                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-199-CR


JOSE LARA                                                                APPELLANT

                                            V.

THE STATE OF TEXAS                                                             STATE

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            FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. Introduction

      Appellant Jose Lara appeals his conviction for possession of cocaine with

intent to deliver, complaining in two issues that the trial court abused its discretion

by admitting evidence that marihuana was found in his apartment and by including

in the jury charge an instruction relating to “beyond a reasonable doubt.” Because




      1
           See Tex. R. App. P. 47.4.
we hold that Appellant has forfeited his first issue and that his second issue has no

merit, we affirm.

    II. Asserting “No Objection” Forfeits Marihuana Evidence Complaint

       The State offered evidence that, in addition to the cocaine for which Appellant

was indicted, officers executing a search warrant at his apartment also seized

marihuana. At a bench conference, Appellant objected to the admission of an

exhibit containing the seized marihuana, but when the State offered before the jury

a report listing marihuana as one of the substances analyzed, Appellant stated, “No

objection, Judge.”

       Appellant contends in his first issue that the trial court abused its discretion by

overruling his objection to the marihuana exhibit because the evidence was

extraneous, irrelevant, unnecessary, not properly noticed and harmful.

       The State’s first witness was Andrew Macey, a forensic scientist with the

Texas Department of Public Safety Crime Laboratory in Garland. He testified about

the contents of State’s Exhibit 11, which contained a laboratory exhibit number 2

upon which he had performed chemical analysis. W hen the prosecutor offered

State’s Exhibit 11 for record purposes only, Appellant approached the bench and

objected “to anything that contains the marihuana. I was not given a 404(b) motion

[sic]. That is Exhibit No. 2 on this. That’s not relevant to this case.” W ithout

explicitly overruling the objection, the trial court admitted State’s Exhibit 11 for record

purposes only.


                                            2
      W hen the State asked Macey for the results of his analysis performed on

exhibit 2 in front of the jury, Appellant again objected on 404(b) notice and relevancy

grounds. At another bench conference, the trial court confirmed that exhibit 2 was

the “green leafy substance” tested by Macey. Appellant re-urged his objection on

notice and relevancy grounds. The trial court overruled the objection. Macey then

testified that the results of his analysis on exhibit 2, contained in State’s Exhibit 11,

showed that it was marihuana.

      Macey further testified that State’s Exhibit 12 reflects the results of his analysis

on State’s Exhibit 11. State’s Exhibit 12 recites in pertinent part the following:

      Results of Analysis and Interpretation

      Exhibit              Net W eight                 Conclusion
       ...                 ...                         ...
       ...                 ...                         ...
      2                    1.84 g (0.06 oz)            Marihuana

W hen the State moved to admit State’s Exhibit 12, Appellant stated, “No objection,

Judge,” and it came in.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request, objection,

or motion.2 W ith two exceptions, a party must continue to object each time the




      2
        Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W .2d 249, 265 (Tex.
Crim. App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

                                           3
objectionable evidence is offered. 3 Absent one of these exceptions, we will not

address a claim that the trial court should be reversed for overruling an objection to

evidence when other such evidence was received without objection, either before or

after the complained-of ruling. 4

       The first exception to the must-continue-to-object rule is when the party

obtains a running objection; the second is when the party obtains a ruling on an

objection made outside the presence of the jury. 5 Appellant did not obtain a running

objection, so the first exception does not apply.

       W e need not decide whether the second one does because when the State

offered the report stating that the exhibit to which Appellant had previously objected

was marihuana, Appellant affirmatively stated that he had “[n]o objection.” In James

v. State, the court of criminal appeals held that a party forfeits review of a trial court’s

ruling on admissibility made outside the jury’s presence if he affirmatively asserts




       3
        Fuentes v. State, 991 S.W .2d 267, 273 (Tex. Crim. App.), cert. denied, 528
U.S. 1026 (1999); Ethington v. State, 819 S.W .2d 854, 858–59 (Tex. Crim. App.
1991).
       4
        See Wenger v. State, 292 S.W .3d 191, 202 (Tex. App.—Fort W orth 2009,
no pet.) (citing Leday v. State, 983 S.W .2d 713, 718 (Tex. Crim. App. 1998);
Johnson v. State, 803 S.W .2d 272, 291 (Tex. Crim. App. 1990), cert. denied, 501
U.S. 1259 (1991), overruled on other grounds by Heitman v. State, 815 S.W .2d 681
(Tex. Crim. App. 1991)).
       5
            See Tex. R. Evid. 103(a)(1).

                                             4
that he has “no objection” when the evidence is offered. 6 Given this precedent, even

if we were to hold that Appellant’s objections qualified for the outside-the-jury’s-

presence exception to the must-continue-to-object rule, we are compelled to hold

that Appellant has forfeited his complaint. Accordingly, we overrule Appellant’s first

issue.

             III. No Merit to “Beyond a Reasonable Doubt” Complaint

         In Appellant’s second issue, he argues that the trial court erred by including

a definition of “beyond a reasonable doubt” in the jury charge. Appellant objected

to the following language in the charge: “It is not required that the prosecution prove

guilt beyond all possible doubt; it is required that the prosecution’s proof excludes

all ‘reasonable doubt’ concerning the defendant’s guilt.” The trial court overruled

Appellant’s objection, and this instruction was submitted to the jury.

         First, the court of criminal appeals disagrees with Appellant that the objected-

to language defined “beyond a reasonable doubt.” In Woods v. State, 7 the court of

criminal appeals noted that it had previously criticized two paragraphs of the so-




         6
        772 S.W .2d 84, 97 (Tex. Crim. App.), vacated on other grounds, 493 U.S.
885 (1989); see Harris v. State, 656 S.W .2d 481, 484 (Tex. Crim. App. 1983);
Mayberry v. State, 532 S.W .2d 80, 84 (Tex. Crim. App. 1976); McGrew v. State, 523
S.W .2d 679, 680–81 (Tex. Crim. App. 1975); see also Tucker v. State, 990 S.W .2d
261, 263 n.11 (Tex. Crim. App. 1999).
         7
        152 S.W .3d 105, 115 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 1050
(2005).

                                             5
called Geesa instruction 8 as attempts to define reasonable doubt but held that the

identical paragraph to the one complained of in this case was proper. 9 Second, this

court, on numerous occasions, and the court of criminal appeals, quite recently,

have addressed the propriety of this instruction and found it not to be improper. 10

Accordingly, because we are bound by stare decisis, we overrule Appellant’s second

issue.




         8
       See Geesa v. State, 820 S.W .2d 154 (Tex. Crim. App. 1991), overruled by
Paulson v. State, 28 S.W . 3d 570, 573 (Tex. Crim. App. 2000).
         9
              Woods, 152 S.W .3d at 115.
         10
         See, e.g., Mays v. State, No. AP–75,924 2010 W L 1687779, at *12 (Tex.
Crim. App. Apr. 28, 2010); Woods,152 S.W .3d at 115; Pope v. State, 161 S.W .3d
114, 125 (Tex. App.—Fort W orth 2004), aff'd, 207 S.W .3d 352 (Tex. Crim. App.
2006), cert. denied, 549 U.S. 1350 (2007); Best v. State, 118 S.W .3d 857, 865 (Tex.
App.—Fort W orth 2003, no pet.).

                                            6
                               IV. Conclusion

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 15, 2010




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