      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00006-CR



                               Jamie Edward Johnson, Appellant

                                                  v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
      NO. 09-1868-K368, THE HONORABLE BURT CARNES, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Jamie Edward Johnson of possession of a controlled substance,

methamphetamine, in an amount of less than one gram. See Tex. Health & Safety Code Ann.

§§ 481.102, 481.115 (West 2010). The jury found the enhancement paragraphs of the indictment,

alleging three prior felony convictions, to be true and assessed his punishment at confinement for

seven and one-half years in the Institutional Division of the Texas Department of Criminal Justice

and, in addition, assessed a $2,000 fine. See Tex. Penal Code Ann. §§ 12.34 (West 2011), 12.42(a)

(West Supp. 2010). Johnson appeals, raising nine points of error.1 We affirm.


       1
          In his brief, Johnson raises ten points of error. Johnson initially filed a notice of appeal
and, after the trial court denied his motion for an appeal bond, an amended notice of appeal. The
parties submitted combined briefs on all the points of error raised, including the trial court’s denial
of an appeal bond. However, an article 44.04 appeal is separate from the appeal of the conviction
and punishment, and therefore must be perfected by a separate notice of appeal. See Tex. Code
Crim. Proc. Ann. art. 44.04(g) (West 2006); Ortiz v. State, 299 S.W.3d 930, 932 (Tex.
App.—Amarillo 2009, no pet.). We construed Johnson’s amended notice of appeal as a separate
                                        BACKGROUND

               On December 15, 2009, Michelle Christensen, a Cedar Park Police Detective, was

off duty working an extra job as security at a hockey game at the Cedar Park Event Center. Before

the game, her attention was drawn to Johnson while he was waiting in line for the gates to open. She

noticed his “fidgety” behavior and, based on her training in drug recognition, believed him to be

under the influence of a CNS (central nervous system) stimulant. During the game, Johnson sat in

the section Detective Christensen was assigned to monitor. She observed him exhibit “anxious

behavior”—repeatedly standing up and sitting back down, leaning against the railing, taking off his

hat and putting it back on, and looking around “nervously.” When Johnson left his seat during the

intermission between the first two periods of the game, she followed him and saw him enter the

men’s bathroom. While Johnson was in the bathroom, Christensen conferred with her husband,

Cedar Park Police Officer Joseph Christensen, who was also working security at the game, about

Johnson’s behavior.

               When Johnson exited the bathroom, he was repeatedly blowing his nose and sniffling.

After returning to his seat, the officers observed him putting paper towels up his nose. During the

second period, he continued to exhibit behaviors that both officers considered consistent with drug

use—looking around nervously, repeatedly standing up and sitting down in an agitated manner,




notice of appeal from the trial court’s order denying the appeal bond. We separated the appeal from
the order denying an appeal bond from the appeal from the judgment of conviction, but we did not
require the parties to redraw their briefs to separate the points of error. See Johnson v. State,
No. 03-10-00770-CR, 2012 WL 378091 (Tex. App.—Austin Feb. 1, 2012, order). Johnson’s appeal
of the denial of his appeal bond appears in Johnson v. State, No. 03-10-00770-CR, 2012 WL 432152
(Tex. App.—Austin Feb. 8, 2012, no pet.) (mem. op.) (not designated for publication).

                                                 2
repeatedly removing and replacing his hat, and continually grinding his teeth. After the second

period, Johnson again went to the bathroom during the intermission. This time Officer Christensen

followed him into the bathroom. The officer heard sniffing noises—loud inhales through the nose,

the type of sniffing he associated with the snorting of a drug—coming from Johnson’s stall. When

Johnson left the bathroom, Detective Christensen and Officer Christensen approached him and asked

to speak with him. He agreed and they went outside.

               Once outside, Officer Christensen asked Johnson if he had any narcotics or weapons

in his possession. Johnson said he did not. Officer Christenson explained to Johnson that he

believed Johnson was under the influence of a narcotic and asked for consent to search his person.

Johnson consented. As Officer Christensen searched him, Johnson told the officers that he had

methamphetamine in a napkin. When confronted with the fact that most people who possess

methamphetamine do not carry it in a napkin, Johnson admitted that he had some methamphetamine

in a baggie in his wallet earlier but that it was gone. Officer Christenson removed the wallet and

gave it to Detective Christensen. Inside the wallet, she recovered a small plastic baggie that

appeared to have methamphetamine residue in it. Johnson was then arrested for possession of a

controlled substance. Subsequent lab testing confirmed that the trace amount of substance in the

baggie was methamphetamine.


                                          DISCUSSION

               On appeal, Johnson raises nine points of error complaining of error during jury

selection, evidentiary insufficiency, the erroneous admission of evidence during the guilt-innocence




                                                 3
phase, improper jury argument, and cruel and unusual punishment. For the reasons set out below,

we overrule his points of error and affirm the conviction and sentence.


                                            Jury Selection

                In two points of error, Johnson complains about error during jury selection. In his

second point of error, he asserts that the State asked multiple improper commitment questions during

the course of voir dire. Specifically, he contends the prosecutor’s questions relating to the difference

between possession and ownership and questions attempting to discern how prospective jurors felt

about convicting for possession of only residue amounts of a controlled substance were improper

commitment questions. Johnson acknowledges that he failed to object to any purportedly improper

questions during voir dire at the time they were asked. He argues, however, that the complained-of

questions rose to the level of fundamental error and thus no objection was required.

                In his ninth point of error, Johnson argues that comments by a venire member during

voir dire violated his due-process rights. He maintains that a prospective juror tainted the entire

panel because the prospective juror indicated, in response to defense counsel’s questioning about the

presumption of innocence, that he could not presume Johnson innocent because of his body language

and demeanor. Johnson again concedes that he failed to object to the venire member’s comments

at the time they were made but again asserts that no objection was required because the error rose

to the level of fundamental error.

                Preservation of error is a systemic requirement on appeal.             Ford v. State,

305 S.W.3d 530, 532 (Tex. Crim. App. 2009); Haley v. State, 173 S.W.3d 510, 515 (Tex.

Crim. App. 2005). Normally, a reviewing court should not address the merits of an issue that has

                                                   4
not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010)

(citing Ford, 305 S.W.3d at 532). To preserve a complaint for appellate review, a party must have

presented a specific and timely request, motion, or objection to the trial court and, further, must have

obtained an adverse ruling. Tex. R. App. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.

App. 2011); Peavey v. State, 248 S.W.3d 455, 470 (Tex. App.—Austin 2008, pet. ref’d). Most

complaints are subject to forfeiture by failure to comply with Rule 33.1(a) of the Rules of Appellate

Procedure. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). Even constitutional

rights—including the right of due process and due course of law—may be waived if the proper

request, objection, or motion is not asserted in the trial court. Saldano v. State, 70 S.W.3d 873,

886-87 (Tex. Crim. App. 2002); see Mendez, 138 S.W.3d at 342.

                The preservation requirements of Rule 33.1 do not apply, however, to rights which

are waivable only by plain and affirmative statement, nor to absolute systemic requirements, the

violation of which may be raised for the first time on appeal. State v. Dunbar, 297 S.W.3d 777, 780

(Tex. Crim. App. 2009).       Systemic requirements—also known as absolute requirements or

prohibitions—are laws that a trial court has a duty to follow even if the parties wish otherwise.

Mendez, 138 S.W.3d at 340. Examples of systemic requirements include jurisdiction of the person

and jurisdiction of the subject matter. Saldano, 70 S.W.3d at 888. “Waivable only” rights, such as

the right to trial by jury, are “rights of litigants which must be implemented by the system unless

expressly waived.” Mendez, 138 S.W.3d at 340; Saldano, 70 S.W.3d at 888.

                Johnson argues that because due process requires an impartial jury, no objection is

required to preserve the complained-of errors in jury selection. However, Johnson does not direct



                                                   5
us to any authority, and we have found none, characterizing improper voir dire questions or a juror’s

expression of his personal opinion as systemic, waivable-only, or otherwise “fundamental” error.2

Johnson confuses constitutional rights with absolute systemic requirements or fundamental error.

Numerous constitutional rights, including those that implicate a defendant’s due-process rights,

may be forfeited for purposes of appellate review unless properly preserved. Anderson v. State,

301 S.W.3d 276, 279-80 (Tex. Crim. App. 2009) (rejecting “due process” exception to error

preservation requirement).

               Johnson’s failure to object at trial failed to preserve error relating to any alleged

improper commitment questions. Further, because Johnson failed to object to the complained-of

juror statement, he failed to preserve error relating to his due-process complaint that the juror’s

comment tainted the venire panel. Accordingly, we overrule his second and ninth points of error.


                                 Admission of Prior Convictions

               Johnson argues in his first point of error that the trial court erred in admitting

evidence of his prior criminal history during the guilt-innocence phase of trial because the probative

value of this evidence was substantially outweighed by the prejudicial effect. He maintains that the

trial court should have excluded evidence of the following prior convictions: his 2007 state jail

felony conviction for possession of a controlled substance, his 2002 state jail felony conviction for


       2
          Johnson relies upon Brumit v. State for his contention that the requirement of a fair and
impartial jury is an absolute requirement. However, Johnson’s reliance upon Brumit is misplaced.
In Brumit, the court of criminal appeals merely recognized that due process requires a neutral and
detached hearing body or officer. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
The court actually declined to address the preservation issue under Marin v. State, 851 S.W.2d 275
(Tex. Crim. App. 1993). Id. at 644-45.

                                                  6
possession of a controlled substance, his 2008 misdemeanor conviction for burglary of a motor

vehicle, and his 2008 misdemeanor conviction for family violence assault.3

               In his brief, Johnson argues that the admission of the complained-of prior convictions

violated both Rules 403 and 609 of the Texas Rules of Evidence. At trial, however, Johnson

objected to the admission of this evidence only under Rule 403. In fact, defense counsel explicitly

stated that he was not objecting to the admission of this evidence under Rule 609—that is, he was

not complaining that the evidence was improper impeachment, only that it was more prejudicial than

probative under Rule 403. Therefore, Johnson failed to preserve his Rule 609 complaint for

appellate review. See Tex. R. App. P. 33.1(a); Pena, 353 S.W.3d at 807; Peavey, 248 S.W.3d at 470.

Accordingly, we review only his complaint that the trial court erred by admitting the complained-of

prior convictions in violation of Rule 403.4

               We review a trial court’s decision to admit or exclude evidence—including its

determination as to whether the probative value of evidence was substantially outweighed by its

       3
         The State also offered evidence of Johnson’s 2008 state jail felony conviction for theft of
a person and his 2006 misdemeanor conviction for theft. No objection was made to the State’s
impeachment of Johnson with these prior convictions.
       4
          Rule 609 states that evidence of a prior conviction shall be admitted for impeachment
purposes if its probative value outweighs its prejudicial effect. Tex. R. Evid. 609. Theus v. State
is the interpretive case for Rule 609, instructing when prior convictions are admissible for
impeachment purposes under that rule. See Theus v. State, 845 S.W.2d 874, 879-81 (Tex. Crim.
App. 1992). In Theus, the court of criminal appeals articulated a non-exclusive list of five factors
for courts to consider in determining whether a prior conviction’s probative value outweighs its
prejudicial effect for purposes of Rule 609. See id. at 880-81. These are the factors guiding the trial
court’s probative versus prejudice balancing test under Rule 609. In this case, however, Johnson’s
failure to object under Rule 609 waived error as to any violation of Rule 609. Thus, the
corresponding Theus factors—guiding the balancing test under Rule 609—are not applicable.
Consequently, we conduct our review only of the trial court’s ruling on the Rule 403 objection based
on the factors the trial court must consider under a Rule 403 balancing test.

                                                  7
prejudicial effect—under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736

(Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 2966 (2011). A trial court abuses its discretion

in this regard only if its determination “lies outside the zone of reasonable disagreement.” Id.;

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court is afforded wide

discretion in deciding whether to admit evidence of a defendant’s prior conviction. Theus v. State,

845 S.W.2d 874, 881 (Tex. Crim. App. 1992).

               “Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403.

When undertaking a Rule 403 analysis, a trial court must balance


       (1) the inherent probative force of the proffered item of evidence along with (2) the
       proponent’s need for that evidence against (3) any tendency of the evidence to
       suggest decision on an improper basis, (4) any tendency of the evidence to confuse
       or distract the jury from the main issues, (5) any tendency of the evidence to be given
       undue weight by a jury that has not been equipped to evaluate the probative force of
       the evidence, and (6) the likelihood that presentation of the evidence will consume
       an inordinate amount of time or merely repeat evidence already admitted.


Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Rule 403 favors the

admission of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. Martinez, 327 S.W.3d at 737; Young v. State, 283 S.W.3d 854, 876 (Tex.

Crim. App. 2009). Further, Rule 403 does not require exclusion of evidence simply because it

creates prejudice; the prejudice must be “unfair.” Martinez, 327 S.W.3d at 737; State v. Mechler,

153 S.W.3d 435, 440 (Tex. Crim. App. 2005). The rule envisions exclusion of evidence only when



                                                 8
there is a clear disparity between the degree of prejudice of the offered evidence and its probative

value. Gayton v. State, 331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref’d) (citing Hammer

v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)).


Probative Value

               The Texas Rules of Evidence allow for impeachment of a witness’s credibility with

evidence of a conviction for a felony or a crime of moral turpitude if the probative value of admitting

the evidence outweighs its prejudicial effect. Tex. R. Evid. 609(a). Johnson’s two convictions for

possession of a controlled substance were convictions for felony offenses. See Tex. Health & Safety

Code Ann. § 481.115(a), (b) (West 2010). The misdemeanor family violence assault conviction

involved a crime of moral turpitude. See Jackson v. State, 50 S.W.3d 579, 592 (Tex. App.—Fort

Worth 2001, pet. ref’d) (male on female misdemeanor assault constitutes crime of moral turpitude);

Lopez v. State, 990 S.W.2d 770, 778 (Tex. App.—Austin 1999, no pet.) (same). In addition,

burglary of a motor vehicle is a crime of deception. See LaHood v. State, 171 S.W.3d 613, 621 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (burglary of non-habitation is crime of deception);

White v. State, 21 S.W.3d 642, 647 (Tex. App.—Waco 2000, pet. ref’d) (burglary of habitation

is crime of deception); see also Theus, 845 S.W.2d at 881 (recognizing impeachment value of

prior crimes involving deception). Thus, the trial court could have reasonably concluded that the

four complained-of convictions were probative of Johnson’s credibility.

               Further, the baggie recovered from Johnson’s wallet contained only trace amounts

of methamphetamine. Thus, the State had to prove, through evidence other than simply his

possession, that Johnson had knowledge that the substance in his possession was a controlled

                                                  9
substance. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). The trial court could

have reasonably concluded that the evidence of his prior convictions for possession of a controlled

substance demonstrated his familiarity with illegal controlled substances and therefore were also

probative to the issue of Johnson’s knowledge.


State’s Need for Evidence

               For the reasons discussed above, the trial court could have found that the State’s need

for the evidence of Johnson’s prior convictions was strong. Because Johnson testified, his credibility

was at issue. See Dale v. State, 90 S.W.3d 826, 829-30 (Tex. App.—San Antonio 2002, pet. ref’d)

(defendant who testifies at trial places credibility at issue and is subject to impeachment); see also

Alexander v. State, 740 S.W.2d 749, 763 (Tex. Crim. App. 1987). In addition, the State had to prove

Johnson’s knowledge of the illegality of the substance in his possession. See Poindexter v. State,

153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Consequently, the trial court could have reasonably

concluded that the evidence of Johnson’s criminal history was necessary for the prosecution.


Unfair Prejudice

               “Unfair prejudice” refers to a tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.            Casey, 215 S.W.3d at 879 (citing

Gigliobianco, 210 S.W.3d at 641). Evidence might be unfairly prejudicial if, for example, it arouses

the jury’s hostility or sympathy for one side without regard to the logical probative force of the

evidence. Id. at 880. The danger of unfair prejudice exists only when the evidence has the potential




                                                 10
to impress the jury in an irrational way. Martinez, 327 S.W.3d at 737 (citing Mechler, 153 S.W.3d

at 440-41).

               Although the evidence of Johnson’s prior convictions may have a tendency to suggest

a verdict on an improper basis because of the inherently prejudicial nature of prior criminal conduct,

the same is true of all evidence of a defendant’s previous convictions. Nevertheless, Rule

609 explicitly provides for impeachment with prior convictions for felonies and crimes of

moral turpitude. Moreover, in this case the trial court instructed the jury in the court’s charge that

it could consider the evidence of Johnson’s prior convictions only for the purpose of

impeaching his credibility. We presume that the jury obeyed these instructions. See Resendiz

v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003) (appellate courts presume jury follows trial

court’s instructions).    Nothing in the record suggests the jury disregarded the trial court’s

instructions. The court did what it could to mitigate any potential improper influence of the

complained-of evidence.


Confusion of the Issues

               “Confusion of the issues” refers to a tendency to confuse or distract the jury from the

main issues in the case. Casey, 215 S.W.3d at 880. Here, the evidence of Johnson’s prior

convictions was straightforward and directly relevant to several issues in the case, namely Johnson’s

credibility and knowledge of the illegality of the substance in his possession. See Tex. R. Evid. 401

(evidence is relevant if it makes material fact more or less probable).




                                                 11
Misleading the Jury

               “Misleading the jury” refers to a tendency of an item of evidence to be given undue

weight by the jury on other than emotional grounds. Casey, 215 S.W.3d at 880. For example,

“‘scientific’ evidence might mislead a jury that is not properly equipped to judge the probative force

of the evidence.” Gigliobianco, 210 S.W.3d at 641 (citation omitted). The complained-of evidence

of Johnson’s previous convictions was not prone to this tendency, as it concerned matters easily

comprehensible by laypeople.


Undue Delay or Needless Presentation of Cumulative Evidence

       “Undue delay” and “needless presentation of cumulative evidence” concern the efficiency

of the trial proceeding rather than the threat of an inaccurate decision. Casey, 215 S.W.3d at 880.

The entirety of the evidence of Johnson’s criminal history, including the complained-of previous

convictions, was presented in a relatively brief amount of time when the prosecutor cross-examined

Johnson.    The exchange consisted of seven questions, only four of which related to the

complained-of convictions, and the entirety of this exchange occupies only one page of

approximately 172 pages of trial testimony during the guilt-innocence phase. See, e.g., Lane v. State,

933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (factor weighed in favor of admission where

extraneous-offense testimony amounted to “less than one-fifth” of trial testimony). Moreover, the

evidence was not repetitive but was unlike any other evidence presented.5


       5
          Johnson contends that this evidence was unnecessarily cumulative because the State could
have impeached him with only his two previous theft convictions. However, Rule 609 places no
restriction on the number of previous convictions that may be used to impeach a witness’s
credibility. Arguably, the number of previous convictions corresponds to the level of impeachment

                                                 12
The Rule 403 Factors

                  Considering all the 403 factors, we cannot conclude that the probative value of the

evidence of the complained-of prior convictions was substantially outweighed by the potential for

unfair prejudice. See Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App. 2006) (“[W]hen

determining whether evidence is admissible under Rule 403, we do not consider just whether the

evidence is more prejudicial than probative, we consider whether the probative value is substantially

outweighed by the danger of unfair prejudice.”). In light of the State’s burden of proof and the

matters placed in issue by the defense, we cannot say that the trial court abused its discretion in

admitting the complained-of evidence of Johnson’s criminal history at trial. We overrule his first

point of error.


                                           Jury Argument

                  In his sixth and seventh points of error, Johnson complains about the State’s jury

argument. Specifically, in his sixth point of error he maintains that the following three statements

made by the prosecutor were improper jury argument:


        1.        “He is a thief. He is a burglar. He is a drug abuser and he is a person who
                  beats up his family.”

        2.        “People take intoxilyzer tests in DWIs all the time, and they’re over
                  the limit.”

        3.        “He’s the one who took his nasty meth, snorted it in the bathroom and went
                  back to the game with children and families.”




of the witness’s credibility—the more previous convictions, the greater the impeachment.

                                                  13
To preserve error regarding improper jury argument for appellate review, a defendant must object

and pursue his objection to an adverse ruling. See Estrada v. State, 313 S.W.3d 274, 303 (Tex.

Crim. App. 2010), cert. denied, 131 S.Ct. 905 (2011); Tex. R. App. P. 33.1(a). A defendant must

contemporaneously object to the statement, request an instruction that the jury disregard the

statement if the objection is sustained, and move for a mistrial if an instruction to disregard is given.

Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). A defendant’s failure to object to a

jury argument, or failure to pursue an adverse ruling to his objection to the jury argument, forfeits

his right to complain about the jury argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.

Crim. App. 1996).       Even if the jury argument error was such that it could not be cured

by an instruction, a defendant is still required to object and request a mistrial. Mathis v. State,

67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002).

                During final jury argument, Johnson objected to the State’s argument describing him

as a thief, burglar, drug abuser, and person who beats up his family. The trial court sustained the

objection. Johnson did not request a jury instruction or move for a mistrial. Thus, Johnson has no

adverse ruling about which to complain. He has failed to preserve any alleged error relating to this

statement. Further, Johnson failed to object entirely to either of the other two statements he

complains of in his sixth point of error. Accordingly, he has also failed to preserve error in

connection with these statements.

                In his seventh point of error, Johnson asserts that the prosecutor impermissibly

attacked his credibility, improperly bolstered the State’s witness, and improperly expressed his

personal opinion that Johnson was a liar. However, Johnson failed to raise these objections to



                                                   14
the trial court at the time of the prosecutor’s argument. Therefore, he failed to preserve error as to

these complaints.

                Johnson concedes his failure to object to improper jury argument at trial, but asserts

that the alleged errors in jury argument constitute fundamental error. Again, however, Johnson fails

to cite any authority, and we have found none, characterizing the State’s alleged improper jury

argument as systemic, waivable-only, or otherwise “fundamental” error. On the contrary, the court

of criminal appeals has repeatedly emphasized that a defendant must object to preserve a complaint

that the State’s jury argument was improper. See Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim.

App. 2010), cert. denied, 131 S.Ct. 1606 (2011) (because appellant failed to object to propriety of

prosecutor’s jury arguments at trial, he failed to preserve any issue for appeal); Threadgill v. State,

146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (because appellant failed to object to jury argument

at trial, he forfeited right to raise issue on appeal); Mathis, 67 S.W.3d at 926-27 (reaffirming rule that

even if jury argument error could not be cured by instruction, defendant is still required to object and

request mistrial). Accordingly, because Johnson failed to object at trial or pursue his objection to

an adverse ruling, he forfeited his right to complain about improper jury argument on appeal. We

overrule his sixth and seventh points of error.


                                     Sufficiency of the Evidence

                In three points of error, Johnson challenges the sufficiency of the evidence to support

the jury’s guilty verdict. In his fourth and fifth points of error, he argues the evidence is legally and

factually insufficient to support his conviction for possession of a controlled substance. We no

longer employ distinct legal and factual sufficiency standards when reviewing the sufficiency of the

                                                   15
evidence to sustain a criminal conviction. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010). Instead, the only standard for determining whether the evidence proves the defendant’s

guilt beyond a reasonable doubt is the Jackson due-process standard. Brooks, 323 S.W.3d at 912;

see Griego v. State, 337 S.W.3d 902 (Tex. Crim. App. 2011). In his third point of error, Johnson

complains about the trial court’s denial of his motion for instructed verdict. A challenge to a trial

court’s ruling on a motion for directed verdict constitutes a challenge to the sufficiency of the

evidence to support the conviction. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).

Accordingly, we address all three of these points of error concerning sufficiency of the evidence

together, applying the same standard of review.

               Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Byrd v. State, 336 S.W.3d 242,

246 (Tex. Crim. App. 2011). When reviewing the sufficiency of the evidence to support a

conviction, we consider all of the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. The sufficiency of the

evidence is measured by reference to the elements of the offense as defined by a hypothetically

correct jury charge for the case. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

               In determining the legal sufficiency of the evidence, we must consider all the evidence

in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the

prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff

v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen v. State, 249 S.W.3d 680, 688-89



                                                  16
(Tex. App.—Austin 2008, no pet.). We review all the evidence in the light most favorable to the

verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence,

and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). A legal-sufficiency review requires

us to defer to the jury’s determinations of the witnesses’ credibility and the weight to be given their

testimony. Brooks, 323 S.W.3d at 899. The jury, as exclusive judge of the facts, is entitled to

weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton,

235 S.W.3d at 778; see Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). Thus, when faced with

a record of historical facts that supports conflicting inferences, we must presume that the trier of fact

resolved any such conflicts in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at

326; Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010). We consider only whether the

jury reached a rational decision. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

                The standard of review on appeal is the same for both direct and circumstantial

evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Circumstantial

evidence is as probative as direct evidence in establishing guilt and may alone be sufficient to

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Every fact does not need

to point directly and independently to the guilt of the appellant, as long as the cumulative force of

all the incriminating circumstances is sufficient to support the conviction. Id. So long as “the

verdict is supported by a reasonable inference, it is within the province of the factfinder to choose

which inference is most reasonable.” Laster, 275 S.W.3d at 523. As with any question of

circumstantial evidence and inference, “the jurors are free to use their common sense and apply



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common knowledge, observation, and experience gained in the ordinary affairs of life when

giving effect to the inferences that may reasonably be drawn from the evidence.” Obigbo v. State,

6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.); see Saenz v. State, 976 S.W.2d 314, 322 (Tex.

App.—Corpus Christi 1998, no pet.) (“Jurors are expected to draw upon their own experiences and

common knowledge and apply them to the facts at hand.”). In assessing the legal sufficiency of the

evidence, we have a duty to ensure that the evidence presented actually supports a conclusion that

the defendant committed the crime that was charged. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007).

               To support a conviction for possession of a controlled substance, the State must

prove, first, that the defendant exercised care, custody, control, or management over the substance

and, second, that he knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158,

161 (Tex. Crim. App. 2006); see Tex. Health & Safety Code Ann. § 481.115(a). When the quantity

of a substance possessed is so small that it cannot be measured, the State must prove—through

evidence other than mere possession—that the defendant knew that the substance in his possession

was a controlled substance. King, 895 S.W.2d at 703; Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim.

App. 1979).

               In this case, the record reflects that law enforcement officers recovered a baggie

containing trace amounts of methamphetamine from Johnson’s wallet. Clearly, a rational jury could

conclude that Johnson exercised care, custody, control, or management over the baggie containing

the controlled substance, as it was in his wallet, which was in the pocket of his pants. Moreover,




                                                18
Johnson confessed ownership of the baggie containing the methamphetamine stating, “I’m not

denying it. It was mine. It was mine. Heck, yeah, it’s mine.”

               The record also contains evidence, apart from his possession, demonstrating

that Johnson knowingly possessed this baggie of methamphetamine.             Two officers, one a

drug-recognition expert, observed Johnson exhibit behaviors consistent with being under the

influence of a CNS stimulant, such as methamphetamine. One of the officers followed him into

the bathroom, where he heard Johnson make noises consistent with someone snorting

methamphetamine. In addition, Johnson admitted to the officers during the search of his person that

he had methamphetamine in his wallet, but it was gone. The evidence also showed that the baggie

recovered from Johnson’s wallet was commonly used for carrying methamphetamine. Further, while

the baggie contained only trace amounts of methamphetamine, it was enough to be visible. Both

officers saw residue amounts of the controlled substance in the baggie. Finally, Johnson admitted

during his testimony at trial that he knowingly possessed methamphetamine.

               We construe the evidence in the light most favorable to the verdict. From the

evidence produced at trial, a rational jury could have inferred that Johnson knowingly carried

methamphetamine in the baggie in his wallet and that the residue in the baggie was what remained

after Johnson snorted the bulk of the methamphetamine in the bathroom during the game. A

fact finder may support its verdict with reasonable inferences drawn from the evidence. Laster,

275 S.W.3d at 523; Hooper, 214 S.W.3d at 14. It is up to the factfinder to decide which inference

is most reasonable. Id. We find that the evidence is sufficient to support Johnson’s conviction for




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possession of less than one gram of methamphetamine. Thus, the trial court did not err in denying

Johnson’s motion for directed verdict. We overrule his third, fourth, and fifth points of error.


                                  Cruel and Unusual Punishment

               In his eighth point of error, Johnson claims that his sentence was grossly

disproportionate to the offense underlying the conviction, resulting in cruel and unusual punishment

in violation of the United States Constitution.

               The Eighth Amendment to the U.S. Constitution, prohibiting cruel and unusual

punishment, forbids extreme sentences that are “grossly disproportionate” to the crime. See Graham

v. Florida, 130 S.Ct. 2011, 2021 (2010); U.S. Const. amend. VIII. However, to preserve a complaint

that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant

must make a timely, specific objection to the trial court or raise the issue in a motion for new trial.

See Battle v. State, 348 S.W.3d 29, 30-31 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (appellant

waived complaint that imprisonment for life without parole for capital murder was “grossly

disproportionate” punishment under Eighth Amendment because he failed to raise complaint to trial

court); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (appellant

waived argument that seven-year sentence for burglary of habitation was cruel and unusual

punishment because appellant failed to raise issue to trial court); Noland v. State, 264 S.W.3d 144,

151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (failure to raise issue of gross

disproportionality in punishment of 55 years’ confinement and $10,000 fine for murder in objection

at trial or motion for new trial waived right to raise issue on appeal); see also Tex. R. App.

P. 33.1(a).

                                                  20
               Johnson was required to make a timely objection to the trial court to preserve his

complaint that his seven-and-one-half-year sentence is grossly disproportionate to the possession of

a controlled substance offense. However, he did not object when the trial court imposed the

sentence, nor did he complain of the sentence in any post-trial motion. Therefore, Johnson has failed

to preserve this complaint for our review. We overrule his eighth point of error.


                                         CONCLUSION

               For the foregoing reasons, we affirm the judgment of the trial court.



                                              __________________________________________
                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: May 4, 2012

Do Not Publish




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