Opinion filed June 28, 2019




                                         In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-17-00149-CR
                                    __________

                  RONNY MARK ALDRIDGE, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 106th District Court
                             Dawson County, Texas
                         Trial Court Cause No. 16-7692


                      MEMORANDUM OPINION
      The jury convicted Ronny Mark Aldridge of the offense of possession of less
than one gram of a controlled substance in a drug-free zone,1 found an enhancement
allegation to be true, and assessed punishment at confinement for ten years. The
trial court sentenced Appellant accordingly. We affirm.



      1
       TEX. HEALTH & SAFETY CODE ANN. §§ 481.115(b), 481.134(d) (West 2017).
      There is no challenge to the sufficiency of the evidence. We will briefly
outline the evidence for contextual purposes and for later reference when we discuss
Appellant’s issues on appeal.
      At the time of the offense that is the subject of this appeal, Officer Dustin
Alderman was a patrol officer with the Lamesa Police Department. At the time of
trial, Alderman was a deputy with the Ector County Sheriff’s Department. We will
refer to him by the title that he held at the time of the offense.
      While Officer Alderman was on patrol in Lamesa at around 1:35 on the
morning of the offense, he saw Appellant’s vehicle and noticed that the license plate
light on the vehicle was not functioning. Officer Alderman stopped Appellant on a
road that was adjacent to a middle school.
      After Officer Alderman stopped Appellant and made contact with him,
Officer Alderman asked Appellant for identification and proof of insurance. At this
point, Officer Alderman smelled a strong odor of “burnt” marihuana in Appellant’s
vehicle. Officer Alderman asked Appellant to get out of the vehicle. For safety
reasons, Officer Alderman performed a “routine pat search” to check for weapons.
During the pat-down, Officer Alderman noticed a small baggie that was “close to
falling out” of Appellant’s pocket and in plain view. Officer Alderman believed that
the substance in the baggie was methamphetamine.              After Officer Alderman
collected the baggie and the substance in it, he searched Appellant’s vehicle. During
the search of the vehicle, Officer Alderman found marihuana, a marihuana pipe, a
bag of hydrocodone pills, a box made to hold small digital scales of the type used to
weigh narcotics, and a glass pipe of the kind “frequently used to smoke
methamphetamine.” Officer Alderman arrested Appellant and charged him with
possession of methamphetamine in a drug-free zone.
      Appellant raises two issues on appeal. In his first issue on appeal, Appellant
complains of jury charge error in the punishment phase of the trial. In his second
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issue on appeal, Appellant asserts that the trial court abused its discretion when it
admitted into evidence a probable cause affidavit and a police report, each of which
had been prepared by Officer Alderman.
      Appellant was not present when the jury returned its verdict in the
guilt/innocence phase of the trial and neither was he present for the punishment
phase. The record (outside the presence of the jury) reflects that, while the jury was
deliberating its verdict on guilt/innocence, Appellant ostensibly went outside to
smoke but left the courthouse and did not return for the remainder of the trial.
Although we can assume that the jury was aware of Appellant’s absence, the trial
court did not inform the jury why Appellant was not present.
      In its charge to the jury at the conclusion of the punishment phase of the trial,
in the voluntary absence of Appellant, the trial court charged the jury (in accordance
with Article 37.07, section 4(c) of the Texas Code of Criminal Procedure) as follows:
              Under the law applicable in this case, the defendant, if sentenced
      to a term of imprisonment, may earn time off the period of incarceration
      imposed through the award of good conduct time. Prison authorities
      may award good conduct time to a prisoner who exhibits good
      behavior, diligence in carrying out prison work assignments, and
      attempts at rehabilitation. If a prisoner engages in misconduct, prison
      authorities may also take away all or part of any good conduct time
      earned by the prisoner.
             It is also possible that the length of time for which the defendant
      will be imprisoned might be reduced by the award of parole.
            Under the law applicable in this case, if the defendant is
      sentenced to a term of imprisonment, he will not become eligible for
      parole until the actual time served plus any good conduct time earned
      equals one-fourth of the sentence imposed. Eligibility for parole does
      not guarantee that parole will be granted.
           It cannot accurately be predicted how the parole law and good
      conduct time might be applied to this defendant if he is sentenced to a
      term of imprisonment, because the application of these laws will
      depend on decisions made by prison and parole authorities.
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            You may consider the existence of the parole law and good
      conduct time. However, you are not to consider the extent to which
      good conduct time may be awarded to or forfeited by this particular
      defendant. You are not to consider the manner in which the parole law
      may be applied to this particular defendant.
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(c) (West Supp. 2018).
      Appellant contends that the trial court erred when it gave that portion of the
charge to the jury because it contained an erroneous instruction regarding
Appellant’s parole eligibility. Appellant concedes that he did not object to that
portion of the charge, but he contends that he suffered egregious harm when the trial
court submitted it.
      We do not agree that the trial court erred when it submitted the parole
eligibility charge. Section 481.134(d) of the Texas Health and Safety Code provides
for enhancement of punishment when a defendant is convicted of certain offenses,
such as possession of drugs in a drug-free zone. HEALTH & SAFETY § 481.134(d).
Section 508.145(e) of the Texas Government Code applies to “[a]n inmate serving
a sentence for which the punishment is increased under Section 481.134, Health and
Safety Code,” and mandates that such an inmate would not be “eligible for release
on parole until the . . . actual calendar time served, without consideration of good
conduct time, equals five years.” TEX. GOV’T CODE ANN. § 508.145(e) (West Supp.
2018).   Article 37.07, section 4(c) differs from Section 508.145(e) in that
Article 37.07, section 4(c) provides that “[the defendant] will not become eligible
for parole until the actual time served plus any good conduct time earned equals one-
fourth of the sentence imposed.” Both provisions apply to Appellant.
      The State cites to Luquiz v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002), in
support of its claim that the trial court did not commit error when it instructed the
jury. In Luquis, the Texas Court of Criminal Appeals dealt with a similar argument
to the one that Appellant makes in this appeal. There, the court addressed a like

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provision in Article 37.07, section 4(a) of the Texas Code of Criminal Procedure.
The court held that, “because the trial judge in this case instructed the jury according
to the legislative dictate expressed in article 37.07, section 4(a), he did not commit
error.” Luquis, 72 S.W.3d at 363. Likewise, here, the legislature has mandated that,
in the circumstances of this case, the trial court give the very instruction that it gave.
See CRIM. PROC. art. 37.07, § 4(c). The trial court did not err when it followed the
legislative mandate.
      Even if we were to hold that the jury charge was erroneous, we would not
reverse the judgment of the trial court. Appellant did not object to this portion of
the jury charge. Therefore, we review any error for egregious harm. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Martin v. State, 570 S.W.3d
426, 435 (Tex. App.—Eastland 2019, pet. ref’d). Egregious harm occurs when an
error that affects “the very basis of the case, deprives the defendant of a valuable
right, or vitally affects a defensive theory.” Stuhler v. State, 218 S.W.3d 706, 719
(Tex. Crim. App. 2007). To determine whether an error constitutes egregious harm,
we must consider the entire jury charge, the state of the evidence, the arguments of
counsel, and any other relevant information contained in the record. Olivas v. State,
202 S.W.3d 137, 146 (Tex. Crim. App. 2006). The purpose behind our review is to
determine whether there is any actual, as opposed to theoretical, harm to the accused.
Almanza, 686 S.W.2d at 174.
      Officer Alderman testified that he found what he thought was, and in fact
turned out to be, methamphetamine in Appellant’s pocket. Officer Alderman also
found marihuana, a marihuana pipe, a glass pipe of the kind frequently used to smoke
methamphetamine, a box used to hold digital scales of the type normally used to
weigh drugs, and a baggie of hydrocodone pills in the vehicle that Appellant was
driving. All of those items were possessed in a drug-free zone. Additionally, during


                                            5
the punishment phase of the trial, the prosecutor introduced evidence of Appellant’s
two prior convictions.
      During closing arguments at the punishment phase of trial, the prosecutor
referred to the instruction at issue in this case. The prosecutor told the jury, “I can’t
tell you that he might not do every minute of whatever sentence you give him or he
might not, okay? But this is not one of those crimes where he has to do like a solid
one-half of his sentence.” The prosecutor said that, even though parole was not a
certainty, “he is eligible” when “his time, plus whatever good credit conduct time,
. . . adds up to one-fourth,” and “I want you to take that into consideration . . . .”
“[I]f you give him ten, fifteen, twenty years in the penitentiary, there’s always that
possibility that if he can straighten up and fly right, if he can rehabilitate himself a
little bit, he might not have to do all that . . . .” “But in the meantime, what you
write on that paper in that verdict form says how you feel as a community, as a
group.” The prosecutor also explained that the mere possibility of parole “doesn’t
mean he will get it.”
      The prosecutor also made appeals to the community’s standards, and he asked
the jury to send a message about those standards through the defendant’s
punishment.      He also emphasized Appellant’s prior criminal conduct and
punishments for that conduct.
      In its jury charge, the trial court instructed the jury “not to consider the manner
in which the parole law may be applied to this particular defendant.” In the absence
of evidence to the contrary, we will presume that the jury followed the instructions
of the trial court.   Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).
There is no contrary evidence in this record to rebut that presumption.
      When we consider the entire jury charge; the state of the evidence, including
Appellant’s prior convictions, the items of contraband possessed by Appellant at the
time of his arrest, and the location at which he possessed the items; and the
                                           6
arguments of counsel, we cannot say that any error in the jury charge on parole
caused egregious harm to Appellant. We overrule Appellant’s first issue on appeal.
      In his second issue on appeal, Appellant contends that the trial court abused
its discretion when it admitted a probable cause affidavit and a police report prepared
by Officer Alderman. During the guilt/innocence phase of trial, Appellant’s counsel
cross-examined Officer Alderman about, and had him read, brief portions of the
contents of Officer Alderman’s probable cause affidavit and police report.
Officer Alderman had earlier testified that he turned off the lights on his patrol
vehicle to be sure that the license plate light was not functioning on the vehicle that
Appellant was driving. Appellant’s counsel’s questions basically dealt with the fact
that Officer Alderman did not include in either document anything relative to his
turning off the lights on his patrol vehicle for that purpose; the questions were brief
and specific.
      Upon redirect examination by the State, Officer Alderman explained that he
turned his lights off so that he could check the light on the license plate on the vehicle
that Appellant was driving. The State also offered the probable cause affidavit and
the police report into evidence, without limitation, under the rule of optional
completeness. Appellant’s counsel made a general objection that the documents
contained “too many extraneous circumstances.” The trial court admitted the
affidavit and the report because defense counsel “certainly opened the door and
questioned about these.”
        On appeal, Appellant maintains that the affidavit and the report were not
admissible because the State failed to satisfy the requirements of Rule 107 of the
Texas Rules of Evidence, the rule of optional completeness. TEX. R. EVID. 107.
However, that was not the objection that Appellant made at trial. When the State
offered the remaining portions into evidence, Appellant’s general objection did not
contain any reference to any of the language in Rule 107. An objection must be
                                            7
sufficiently specific to preserve error. TEX. R. APP. P. 33.1(a)(1)(A). A general
objection does not preserve error. Alvarez v. State, 536 S.W.2d 357, 361 (Tex. Crim.
App. 1976); Pizano v. State, No. 01-12-00994-CR, 2013 WL 3155954, at *2 (Tex.
App.—Houston [1st Dist.] June 20, 2013, no pet.) (mem. op., not designated for
publication). Because Appellant lodged only a general objection to the admissibility
of the affidavit and the report, he has not preserved error. See TEX. R. APP. P. 33.1;
Alvarez, 536 S.W.2d at 361.
      However, even if we were to hold that the trial court erred and that Appellant
preserved the error, any error would be harmless under Rule 44.2(b) of the Texas
Rules of Appellate Procedure. TEX. R. APP. P. 44.2(b). We ignore nonconstitutional
errors that do not “affect substantial rights.” TEX. R. APP. P. 44.2(b); Casey v. State,
215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Specifically, we may not reverse the
judgment of the trial court for nonconstitutional error, such as erroneously admitted
evidence under Rule 107, if, after examining the record as a whole, we have a “fair
assurance that the error did not have a substantial and injurious effect or influence
in determining the jury’s verdict.” Casey, 215 S.W.3d at 885. When we make that
determination, “we consider all the evidence that was admitted at trial, the nature of
the evidence that supports the verdict, the character of the alleged error, and how the
evidence might be considered in connection with other evidence in the case.”
Baiza v. State, 487 S.W.3d 338, 346 (Tex. App.—Eastland 2016, pet. ref’d). We
may also “consider the trial court’s instructions to the jury, the theories advanced in
the case by the parties, closing arguments, jury voir dire, and the extent to which the
State emphasized the error.” Id. Our “focus is not on whether the outcome of the
trial was proper despite the error, but whether the error had a substantial or injurious
effect or influence on the jury’s verdict.” Barshaw v. State, 342 S.W.3d 91, 93–94
(Tex. Crim. App. 2011).


                                           8
        Prior to the admission of the affidavit and report, Officer Alderman had
already testified, without objection, about the traffic stop, the methamphetamine,
and the other contraband that he found. The State offered the contraband into
evidence, and the State’s forensic scientist verified that the substance contained
methamphetamine. The evidence of Appellant’s guilt was overwhelming.
        We have examined the evidence that was admitted at trial, the nature of the
evidence in support of the verdict, the nature of the alleged error, and the manner in
which the questioned evidence might be considered in connection with other
evidence in the case. See Baiza, 487 S.W.3d at 346. Based upon our review, we
have a fair assurance that, even if the evidence was not admissible, it did not have a
substantial and injurious effect or influence in determining the jury’s verdict. See
Casey, 215 S.W.3d at 885. We overrule Appellant’s second issue on appeal.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


June 28, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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