                                  NO. 07-09-00314-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                      APRIL 6, 2011


                           JAMMIE LEE MOORE, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

              NO. 57,934-E; HONORABLE DOUGLAS WOODBURN, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                        OPINION


       Appellant,    Jammie     Lee   Moore,     was    convicted    of     possession   of

methamphetamine in an amount of four grams or more but less than 200 grams,1

enhanced by a plea of true to two prior felony convictions. The jury sentenced appellant

to confinement in the Institutional Division of the Texas Department of Criminal Justice

for a period of 50 years. The trial court ordered appellant’s sentence to be served after

he had completed serving his sentence in Cause No. 55,555-E.                 Appellant has

appealed, and we will affirm the judgment of the trial court as modified.




       1
           See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010).
                            Factual and Procedural Background


       Appellant was convicted of possession of methamphetamine in an amount of four

grams or more but less than 200 grams and sentenced, after a plea of true to two prior

felony convictions, to confinement for 50 years in the ID-TDCJ.        Appellant has not

attacked the jury’s finding of guilt; therefore, only such of the factual background as is

relevant to the issues raised will be recited in this opinion.


       After the jury had found appellant guilty of the indicted offense and appellant

pleaded true to the prior felony convictions, the trial court proceeded to hear testimonial

evidence in the punishment portion of the trial. During this part of the trial, the State

called Leo Ramirez, an employee of the Texas Department of Criminal Justice (TDCJ),

as a witness. Ramirez described his position as a sergeant in the security threat group

of the TDCJ. Further, Ramirez testified that his main job involved the subject of gang

intelligence.   As part of his job, Ramirez stated he was familiar with the reports

generated at TDCJ that referenced an inmate’s participation in a prison gang.

Eventually, Ramirez testified that appellant was a member of the Aryan Brotherhood of

Texas. Upon cross-examination, Ramirez testified that appellant was transferred to

another unit prior to his last parole in an attempt to disassociate him from the gang.

However, Ramirez testified that, according to the records of TDCJ, appellant did not

successfully complete his disassociation program.


       During the conference on the court’s charge on punishment, appellant’s trial

counsel requested that the jury be informed that the sentence imposed would be a

mandatory cumulative sentence case because of appellant’s prior conviction in Cause

No. 55,555-E for the offense of possession of a controlled substance in a drug-free
                                              2
zone.2 The trial court denied the requested instruction. The jury returned a punishment

verdict of confinement for 50 years.


      Following the dismissal of the jury, the trial court was preparing to sentence

appellant to confinement for 50 years in the ID-TDCJ when the State reminded the court

that the sentence was subject to the mandatory cumulative sentencing provisions of the

Texas Health & Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(h)

(West 2010).3 The trial court then pronounced the sentence and the cumulative nature

of the sentence without objection from appellant.


      Appellant has now appealed bringing forth six issues to this court. Appellant’s

issues contend that the trial court erred in: 1) cumulating appellant’s sentence in the

instant case with another sentence, 2) refusing appellant’s requested instruction in the

punishment charge, 3) allowing evidence before the jury about appellant’s membership

in a prison gang, and 4) assessing costs and attorneys fees to be repaid. We will affirm

the judgment of the trial court in all aspects, except we will eliminate the order that

appellant repay the county the cost of his appointed attorney.


                                 Cumulative Sentencing


      Appellant’s first issue implies that the trial court’s cumulation of appellant’s

sentence was erroneous due to evidentiary sufficiency. However, upon closer reading,


      2
       Appellant’s conviction in Cause No. 55,555-E was for possession of a controlled
substance, methamphetamine, in an amount of more than four grams but less than 200
grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). Further, appellant’s
possession occurred within a drug-free zone. See id. § 481.134(c). Appellant was
sentenced to 30 years confinement in the ID-TDCJ in that case.
      3
        Further reference to the Texas Health & Safety Code Annotated will be by
reference to “section ___” or “§ ___”.
                                            3
it becomes apparent that appellant has taken that approach for one reason only: there

has been a complete procedural default on any issue related to the trial court’s

cumulative sentence order. See TEX. R. APP. P. 33.1(a). Appellant failed to voice any

objection at the time he was ordered to serve his 50 year sentence after the completion

of the sentence in Cause No. 55,555-E. To preserve a complaint for our review, a party

must have presented to the trial court a timely request, objection, or motion that states

the specific grounds for the desired ruling if they are not apparent from the context of

the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d

687, 691-92 (Tex.Crim.App. 2009).


       In order to circumvent the consequences of failing to object to the trial court’s

action in cumulating the sentences, appellant now contends that, because there was no

evidence that the punishment in Cause No. 55,555-E was increased via the drug-free

zone finding, we must reform the judgment to strike the cumulative effect of the trial

court’s order. Appellant’s point is utterly without merit. The only authority appellant

offers consists of authority for the very general proposition that challenges to the

evidentiary   sufficiency   to   support   a   verdict   need   not   be   preserved   by   a

contemporaneous objection. See Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.

2010) (dealing with a failure to object to a restitution order for repayment of attorney

fees). Appellant cites this Court to no authority for the proposition that he can now

attack a jury finding from a previous trial on a sufficiency basis.


       Appellant’s sentence was mandatorily cumulated pursuant to section 481.134(h)

which makes mandatory that punishment for a crime committed under the section may

not run concurrently with “a conviction under any other criminal statute.”             See §

                                               4
481.134(h).    “This section” refers to “Drug-Free Zones.” Id.       The conviction that

appellant is now appealing was not based upon section 481.134; therefore, it falls into

the category of “a conviction under any other criminal statute.” See Williams v. State,

253 S.W.3d 673, 678 (Tex.Crim.App. 2008). So, appellant was facing sentencing for an

offense other than a drug offense committed in a drug-free zone. As the record reflects,

the conviction in Cause No. 55,555-E was for possession of a controlled substance in a

drug-free zone.     The above referenced mandatory cumulative sentencing was,

therefore, before the trial court.    § 481.134(h).      When the trial judge cumulated

appellant’s sentences, he was applying a mandatory provision of the relevant statute.

The plain meaning of the statute is that the trial court has no discretion to do more than

he did: cumulate the sentences.       See Thompson v. State, 236 S.W.3d 787, 792

(Tex.Crim.App. 2007) (appellate courts must give effect to the plain meaning of the

statute, unless the plain meaning leads to absurd consequences). The plain meaning is

as reflected above. Appellant’s first issue is overruled.


                                      Jury Instruction


       In his second issue, appellant contends that the trial court erred when it refused

to give a requested instruction to the jury that appellant’s sentence would have to be

served consecutively. Appellant’s theory is that the fact that appellant had to serve his

sentence consecutively was something the jury should be allowed to consider in order

to make an informed decision about the punishment to be given to appellant. Appellant

cites the Court to Haliburton v. State, 578 S.W.2d 726 (Tex.Crim.App. 1979), for the

apparent proposition that the requested instruction should have been given. Haliburton

involved a jury sending a note out to the trial court during deliberations inquiring about

                                             5
whether or not the defendant would serve the sentences in the two cases tried together

concurrently. Id. at 728. The trial judge answered in the affirmative. Id. After being

convicted, the defendant appealed claiming that it was an abuse of discretion for the

trial court to have given the supplemental charge and that the error was harmful. The

Court of Criminal Appeals held that the trial court did not abuse its discretion in giving

the supplemental charge regarding whether the sentences would be served

concurrently. Id. at 729.


      From this holding, appellant now asks this Court to rule that the converse action

of a trial court–refusing to give a charge advising the jury that the sentences would be

served consecutively–would be error. This issue has been addressed by other courts of

appeals since the Haliburton decision.       In Levy v. State, 860 S.W.2d 211, 213

(Tex.App.—Texarkana 1993, pet. ref’d), the Texarkana court held that refusal to answer

the jury’s question about whether sentences being considered would run concurrently or

consecutively was not error.     As the citation reflects, the Texas Court of Criminal

Appeals refused a petition for review in the case. Such was the decision in Stewart v.

State, 221 S.W.3d 306, 316 (Tex.App.—Fort Worth 2007, no pet.), in which the court

held that the refusal to advise the jury that the sentence in question would be served

consecutively was not error.     In Clay v. State, 102 S.W.3d 794, 798 (Tex.App.—

Texarkana 2003, no pet.), the Texarkana court again visited this issue and said it would

have been error for the trial court to give the requested instruction about the sentences

being served consecutively. We believe that the opinions referenced above reflect the

correct state of the law. Accordingly, we overrule appellant’s second issue.




                                            6
                                   Gang Membership


       During the punishment phase of the trial, the State proffered the testimony of Leo

Ramirez, an employee of the TDCJ. During his testimony, Ramirez testified without

objection that appellant was a member of the Aryan Brotherhood of Texas. There was

no request to limit the jury’s consideration of Ramirez’s testimony at the time it was

admitted. Subsequently, when the court’s charge on punishment was prepared, there

was no request from appellant to limit the consideration of this evidence. In appellant’s

third issue, he now complains that the failure of the trial court to instruct the jury that

such evidence could be considered only for purposes of appellant’s reputation and

character was egregious error. The record also reveals that the State’s witness was

only allowed to testify about appellant’s membership in the gang. Because the trial

court sustained appellant’s objections, Ramirez was not allowed to testify about any of

the gang’s alleged activities.


       Initially, we must determine if appellant has waived any alleged error by either

failing to object to the evidence that appellant was a member of the Aryan Brotherhood

of Texas when it was offered.4 After the evidence was admitted, appellant did not

request that the jury’s consideration of Ramirez’s testimony be limited in any manner.

Finally, there was no request for any instruction in the court’s charge on punishment.


       First, we address the admission of the evidence.        We review a trial court’s

decision to admit or exclude evidence under an abuse of discretion standard of review.

See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.Crim.App. 2006). However, before

       4
         Appellant’s only objection came when Ramirez tried to testify about what the
constitution of the Aryan Brotherhood said and what the function of the gang was inside
the prison.
                                            7
we even get to the application of that standard of review, we must ascertain whether the

question of the admissibility of the evidence has been preserved for appeal.                To

preserve a question regarding admissibility of evidence for appeal, the party challenging

the admission must make a timely objection that places the trial court on notice as to

what the objection is. See TEX. R. APP. P. 33.1(a); Butler v. State, 872 S.W.2d 227, 236

(Tex.Crim.App. 1994). Therefore, it appears that appellant has waived any objection to

the complained of testimony.


       Next, even if we assume that appellant can now lodge some appellate objection

to the admission of the testimony, we are faced with the fact that appellant also did not

request any limiting instruction at the time the evidence was admitted. In Williams v.

State, the Texas Court of Criminal Appeals addressed that issue and held that the

failure to request a limiting instruction at the time the evidence was admitted means that

the evidence can be used by the jury for all purposes and relieves the trial judge of any

requirement of giving a limiting instruction in the court’s charge. 273 S.W.3d 200, 230

(Tex.Crim.App. 2008).       Accordingly, the failure of the trial court to give a limiting

instruction is not error.


       Assuming, arguendo, that the failure of appellant to object to admission of the

evidence at issue and the failure to request a limiting instruction on the evidence at the

time of admission of the same does not bar this Court’s ability to consider his argument,

appellant has still failed to demonstrate that the failure to give the instruction limiting the

jury’s use of the gang membership was egregious error. For purposes of our analysis,

egregious error is error that denies appellant a fair and impartial trial. See Almanza v.

State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). To support his position that the

                                              8
failure of the trial court to give a limiting instruction was egregious, appellant cites the

Court to Dawson v. Delaware, 503 U.S. 159, 163, 112 S.Ct. 1093, 116 L.Ed.2d 309

(1992).     However, Dawson is distinguishable from our case in a number of ways.

Initially, we observe that Dawson was a murder case and the evidence of gang

membership was offered during the punishment phase while the jury was considering

life in prison or the death sentence. Id. at 161. Second, in Dawson, after the State had

given notice of intent to use the appellant’s gang affiliation against him in the

punishment phase, appellant objected to the admission of the evidence. Id. at 162.

Before the punishment phase of the trial began, the parties entered into a stipulation

that the State would not call their expert witness on gang activities and appellant would

agree to a limited stipulation about the Aryan Brotherhood being a white racist prison

gang and that appellant had Aryan Brotherhood tattooed on his hand. Id. The essence

of the U.S. Supreme Court’s ruling was that the narrowness of the stipulation left the

evidence totally without relevance to the sentencing procedure.       Id. at 165. Because

the evidence was not relevant, it should not have been admitted. However, the Court in

Dawson did not address the issue of harm, because that issue was not before it. Id. at

168-69. Appellant simply concludes, without any real analysis, that egregious harm is

apparent.


       However, such is not the case. In the case before the Court, appellant was

convicted of a second-degree felony offense enhanced by two prior felony convictions.

These facts subjected appellant to a punishment range of imprisonment in the ID-TDCJ

for life or any term of not more than 99 years or less than 25 years. The jury assessed

a sentence of 50 years. When trying to ascertain if an appellant has suffered egregious

harm, we are instructed to review the entire record to determine if appellant has not had
                                             9
a fair and impartial trial. Almanza, 686 S.W.2d at 171. Our review of the record reveals

that appellant received a 50-year sentence, which is approximately the mid-range of the

punishment range possible. Our review of the final argument reveals that the State

mentioned the Aryan Brotherhood one time in final arguments. The State concentrated

its argument on the fact that this was appellant’s third conviction. Therefore, we find

that, even if appellant did not waive the issue procedurally, there has been no showing

of egregious harm. Id. Appellant’s issue is overruled.


                              Attorney Fees and Court Costs


       Appellant’s fourth, fifth, and sixth issues attack various aspects of the trial court’s

order regarding costs and, specifically, attorney fees. First, appellant contends that the

trial court must orally pronounce the requirement to reimburse attorney fees before the

same can be included in the judgment.          He next contends that a clerk’s action of

attaching a certified copy of the bill of costs that includes the attorney fees provision to

the judgment does not constitute an order to pay costs. Finally, he contends that there

is no evidence that appellant has the ability to repay the county for the cost of his

attorney.


       We will sustain appellant’s final issue.        As we have held previously, the

requirement that a recipient of legal services repay the county the costs of an appointed

attorney must be based on some evidence that the recipient have the financial

resources to offset some or all of the cost of appointed counsel. See TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (West Supp. 2010); Mayer v. State, 274 S.W.3d 898, 901

(Tex.App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex.Crim.App. 2010). In Mayer,

after determining that there was no evidence to support the order to pay attorney fees,
                                             10
we ordered the fees stricken from the judgment.      Id. at 902.   The Texas Court of

Criminal Appeals affirmed the decision to strike the offending attorney fees from the

judgment rather than remanding the case for a new hearing on punishment. Mayer, 309

S.W.3d at 557.    Accordingly, we sustain appellant’s sixth issue and order that the

requirement to repay the court appointed attorney fees be deleted from the judgment.


                                     Conclusion


      We affirm the judgment of the trial court as modified regarding the repayment of

attorney fees.




                                                     Mackey K. Hancock
                                                          Justice


Publish.




                                          11
