                                 NO. 12-03-00230-CR


                        IN THE COURT OF APPEALS


           TWELFTH COURT OF APPEALS DISTRICT


                                    TYLER, TEXAS

TERR Y JACK MILLICAN,                             §           APPEAL FROM THE 97TH
APPELLANT


V.                                                §           JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          §           MONTAGUE COUNTY, TEXAS


                                   MEMORANDUM OPINION

        A jury convicted Appellant Terry Jack Millican of aggravated robbery as charged in the
indictment and affirmatively found that Appellant used a deadly weapon. The jury also assessed
Appellant's punishment at imprisonment for sixty years and a ten thousand dollar fine. In five
issues, Appellant complains of the admission of certain evidence, the trial court's response to a note
from the jury during its deliberations, and the sufficiency of the evidence. We affirm.


                                           Background

       Tito Contreras left work at the Sonic drive-in restaurant in Nocona, Texas and started
walking to a local liquor store to cash his paycheck. Before Contreras arrived at the liquor store,
Brad Coleman pulled up in his pickup and offered him a ride. Appellant was a passenger in
Coleman's pickup. Contreras knew Appellant from around town and accepted the ride. After
Contrerascashed his paycheck,Colemandrove awayfrom Nocona,explaining that they were going
to get some marijuana. At some point, Appellant pulled a pistol, pointed it at Contreras's neck, and
said that he wanted Contreras's money. Appellant and Contreras began to struggle. When Contreras
began to prevail in the struggle, Coleman joined in, hitting Contreras. Appellant then shot Contreras
twice in the stomach. Contreras opened the pickup door and fell into the road. Appellant got out
of the pickup and hit and kicked Contreras for about five minutes. He then searched Contreras's
pockets, looking for his wallet and the money from the cashed paycheck. However, Contreras had
thrown his wallet as he fell out of the pickup, and Appellant could not find it. Coleman called to
Appellant to leave, and Appellant rejoined Coleman in the pickup. They drove away, leaving
Contreras in the roadway where he was eventually picked up and taken to the hospital.
        At the hospital, Contreras identified Coleman and Appellant from a photographic lineup. He
identified Coleman as the driver of the pickup and also identified Appellant as the person who
scuffled with him and shot him. The pickup in which the three men were riding belonged to
Coleman's father and was found parked in front of Coleman's apartment. Law enforcement officers
discovered several bullet holes in the cab compartment of the pickup along with broken glass and
blood stains. They also discovered a shoe beneath the pickup. At the scene of the robbery, officers
found a shoe that matched the one found beneath the pickup, broken glass, blood stains, Contreras's
work shirt with the "Sonic" logo, and Contreras's wallet. DNA test results identified Contreras's
blood on Appellant's pants.
        At trial, Coleman testified that Appellant had pulled the gun on Contreras and shot him.
Appellant's half sister, Coleman' s live-in girl friend at the time of the robbery, testified that Coleman
said he shot Contreras. Appellant's half brother testified that Coleman had told him that Coleman
shot Contreras. Appellant's half brother also testified that he was present when Contreras told his
supervisor at Sonic that he, Contreras, did not know who shot him. Both Appellant's half sister and
half brother admitted they had not told anyone of these admissions by Coleman and Contreras until
they came to testify for Appellant at trial.
       The jury found Appellant guilty of aggravated robbery and made an affirmative deadly
weapon finding. The jury also assessed punishment at imprisonment for sixty years and a ten
thousand dollar fine. This appeal followed.


                   Hearsay Evidence Regarding Photographic Lineup

       In his first issue, Appellant contends the trial court erred in admitting the investigating
 officer's hearsay testimony that Contreras identified Appellant in a photographic lineup.
         We first note that the officer had previously testified, without objection, thatthe first time
 heinterviewed Contreras inthehospital, Contreras identified Appellant as theman who robbed him.
 Atthat time, Contreras also told him that hehad "hung out" with Appellant some. Case law is clear
 that "errorin admission of evidence is curedwhere the sameevidence comes in elsewhere without
 objection; defense counsel must object every time allegedly inadmissible evidence is offered."
 Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Since the evidence had already
 come in without objection, any error was waived. Even absent waiver, however, the result would
 not change.

        Hearsay is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth ofthe matter asserted. TEX. R. EviD. 801(d). Hearsay
is not admissible except as provided by statute or the rules of evidence. TEX. R. EviD. 802. Rule
801(e) provides that a statement is not hearsay ifthe declarant testifies at trial, is subject to cross-
examination concerning the statement, and the statement is "one of identification of aperson made
after perceiving the person." Tex. R. Evbd. 801(e)(1)(C).
        Here, Contreras testified at trial and was subjected to cross-examination. During his
testimony, heidentified Appellant asthe person who robbed him and shot him. Healso testified that
his identification was not based solely on seeing Appellant the day of the robbery. According to
Contreras, he had previously known Appellant and they had gone to afootball game together with
a group ofpeople. This testimony satisfies the requirements ofRule 801(e)(1)(C). Therefore, the
complained-of testimony was not hearsay. Seeid.
         Appellant also contends in his first issue that the admission ofthe challenged testimony was
improper bolstering. However, Appellant admits that he did not object to the testimony on that
ground. Therefore, that aspect ofhis first issue is waived. See Tex. R. App. P. 33.1; Rezac v. State,
782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Further, bolstering is not a valid objection if the
identification statement is admissible under Rule 801(e)(1)(C). Jones v. State, 833 S.W.2d at 634,
635 (Tex. App.-Houston[14th Dist.] 1992, pet. ref'd); Thomas v. State, 811 S.W.2d 201,208 (Tex.
App.-Houston [1st Dist.] 1991, pet. ref'd). Appellant's first issue is overruled.
                                          Chain of Custody

         In Appellant's second issue, he asserts that the trial court erred in admitting blood sample and
clothing evidence because the State failed to prove a secure chain of custody.
         Texas Ranger Kenny Ray testified that he obtained several boxes of evidence from the
Montague County Sheriff's Office investigator and delivered the evidence to the Texas Department
of Public Safety (DPS) testing laboratory in Austin. He then retrieved the items and returned them
to the Montague County Sheriff's Office. He admitted he did not know what was contained in the
boxes.

         Officer Robertson with the Montague County Sheriff's Office testified about collecting the
various items contained in the boxes and identified them at trial. Further, the DPS lab person who
tested the evidence also identified the items and explained his testing of the items.
         The requirement of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims. TEX. R. Eved. 901(a). A chain of custody of evidence is conclusively proven
when the seizing officer testifies that he seized the physical evidence, put an identification mark on
it, placed it in the property room, and retrieved the item of evidence from the property room on the
day of trial. Stoker v. State, 788 S.W.2d 1,10 (Tex. Crim. App. 1989). Stated another way, proof
of the beginning and the end of the chain will support admission of the evidence barring any showing
of tampering or alteration. See id. Where there are no allegations of tampering or alteration,
questions as to care and custody of the evidence generally go to weight rather than admissibility.
Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
         In the present case, Appellant neither suggested tampering or alteration nor questioned that

Texas Ranger Ray delivered and returned the boxes of evidence. Rather, the objection was that the
chain of custody failed because Ray was unable to identify the items contained in the boxes he
transported. As such, Appellant's objection went to the weight the jury chose to give to the evidence
rather than to its admissibility. See id. Appellant's second issue is overruled.


                         Admission of Juvenile Disposition Evidence

         In his third issue, Appellant contends the trial court erred in admitting evidence of
Appellant's juvenile record, including the adjudication, disposition, and disposition following
modification, during the punishment phase of Appellant's trial. Appellant acknowledges that article
37.07, section 3(a)(1) of the Texas Code of Criminal Procedure provides for the admission of a prior
juvenile adjudication, but contends the disposition of that adjudication is not admissible.
        Article 37.07, section 3(a)(1) provides, in pertinent part, that


        evidence may be offered... as to any matter the court deems relevant to sentencing, including but not
        limited to the prior criminal record of the defendant.... Additionally, ... evidence may be offered
        by the state and the defendant of an adjudication of delinquency based on a violation by the defendant
        of a penal law of the grade of:
                 (A)       a felony; or
                 (B)       a misdemeanor punishable by confinement in jail.



Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Pamph. Supp. 2004-2005). Prior
versions of article 37.07, section 3(a) prohibited introduction during the punishment phase of the
details about a prior criminal act resulting in a final conviction. See Haney v. State, 951 S.W.2d
551,554 (Tex. App.-Waco 1997,no pet.) (citationsomitted). However, the legislatureamendedthe
article after the Texas Court of Criminal Appeals held that an extraneous unadjudicated offense
could not be admitted as relevantevidenceduringthe punishmentphase of a trial. Id.;see Grunsfeld
v. State, 843 S.W.2d 521, 523 (Tex. Crim. App. 1992). The current version permits the admission
of evidence of "any matter the court deems relevant to sentencing." Tex.Code Crtm. Proc. Ann.
art. 37.07 § 3(a)(1); Haney, 951 S.W.2d at 554. As the court noted in Haney, "[t]he statute does
not limit what evidence a trial court might consider relevant, [footnote omitted] but specifies that
relevant evidence at sentencing includes, inter alia, the defendant's prior criminal record and
evidence of an extraneous crime or bad act proven beyond a reasonable doubt." Id.
       Buildingon theHaney court's analysis, the Texarkana Courtof Appeals, in a case involving
admission of a defendant's juvenile adjudication, wrote that article 37.07, section 3(a)provides the
avenue for the admission of juvenile court adjudications at later criminal proceedings. Barletta v.
State, 994 S.W.2d 708, 713 (Tex. App.-Texarkana 1999,pet. ref'd). The court also noted that the
trial court's decision to admit such evidence is reviewed for an abuse of discretion and will not be

disturbed unless the trial court's ruling was beyond the zone ofreasonable disagreement. Id. (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh'g)).
        Further, the San Antonio Court of Appeals has noted that, although article 37.07, section 3(a)
refers only to admission of evidence of an adjudication, and not the disposition of a delinquency
case, "it does not forbid [the use of a disposition] when the trial court deems the evidence to be
relevant to sentencing." Santoya v. State, 04-94-00761-CR, 1996 WL14073, at *8 (Tex. App.-San
Antonio Jan. 17, 1996, pet. ref'd) (not designated for publication).
        Based upon the foregoing authorities, we hold that the trial court did not abuse its discretion
in admitting evidence of the disposition and order modifying disposition of Appellant's prior
adjudication. Thus, the admission of the evidence was not error. Appellant's third issue is
overruled.




                          Jury Instructions During Deliberations

        In Appellant's fourth issue, he argues that the trial court failed to "properlyinstruct" thejury
duringits deliberations duringthe guilt/innocence phaseof the trial in responseto thefollowing jury
note: "page 3, number 4 and 5 states that Terry Jack did shoot Tito. Has this been determined that
Terry did shoot Tito?" The court responded, "You are instructed that the Court, under the law, is
not permittedto answerthe question whichyouhavepresented. Please consideronlythe instructions
which have already been given and continue yourdeliberations." Defense counsel objected to the
instruction and requestedthat the court make the following response: "That is what you have been
impaneled to decide."
       Article 36.27 of the Texas Code of Criminal Procedure outlines the procedure for a jury's
communication with the court after a charge has been given the jury. Tex. Code Crtm. Proc. Ann.
art. 36.27 (Vernon Pamph. Supp. 2004-2005).            Article 36.27 requires the court to answer
communications of thejury and give additional instructions uponquestions of law whenthe request
is proper. Gamblin v. State, 476S.W.2d18,20 (Tex. Crim. App. 1972). lithe request is not proper,
the court should inform the jury that their request is not proper by referring to the court's charge.
Id. When the trial judge responds substantively to a jury question during deliberations, that
communication essentially amounts to an additional or supplemental jury instruction. Dixon v.
State, 64 S.W.3d 469, 475 (Tex. App.-Amarillo 2001, pet. ref'd) (citing Daniell v. State, 848
S.W.2d 145,147 (Tex. Crim. App. 1993)). A communication from the court that merely refers the
 jury tothe original charge isnot an additional instruction. Dixon, 64S.W.3d at475 (citingEarnhart
 v. State, 582 S.W.2d 444, 450 (Tex. Crim. App. 1979)). It is assumed that a jury will follow the
 instructions given, and a judgment will not be reversed without evidence the jury was actually
 confused by the charge. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).
        Inthepresent case, thejurysent thecourt a note that said "page 3, number 4 and 5 states that
Terry Jack did shoot Tito. Has this been determined that Terry did shoot Tito?" The pertinent
portion ofthe jurycharge stated, "Now, ifyou find from the evidence beyond areasonable doubt that
on or about the 19th day ofDecember, 2001, in Montague County, Texas, the defendant, Terry Jack
Millican, did     " The jury charge correctly directed the jury to find Appellant guilty ifit found
from the evidence, beyond areasonable doubt, that he committed the alleged offense. The court, in
directing the jury back to the charge, declined to provide a communication that would be an
additional or supplemental jury charge. When the jury returned to its deliberations, as directed by
the court, it was able to apply thecorrect jurycharge and agree ona verdict. Wehold the trial court
did not err in not submitting Appellant's suggested additional jury charge or in responding as itdid
to the jury's question. Appellant's fourth issue is overruled.


                                  SUFFICffiNCY OF THE EVIDENCE

        In his fifth issue, Appellant contends the evidence is legally and factually insufficient to
support the jury's finding of guilt.
Legal Sufficiency

        In reviewing a legal sufficiency question, we must view the evidence in the light most
favorable totheverdict anddetermine whether anyrational trieroffact couldhave found theessential
elements ofthe crime beyond a reasonable doubt. Jackson v. Virginia, AA3 U.S. 307,319,99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
The trier of fact, here the jury, is the exclusive judge ofthe credibility of witnesses and of the weight
to be given their testimony. Barnes v. State, 876 S.W.2d316,321 (Tex. Crim. App. 1994). Thejury
is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587,
588-89 (Tex. App.-Corpus Christi 1988, pet. ref'd). Likewise, reconciliation of conflicts in the
evidence is within the exclusive province of thejury. Losada v. State, 111 S.W.2d 305, 309 (Tex.
Crim. App. 1986).
        Viewed in the light most favorable to the verdict, the evidence here shows that Contreras
knew Appellant prior to the robbery and accepted a ride with Appellant and Coleman because of that
familiarity. Contreras identified Appellant as the person who pulled a gun on him and as the person
who had shot and robbed him. Contreras also identified Appellant from the police photographic
lineup and later in court. Contreras's blood was found on Appellant's pants. The pickup in which
they were riding belonged to Coleman's father and had bullet holes, broken glass, and blood stains
in the cab. Underneath the pickup was a shoe that matched one found at the scene. Also at the scene
of the robbery was more broken glass from the pickup, blood stains, Contreras's "Sonic" work shirt,
and his wallet. Finally, Coleman testified that Appellant pulled the gun on Contreras and shot him
during the struggle.     This evidence is legally sufficient to support Appellant's conviction.
Appellant's fifth issue, as to legal sufficiency, is overruled.
Factual Sufficiency

        When reviewing the factual sufficiency of the evidence, we review all of the evidence, but
not in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404,407 (Tex. Crim.
App. 1997). We must determine whethera neutral review of the evidence, both for and against the
finding, demonstrates that a rational jury could find guilt beyonda reasonable doubt. Zuniga v.
State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when
evidence supporting the verdict, considered by itself, is too weak to support the finding of guilty
beyonda reasonable doubt. Id. Evidenceis also factually insufficient whencontrary evidence is so
strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Id. at 485. The
jury is the sole judge of the weight and credibility of witness testimony. Wesbrook v. State, 29
S.W.3d 103,112 (Tex. Crim. App. 2000).
       Applying these guidelines in determining the factual sufficiency of the evidence, we consider
all the evidence adduced at trial. In addition to consideringthe testimony supportingthe verdict, we
also consider the evidence that tends to disprove Appellant's guilt. Therefore, in addition to the
evidence summarized in our legal sufficiency discussion, we also consider the testimony by
Appellant'shalfsisterthatColeman saidhe shotContreras andtestimony byAppellant'shalfbrother
that Contreras told his Sonic manager that he did not know who shot him.


                                                   8
          Thejury heard both the State's evidence and witnesses and Appellant's cross-examination
of those witnesses. The jury saw the demeanor of the witnesses and evaluated those witnesses'
credibility. Thejury chose to believe the State's evidence. In examining the evidence, both for and
against theverdict, wecannot saythattheevidence supporting theverdict, considered byitself, is too
weak to support the finding of guilty beyond a reasonable doubt. Norcan we say that thecontrary
evidence is so strong that the beyond-a-reasonable-doubt burden of proofcouldnot have been met.
Therefore, we hold that the evidence was factually sufficient for thejury to find Appellant guilty as
charged. Appellant's fifth issue, as to factual sufficiency, is overruled.


                                                     Disposition

         Having overruled Appellant's first, second, third, fourth, and fifth issues, thejudgment ofthe
trial court is affirmed.




                                                                   SAM GRIFFITH
                                                                        Justice




Opinion delivered December 22, 2004.
Panel consistedof Worthen, C.J., Griffith, J., and DeVasto, J.




                                               (DO NOT PUBLISH)
                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                         JUDGMENT


                                        DECEMBER 22, 2004


                                      NO. 12-03-00230-CR


                                    TERRY JACK MILLICAN,
                                                Appellant
                                                     V.

                                     THE STATE OF TEXAS,
                                                 Appellee



                            Appeal from the 97th Judicial District Court
                    of Montague County, Texas. (Tr.Ct.No. 02-06-0107M-CR)


                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,

and the same being inspected, it is theopinion of this court that there was no error in thejudgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that this decision be certified to the court below

for observance.


                      Sam Griffith, Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
