two prior felony convictions, with

the second conviction being for an offense that occurred after the first conviction became

final. Id.

        Here, Peoples pleaded “true” to the State’s allegations that he had previously been

convicted of two prior felonies and that the previous second felony conviction was for an

offense that occurred subsequent to the first previous conviction having become final. 5

See id. Therefore, pursuant to § 12.42(d) of the Texas Penal Code, Peoples was required

to “be punished by imprisonment in the Texas Department of Criminal Justice for life, or

for any term of not more than 99 years or less than 25 years.” See id.; Burns v. State,

695 S.W.2d 235, 236 (Tex. App.—Corpus Christi–Edinburg 1985, no pet.) (explaining that

“[w]hen [the] appellant pled ‘true’ to the indictment, the truth of the enhancement

allegations was resolved . . .” and “[p]unishment in accordance with the statute was then

mandatory”); see also Harvey v. State, 611 S.W.2d 108, 112 (Tex. Crim. App. 1981)

(“Where one prior conviction is alleged in the indictment for enhancement purposes and

the accused chooses to enter a plea of ‘true’ or ‘guilty’ to the allegation at the punishment

stage of the trial, then it is permissible for the trial court to charge the jury on punishment

as though the primary offense, for which the accused has been convicted, carries the

enhancement punishment, as was done here.”).                   We cannot conclude under these

circumstances that the jury charge is erroneous. Accordingly, we overrule Peoples’s first




        5The State alleged that Peoples committed the offenses of robbery and aggravated robbery. See
TEX. PENAL CODE ANN. §§ 29.02, 29.03. Peoples pleaded “true” to the State’s allegations at the punishment
phase of the trial in open court in front of the jury.


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issue.

         By his second issue, as we understand it, Peoples argues that the charge was

erroneous because the State failed to amend its indictment to include its second

enhancement allegation and instead notified him of the second enhancement allegation

by relying upon a “defective” notice of intention to use extraneous offenses against the

defendant. Specifically, Peoples claims that the notice did not include “the words ‘finally

convicted’” and was therefore defective. Peoples does not provide substantive argument

with citation to appropriate authority supporting a conclusion that his claim has merit. See

TEX. R. APP. P. 38.1(i). Therefore, he has waived his argument. Accordingly, we overrule

Peoples’s second issue.

                                      II.     EVIDENTIARY RULINGS

         By his third issue, Peoples contends that the trial court improperly admitted State’s

Exhibit 5, which is a picture of the aggravated assault complainant with a child. 6 By his

fourth issue, Peoples contends that the trial court erred by excluding testimony of the

complainant offered by Peoples at the punishment phase of trial.

A.       Standard of Review

         We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see also

Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990) (explaining that the trial court

has broad discretion in determining whether to admit evidence and stating “[t]he exercise

of that discretion will not be disturbed unless a clear abuse of that discretion is established

by the record”). A trial court abuses its discretion if it acts arbitrarily or unreasonably,


         6   The complainant is Peoples’s ex-wife.


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without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1990) (en banc). When considering a trial court’s decision to

admit or exclude evidence, we will not reverse the trial court’s ruling unless it falls outside

the “zone of reasonable disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d

922, 926 (Tex. Crim. App. 2003).

B.     Exhibit 5

       By his third issue, Peoples contends that the trial court improperly admitted State’s

Exhibit 5, which is a picture of the aggravated assault complainant with a child. See TEX.

R. EVID. 403 (providing that the trial court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of among other things unfair prejudice).

Specifically, Peoples argues the picture is prejudicial because there is a child in it.

       First, Peoples argues that the trial court failed to engage in the required 403

balancing test. In Santellan v. State, the appellant argued that the trial court failed to

conduct the required 403 balancing test. 939 S.W.2d 155, 173 (Tex. Crim. App. 1997).

The Santellan court stated that “the trial court did not explicitly refuse to do the test, [and]

it simply overruled appellant’s Rule 403 objections.” Id. The court reviewed the record

and determined that there was nothing in it indicating that the trial court did not perform a

balancing test. Id. In Williams v. State, the Texas Court of Criminal Appeals, addressing

the same argument, stated that “a trial judge is not required to sua sponte place any

findings he makes or conclusions he draws when engaging in this [Rule 403 balancing]

test into the record, nor did appellant request such to be affirmatively shown” and that “a

judge is presumed to engage in the required balancing test once Rule 403 is

invoked . . . .” 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). The Williams Court refused



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to hold that silence of the record implies otherwise. Id.

       Here, as in Santellan, the trial court did not refuse to conduct the required Rule

403 balancing test; instead, it simply overruled Peoples’s Rule 403 objection. There is

nothing in this record indicating that the trial court did not perform the balancing test, and

we presume that the trial court engaged in the required balancing test once Peoples

invoked rule 403. See id.; Yates v. State, 941 S.W.2d 357, 367 (Tex. App.—Waco 1997,

pet. ref’d) (“By overruling the Rule 403 objection, the court necessarily conducted the

balancing test when it considered the objection.”).

       Next, Peoples argues that his objection pursuant to Rule 403 should have been

sustained and that “[i]t is obvious that the sole purpose of the child’s image was to inflame

the jury and deny [him] the right to a fair trial.”

       After overruling his rule 403 objection, the trial court granted Peoples’s request to

provide a limiting instruction to the jury. The trial court instructed the jury as follows:

       Members of the jury, in this next photograph, you'll see basically a woman
       and a child. The purpose of that is simply to show you what the woman
       looked like, her appearance, her demeanor, et cetera. Please disregard the
       child other than the child is present, as you see; but that is not the purpose
       the State is offering it for. It is the actual appearance, et cetera, of the
       woman in the photograph.

       Even assuming, without deciding, that the evidence was improperly admitted, “a

prompt instruction to disregard will ordinarily cure the prejudicial effect and the jury is

presumed to follow the trial court’s instruction to disregard the improperly admitted

evidence in the absence of evidence indicating the members of the jury failed to do so.”

State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.—Dallas 2006, pet. ref’d); see also Thrift

v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (“On appeal, we generally presume

the jury follows the trial court’s instructions in the manner presented.”). Here, Peoples

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has not rebutted the presumption that the jury followed the trial court’s instruction. See

State, 202 S.W.3d at 402. Therefore, we must presume that the jury disregarded the

child in the picture as instructed and considered State’s Exhibit 5 solely for the purpose

of showing what the complainant “looked like, her appearance, her demeanor, etc.”

Accordingly, any error in admitting the photograph was rendered harmless by the trial

court’s instruction. See id. We overrule Peoples’s third issue.

C.     Mitigation Testimony

       By his fourth issue, Peoples contends that the trial court improperly excluded

testimony from the aggravated assault complainant during the punishment phase of the

trial. Specifically, Peoples argues that the trial court should have allowed the complainant

to state the “number” of years she believed Peoples deserved to be sent to prison.

       At the punishment phase of the trial, the following occurred:

       [Peoples]:           [Complainant], I’ve got a question for you; and . . . I
                            want you to think about this question before you
                            answer. . . . In your mind, what is justice for you?

       [Complainant]:       He deserves to go do some time for what he did, but
                            he don’t deserve a lot of time.

       [Peoples]:           Okay.

       [Complainant]:       And he is a good man and he was a good man when
                            he wasn’t on the drugs and I honestly don’t think he
                            deserves a lot of time.

       [Peoples]:           Would you go any further in a number or no?

       [The State]:         Your Honor, I’m going to object to that question. It’s
                            been . . . asked and answered.

       [Peoples]:           Your Honor, her response was (inaudible).

       [The Court]:         I’m going to sustain the objection.



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         [Peoples]:           Okay. Pass the witness, Judge.

         To preserve an appellate argument that the trial court improperly excluded

evidence, the proponent must make an offer of proof, “which sets forth the substance of

the proffered evidence.” Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009).

“The offer of proof may consist of a concise statement by counsel, or it may be in question-

and-answer form.” Id. “If in the form of a statement, the proffer ‘must include a reasonably

specific summary of the evidence offered and must state the relevance of the evidence

unless the relevance is apparent, so that the court can determine whether the evidence

is relevant and admissible.’” Id. at 889–90.

         Here, Peoples did not make an offer of proof when the trial court sustained the

State’s objection. Therefore, we conclude that this issue has not been preserved for our

review. See id. at 889; see also TEX. R. APP. P. 33.1(a). We overrule Peoples’s fourth

issue.

                                     III.   CONCLUSION

         We affirm the trial court’s judgment.

                                                               JAIME TIJERINA,
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of December, 2019.




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