                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 TODD McMASTER,                                              No. 08-11-00222-CR
                                                §
                        Appellant,                               Appeal from
                                                §
 v.                                                           16th District Court
                                                §
 THE STATE OF TEXAS,                                       of Denton County, Texas
                                                §
                        Appellee.                           (TC # F-2010-2516-A)
                                                §

                                          OPINION

       Todd McMaster appeals his conviction of bail jumping, enhanced by a prior felony

conviction. Appellant entered a plea of guilty before a jury. The jury found Appellant guilty,

found the enhancement paragraph true, and assessed his punishment at imprisonment for a term

of ten years. For the reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       Craig Fitzgerald and Rodney Bolin are investigators with the Denton Police Department

and both men are assigned to the Special Investigations/Narcotics Unit. Their duties include

looking for people wanted by law enforcement as well as people involved in narcotics. On April

28, 2009, they went to the home of Shawn Marie Cagle in search of Appellant. When the

officers arrived, they observed Cagle and Brian Coulter in the driveway. The officers walked

into the garage where they found Appellant and other individuals. Fitzgerald asked Appellant
whether he had any narcotics on him and Appellant denied it. Appellant consented to a search

and Fitzgerald found a large baggie containing several smaller baggies of methamphetamine in a

pocket of Appellant’s shorts.1 Appellant pushed Bolin aside and ran out the door. Fitzgerald

commanded Appellant to stop but when he continued running, Fitzgerald used a Taser to stop

him. Appellant suffered an apparent seizure and was taken from the scene in an ambulance.

Cagle consented to a search of the home and the officers found straws and a pipe used to smoke

methamphetamine. A grand jury indicted Appellant for possession of methamphetamine with

intent to deliver and the case was set for trial on August 2, 2010. The State and Appellant’s

attorney appeared for trial but Appellant did not. Consequently, Appellant was also indicted for

jumping bail. See TEX.PENAL CODE ANN. § 38.10(a)(West 2011). The two cases were tried

together and Appellant entered a plea of guilty to the bail jumping offense, but a plea of not

guilty to possession of methamphetamine with intent to deliver. The jury found Appellant guilty

of both offenses.

                                         APPELLANT’S ISSUES

          Appellant has appealed his convictions of bail jumping (cause number 08-11-00222-CR)

and possession of methamphetamine (cause number 08-11-00223-CR) and he has filed the same

brief in each case.         Issue Two raises a claim of error in the jury charge related to the

possession of methamphetamine case. The trial court submitted separate jury charges for each of

the two cases. Consequently, the complaint raised in Issue Two is inapplicable to cause number

08-11-00222-CR and will not be addressed.

                                       DISCOVERY VIOLATION

          In Issue One, Appellant contends that the State failed to produce to his attorney a cellular

telephone log which was used during the prosecutor’s cross-examination. Appellant admitted on
1
    The methamphetamine had a total weight of 2.81 grams.

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direct examination that he had a lengthy criminal history and served time prison. He had a prior

conviction for possession of a controlled substance and he had been out of jail approximately

thirty days in April 2009. He did odd jobs in order to obtain methamphetamine for his personal

use. On April 28, 2009, Shawn Marie Cagle called Appellant and he went to her house to help

her move. When he first arrived, he smoked methamphetamine with Cagle, Brian Coulter, and

Cagle’s boyfriend, Chris Sylvera. Appellant did not have money to buy any drugs and Cagle

provided the methamphetamine for them to smoke. They then began packing and moving the

boxes to a trailer outside.        The group took occasional breaks and smoked more

methamphetamine provided by Cagle. Coulter called Appellant’s cell phone at about 5 p.m. and

told him that the police had driven by, so Appellant grabbed the drug paraphernalia and a baggie

on top of Cagle’s dresser with the intent of flushing everything down the toilet. He admitted

putting the baggie in the pocket of his shorts but said he did not know it had anything in it.

When he got to the bathroom doorway, Detective Fitzgerald came into the garage and told

Appellant to walk towards him. Appellant denied having anything on him and consented to a

search. He believed that Cagle would step forward and admit that the drugs in the bag were hers.

When Fitzgerald removed the drugs from the pocket, Appellant “freaked out” and tried to get

back out to the garage so Cagle would “fess up for whose drugs it really was.” Appellant

admitted that it was his intent to destroy the drugs but he did not intend to possess the drugs or

deliver them to anyone.

       During cross-examination, the prosecutor questioned Appellant about the phone call from

Coulter. Appellant stated that Coulter called his cell phone at about 5 p.m. and the police walked

in seconds later. Appellant said he did not have time to call anyone after receiving the call from

Coulter. The prosecutor then asked Appellant to explain why the phone records showed that



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Coulter called Appellant at 4:38 p.m. and Appellant made two calls after concluding the call with

Coulter with the first call occurring at 4:52 p.m. and the second call at 5:03 p.m. Appellant could

not explain the discrepancy.

       To preserve error, a party must make a timely and specific objection. See TEX.R.APP.P.

33.1. To be timely, the objection must be asserted at the earliest opportunity, as soon as the

ground for the objection becomes apparent.           Lackey v. State, 364 S.W.3d 837, 843

(Tex.Crim.App. 2012). Typically this means as soon as the objecting party knows or should

know that an error has occurred. Id. Here, the grounds for the objection became apparent when

the prosecutor cross-examined Appellant while referencing the cell phone records. Appellant did

not object at that moment and instead raised the issue for the first time in his motion for new

trial. Consequently, the objection was untimely. See TEX.R.APP.P. 33.1; see also Ex parte

Medellin, 280 S.W.3d 854, 860 (Tex.Crim.App. 2008)(Cochran, J., concurring)(“In Texas, we

have a contemporaneous objection rule which requires all litigants to make a timely request,

claim, or objection or forfeit the right to raise that request, claim, or objection after trial.”).

Because any error has been waived, we overrule Issue One.

                                      LACK OF NOTICE

       In Issue Three, Appellant challenges the State’s failure to provide notice of intent to

introduce evidence of an extraneous burglary of a habitation offense during the punishment

phase. An appellate court reviews a trial court’s decision to admit evidence under an abuse of

discretion standard. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). We

will not overturn the trial court’s decision so long as it is correct under any theory of law

applicable to the case and the decision is within the zone of reasonable disagreement. See

Ramos, 245 S.W.3d at 418.



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       Pursuant to Article 37.07 § 3(a)(1) of the Code of Criminal Procedure, both the State and

the defense may offer evidence as to any matter the court deems relevant to sentencing, including

the defendant’s prior criminal record and other evidence of an extraneous crime or bad act that is

shown beyond a reasonable doubt to have been committed by the defendant regardless of

whether he has been previously charged or finally convicted of the crime or act. TEX.CODE

CRIM.PROC.ANN. art. 37.07 § 3(a)(1)(West Supp. 2012). On timely request of the defendant,

notice of intent to introduce evidence under Article 37.07 must be given in the same manner as

required by TEX.R.EVID. 404(b). TEX.CODE CRIM.PROC.ANN. art. 37.07 § 3(g)(West Supp.

2012). Rule 404(b) requires the State to provide “reasonable notice” in advance of trial. See

TEX.R.EVID. 404(b).

       Several weeks prior to trial, the State gave notice of its intent to use evidence of other

crimes, wrongs, and acts at trial. Item 20 on the list states: “On March 11, 2009, the 16th

Judicial District Court of Denton County, Texas, convicted the Defendant of Burglary of a

Building in cause number F-2008-2558-A and sentenced to 6 months State Jail.” During the

punishment phase, the State called Gloria Hernandez as a witness. Appellant immediately

objected to her testimony on the ground that he was given notice of the burglary of a building

conviction involving Hernandez as the complainant, but he had not been given notice of the

State’s intent to introduce evidence of a burglary of a habitation extraneous offense. The

prosecutor explained that Appellant was arrested for burglary of a habitation but he pled guilty to

burglary of a building pursuant to a plea bargain. The prosecutor also told the court that

Detective Fitzgerald had already testified he had found Hernandez’s passport and checkbook on

Appellant’s person. Finally, the prosecutor advised that the State intended to introduce the

burglary of a building judgment related to this offense. The trial court overruled Appellant’s



                                               -5-
objection to lack of notice.

       Hernandez testified that she lived in Krum, Texas which is located in Denton County. In

September 2008, she went out of town for three days and when she returned her home was in

“shambles.” Someone had broken into her home and had gone through everything in her home,

including each shelf and drawer, and even her underwear drawer. The perpetrator had eaten food

from her freezer and pantry and had thrown balls from a container into the yard. Many items

were taken, including her checkbook and passport, but those two items were later returned to her.

Detective Fitzgerald testified during the punishment phase that he arrested Appellant on October

7, 2008 on a burglary warrant and recovered stolen property from him, namely, a checkbook and

a passport which belonged to Gloria Hernandez.

       At the beginning of the punishment phase, the State introduced several judgments,

including a judgment from cause number F-2008-2558-A, styled The State of Texas v. Todd

McMaster, for the offense of burglary of a building, committed on September 16, 2008 in

Denton County, Texas.          Appellant’s attorney stated that he had previously reviewed the

judgments and he had no objection to their admission. The judgment for this conviction recites

that Appellant was convicted of burglary of a habitation, but the word “habitation” is crossed

out, and the word “building” is inserted in its place.

       Appellant’s attorney indicated during the discussions outside of the jury’s presence that

he understood Hernandez was the complainant in the burglary of a building conviction. The

evidence showed that the burglary of a building conviction resulted from Appellant’s arrest for

the burglary of Hernandez’s home. Based on the record before us, we find no abuse of discretion

in the trial court’s ruling that the State gave Appellant reasonable notice of its intent to introduce

evidence related to this conviction. Issue Three is overruled.



                                                -6-
                               VICTIM IMPACT TESTIMONY

       In Issue Four, Appellant maintains that the trial court erred by admitting victim impact

testimony of Gloria Hernandez that the burglary of her home was “horrible” and made her feel

like she had been “raped.” The State responds that Appellant failed to preserve this issue by a

timely and specific objection. We agree.

       As a prerequisite to presenting an issue for appellate review, the record must show that

the party presented the complaint to the trial court by a timely and specific request, objection, or

motion. See TEX.R.APP.P. 33.1. Further, the argument raised on appeal must comport with the

objections made in the trial court. Gallo v. State, 239 S.W.3d 757, 768 (Tex.Crim.App. 2007);

see Clark v. State, 365 S.W.3d 333, 339-40 (Tex.Crim.App. 2012)(explaining rationale for

contemporaneous-objection rule and requirement that complaint on appeal comport with

objection at trial). Appellant objected to Hernandez’s testimony based on the lack of written

notice of the State’s intent to introduce the extraneous offense evidence (Issue Three), but he did

not object during trial on the ground it was improper victim impact evidence. Appellant raised

the issue in his motion for new trial, but that objection was untimely. See TEX.R.APP.P. 33.1.

Accordingly, we overrule Issue Four.

                                         JURY MISCONDUCT

       In Issue Five, Appellant contends that the trial court erred by overruling his motion for

new trial because some of the jurors were intimidated by other jurors and felt pressured to decide

the case within the trial court’s timetable. Appellant’s motion for new trial alleged generally that

the verdict was the result of or influenced by jury misconduct. At the hearing, Appellant’s trial

attorney testified that he had spoken with one of the jurors, Donna Lumsden, after the trial. The

trial court sustained the State’s objections to any testimony about Lumsden’s statements to trial



                                               -7-
counsel. Appellate counsel for Appellant stated that she and an investigator had been attempting

to contact Lumsden but she had not responded to their efforts. She thought Lumsden would

testify that she felt pressured by the male jurors when deciding punishment and Lumsden also

felt pressured to make a decision on punishment because she had an awards banquet to attend

that evening.

       A trial court’s denial of a defendant’s motion for new trial is reviewed under an abuse of

discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). In criminal

cases, a movant for a new trial based on jury misconduct must prove that (1) misconduct

occurred and (2) the misconduct resulted in harm to the movant. Garza v. State, 630 S.W.2d

272, 274 (Tex.Crim.App. 1981). It is Appellant’s burden to establish juror misconduct. Hughes

v. State, 24 S.W.3d 833, 842 (Tex.Crim.App. 2000). Appellant did not offer any competent

evidence in support of his argument that juror misconduct occurred in that he did not bring

forward Lumsden’s testimony. Further, counsel’s statement that she believed the juror would

have testified that the male jurors pressured her and the juror felt pressured to make a decision on

punishment because the juror had an event to attend later that day is not admissible evidence

under TEX.R.EVID. 606(b). That rule states:

       Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
       as to any matter or statement occurring during the jury’s deliberations or to the
       effect of anything on any juror’s mind or emotions or mental processes, as
       influencing any juror’s assent to or dissent from the verdict or indictment. Nor
       may a juror’s affidavit or any statement by a juror concerning any matter about
       which the juror would be precluded from testifying be admitted in evidence for
       any of these purposes. However, a juror may testify: (1) whether any outside
       influence was improperly brought to bear upon any juror; or (2) to rebut a claim
       that the juror was not qualified to serve.

Alleged coercive activity in the jury room during deliberations is not proof of an impermissible

“outside influence” for purposes of showing jury misconduct pursuant to rule 606(b). See



                                               -8-
Romero v. State, 396 S.W.3d 136, 151 (Tex.App.--Houston [14th Dist.] 2013, pet. ref’d), citing

Franks v. State, 90 S.W.3d 771, 800 (Tex.App.--Fort Worth 2002, no pet.)(refusing to consider

juror’s affidavit that she was coerced into voting guilty and finally just gave up and changed her

vote because the other jurors told her she was being unreasonable and was crazy) and Hart v.

State, 15 S.W.3d 117, 121-22, 124 (Tex.App.--Texarkana 2000, pet. ref’d)(affirming trial court’s

refusal to allow juror to testify at hearing based on Rule 606(b) where juror contended he had

been coerced into voting guilty by the other jurors). Juror Lumsden’s alleged statements concern

the jury’s deliberations and her own mental processes and do not show that an outside influence

was improperly brought to bear on any juror. Consequently, the statements are inadmissible

under Rule 606(b). See Franks, 90 S.W.3d at 800. The trial court did not abuse its discretion by

denying the motion for new trial. We overrule Issue Five and affirm the judgment of the trial

court.


August 21, 2013
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




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