                                      NUMBER 13-08-00216-CR

                                      COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG

JACK EUGENE WASHMON A/K/A
JACK EUGENE WASHBURN,                                                                          Appellant,

                                                         v.

THE STATE OF TEXAS,                                                                             Appellee.


                          On appeal from the 117th District Court
                                of Nueces County, Texas.


                                  MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Yañez and Benavides
                Memorandum Opinion by Justice Yañez
        Appellant, Jack Eugene Washmon a/k/a Jack Eugene Washburn, was convicted of

one count of possession of four grams or more but less than 200 grams of heroin, a first-

degree felony,1 and two counts of possession of cocaine.2 The jury found that Washmon

was a habitual offender and assessed punishment of concurrent sentences of thirty-eight,

thirty-three, and twenty-five years' confinement respectively.3 By three issues, Washmon



        1
            See T EX . H EALTH & S AFETY C O D E A N N . § 481.115 (Vernon Supp. 2009).
        2
          W ith respect to the counts for cocaine possession, W ashm on was convicted of possessing four
gram s or m ore but less than 200 gram s of cocaine, a first-degree felony, and one gram or m ore but less than
four gram s of cocaine, a second-degree felony. See id.
        3
            See T EX . P EN AL C O DE A N N . § 12.42 (Vernon Supp. 2009).
contends that the trial court erred: (1) in denying his challenge for cause during voir dire;

(2) in admitting inadmissible hearsay; and (3) by denying his objection to the State's motion

to enhance punishment. We affirm.4

                                                 I. VOIR DIRE

        By his first issue, Washmon contends that the trial court erred in denying his

challenge for cause of a veniremember who Washmon claims was biased as a matter of

law. Washmon argues that veniremember 26 "clearly stated that [Washmon's] 'drug

problem' would make her 'more bias [sic] against him'" and that veniremember 26 was not

rehabilitated.

        To preserve error with respect to a trial court's denial of a challenge for
        cause, an appellant must: (1) assert a clear and specific challenge for
        cause; (2) use a peremptory strike on the complained-of veniremember; (3)
        exhaust his peremptory strikes; (4) request additional peremptory strikes; (5)
        identify an objectionable juror; and (6) claim that he would have struck the
        objectionable juror with a peremptory strike if he had one to use.[5]

        Here, the record shows that Washmon asserted a clear and specific challenge for

cause against veniremember 26, used a peremptory strike against her, and exhausted his

peremptory strikes. However, Washmon neither identified a specific objectionable juror

to the trial court nor claimed that he would have struck that identified objectionable juror

with an additional peremptory strike.6 Therefore, Washmon has not preserved error. We

overrule Washmon's first issue.

                                                 II. HEARSAY

        By his second issue, Washmon contends that the trial court improperly admitted

hearsay into evidence. Specifically, Washmon complains that after defense counsel



          4
            Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.
        5
          See Allen v. State, 108 S.W .3d 281, 282 (Tex. Crim . App. 2003) (citing Nelson v. State, 848 S.W .2d
126, 134 (Tex. Crim . App. 1992)); see also Medrano v. State, No. 13-05-702-CR, 2006 Tex. App. LEXIS
7241, at *4 (Tex. App.–Corpus Christi Aug. 17, 2006, pet. ref'd) (m em . op., not designated for publication).
        6
          See Allen, 108 S.W .3d at 282-83 (concluding that because the appellant failed to identify the
objectionable juror to the trial court,"he waived his right to com plain on appeal that the trial judge erroneously
overruled his challenge for cause").

                                                        2
attempted to impeach the State's witness, David Rjasko, with statements from his police

report, the trial court erroneously allowed the State to read the entire report into the record

under the doctrine of optional completeness.

A. Relevant Facts

       During direct examination by the State, Rjasko testified that he observed Washmon

commit a traffic violation and relayed that information to other officers, who eventually

stopped Washmon; Rjasko assisted with the stop. According to Rjasko, he was informed

that, during the traffic stop, the officers found drug paraphernalia—a syringe. Rjasko

testified that Washmon consented to a search of his vehicle, and during that search,

Rjasko found contraband hidden inside a "speaker box" on the floorboard of the vehicle.

       While cross-examining Rjasko, Washmon's defense counsel read the following

portion of Rjasko's police report: "I then asked Arrestee No.1 for consent, verbal, to search

the vehicle. Arrestee No. 1 stated, 'Yes, you can search the vehicle.' After receiving verbal

consent from Arrestee, myself and S.O. LaRock began to search the vehicle." Defense

counsel then asked, "It appears clear, does it not, that that is the justification that you gave

for your search of the vehicle; isn't that correct?," and Rjasko responded, "I asked

[Washmon] for consent, sir, and [he] consented."                   Pursuant to the rule of optional

completeness, the trial court allowed the State to read the entire police report into the

record.

B. Standard of Review and Applicable Law

       We review a trial court's admission of evidence, including hearsay, under an abuse

of discretion standard.7 "The trial court abuses its discretion when its decision lies outside

the zone of reasonable disagreement."8

       Hearsay statements are generally not admissible unless the statement falls within




       7
           Apolinar v. State, 155 S.W .3d 184, 186 (Tex. Crim . App. 2005).
       8
           Id.

                                                      3
a recognized exception to the hearsay rule.9 Police reports are barred by the rules of

evidence as inadmissible hearsay.10

C. Analysis

         Hearsay evidence is accepted upon the question of probable cause to search,

where the issue is submitted to the jury, as in this case.11 At trial, Washmon argued that

the search of his vehicle had been conducted without consent or probable cause. In its

charge to the jury, the trial court instructed that unless the jury found "beyond a reasonable

doubt that the officer or officers acquired probable cause to search, or that they obtained

voluntary consent from [Washmon] to search" the vehicle, it should find Washmon "not

guilty." The jury was further instructed that the evidence obtained during the search could

not be considered by the jury if it did not find that there was probable cause or consent for

the search. Accordingly, portions of the police report were relevant for the limited purpose

of determining whether the search was conducted pursuant to probable cause.

         Furthermore, although the State read the remainder of Rjasko's police report into

the record, the evidence presented in the report was admitted, without objection,

elsewhere.12 Our review of the record reveals that the majority of the report related to

Rjasko's personal observations, which Rjasko testified to without objection before the State

read the report into the record. The remainder of the report included two hearsay

statements Rjasko attributed to LaRock. First, Rjasko wrote in the report that "[he] was

alerted by [La Rock] that [Rebecca Ramirez, a passenger in Washmon's vehicle,] had a

syringe loaded in her back pocket. LaRock testified, without objection, that he saw a

         9
              See T EX . R. E VID . 802.
         10
          See State v. Mosquera, 877 S.W .2d 40, 41 (Tex. App.–Corpus Christi 1994, no writ) ("The rules
of evidence forbid the adm ission of police reports, expressly excluding such docum ents from the 'public
docum ents' exception to the hearsay rule.") (citing T EX . R. E VID . 803(8)(B)).
         11
              Livingston v. State, 739 S.W .2d 311, 332-33 (Tex. Crim . App. 1987); see T EX . C O D E C R IM . P R O C .
A N N . art. 38.23.
         12
            See Leday v. State, 983 S.W .2d 713, 718 (Tex. Crim . App. 1998) ("[O]verruling an objection to
evidence will not result in reversal when other such evidence was received without objection, either before
or after the com plained-of ruling."); Livingston, 739 S.W .2d at 333 ("[I]f a fact to which objected-to hearsay
relates is sufficiently proven by other com petent and unobjected to evidence, the adm ission of the hearsay
is properly deem ed harm less and does not constitute reversible error.").

                                                           4
"loaded syringe . . . sticking out of the back of [Ramirez's] waistband."13 Next, Rjasko wrote

in his report that "[he] was alerted by [LaRock] that [Ramirez] stated that there were more

syringes in the vehicle."          Ramirez testified, without objection, that she informed an

unknown officer that she had more syringes in the vehicle. LaRock testified that Ramirez

told him that she had "some more needles in her purse inside the vehicle." Because the

evidence presented in Rjasko's police report was admitted elsewhere, without objection,

even if it was error for the trial court to allow the State to read Rjasko's entire police report,

the error was harmless.14 We overrule Washmon's second issue.

                                      III. SENTENCE ENHANCEMENT

        By his third issue, Washmon contends that he was denied his due process rights

when the trial court denied his objection to "the State's motion for enhancement."

Specifically, Washmon argues that he did not receive adequate notice of the State's intent

to enhance punishment; that he was "surprised" by the late notice; and that he was harmed

by the trial court's ruling allowing the State to enhance his punishment.

A. Relevant Facts

        On March 17, at a pretrial hearing, the same day Washmon's trial began, the State

gave oral notice of its intent to enhance punishment based on a burglary of a habitation

conviction occurring in 1999, and a robbery conviction occurring in 2003. Washmon

objected to the notice claiming surprise and requested additional time to prepare his

defense because he claimed that he was unprepared to contest the enhancement

allegations. At this time, the trial court denied the State's request for enhancement.

        On March 19, after the jury found Washmon guilty, the State filed a written notice



         13
            LaRock described a "loaded syringe" as a syringe containing a substance or having "som ething
inside of it."
        14
              Leday, 983 S.W .2d at 718; Livingston, 739 S.W .2d at 333; Chamberlain v. State, 998 S.W .2d 230,
235 (Tex. Crim . App. 1999) (en banc) ("It is well established that questions regarding the adm ission of
evidence are rendered m oot if the sam e evidence is elsewhere introduced without objection; any error in
adm itting evidence over a proper objection is harm less if the sam e evidence is subsequently adm itted without
objection."); Matz v. State, 21 S.W .3d 911, 912 (Tex. App.–Fort W orth 2000, pet. ref'd) (concluding that even
if the trial court erred by im properly adm itting evidence, such error was harm less when the evidence was later
introduced without objection).

                                                       5
of intent to seek enhanced felony punishment. Washmon again objected to the lack of

adequate notice, arguing that he needed more time to prepare his defense due to surprise

and requested at least a ten-day continuance. The trial court ruled that the State could

seek enhancement and denied Washmon's oral request for a continuance. The trial court

allowed the State to enhance Washmon's punishment.

       Washmon pleaded "not true" to both of the State's enhancement allegations. The

trial court admitted into evidence the two prior judgments against Washmon during the

State's case. Washmon testified on his own behalf, and during direct examination, he

admitted that he had been convicted of the two felonies as alleged by the State. The jury

found beyond a reasonable doubt that Washmon had previously been convicted of two

felonies and enhanced his punishment.

B. Applicable Law

       A defendant has a due process right to notice of the State's intent to seek an

enhanced sentence.15            The Texas Court of Criminal Appeals has held that "prior

convictions used as enhancements must be pled in some form . . . ."16 At a minimum, a

defendant is "entitled to a description of the judgment of former conviction that will enable

him to find the record and make preparation for a trial of the question of whether he is the

named convict therein."17 "The ultimate question is whether constitutionally adequate

notice was given" and "when a defendant has no defense to the enhancement allegation

and has not suggested the need for a continuance in order to prepare one, notice given

at the beginning of the punishment phase satisfies the federal constitution."18

C. Discussion

       Here, the State provided oral notice of its intent to enhance punishment before the

guilt/innocence phase of the trial began and again provided written notice before the

       15
            Villescas v. State, 189 S.W .3d 290, 293 (Tex. Crim . App. 2006).
       16
            Id.
       17
            Id.
       18
            Id.

                                                      6
punishment phase; therefore, Washmon knew of the State's intent to offer his prior felony

convictions for purposes of enhancement throughout the proceedings. "Under [the United

State's Supreme Court case,] Oyler [v. Boles19], due process does not even require that

the notice be given before the guilt phase begins, much less that it be given a number days

before trial."20 Although Washmon asked for a continuance, it was not sworn or written.21

Moreover, Washmon generally stated that he needed a continuance to prepare a defense.

However, there is nothing to suggest, and Washmon has not raised at trial or on appeal,

any defenses to the State's allegations.22 In fact, Washmon testified during the punishment

hearing that he had been convicted of the two prior felonies alleged by the State. Thus,

because Washmon received notice before the punishment phase began and does not

raise a defense to the enhancement allegations, the State provided the minimal notice

required to satisfy due process.23 We overrule Washmon's third issue.

                                               IV. CONCLUSION

        We affirm.




                                                                      LINDA REYNA YAÑEZ,
                                                                      Justice

Do not publish.
SEE TEX . R. APP. P. 47.2(b).
Delivered and filed the
29th day of April, 2010.




        19
             See 368 U.S. 448 (1962).
        20
             Villescas, 189 S.W .3d at 294.
        21
         See Anderson v. State, 301 S.W .3d 276, 279 (Tex. Crim . App. 2009) (providing that a m otion for
continuance m ust be sworn and in writing).
        22
            Villescas, 189 S.W .3d at 293 (stating that proper notice of the enhancem ent allegations allows the
defendant to show, if possible, that there is a m istake in identity, or that there was no final form er conviction
or the like).
        23
             Id. at 295.

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