                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               §
 TODD McMASTER,                                                No. 08-11-00223-CR
                                               §
                       Appellant,                                  Appeal from
                                               §
 v.                                                             16th District Court
                                               §
 THE STATE OF TEXAS,                                         of Denton County, Texas
                                               §
                       Appellee.                              (TC # F-2009-2549-A)
                                               §

                                         OPINION

       Todd McMaster appeals his conviction of possession of more than one but less than four

grams of methamphetamine with intent to deliver, enhanced by a prior felony conviction. A jury

found Appellant guilty, found the enhancement paragraph true, and assessed his punishment at

imprisonment for forty 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 defense attorney

appeared for trial but Appellant did not. Consequently, he 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.

                                       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

direct examination that he had a lengthy criminal history and served time in 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
1
    The methamphetamine had a total weight of 2.81 grams.

                                                      -2-
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

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, an objection must be asserted at the earliest opportunity and 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



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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.

                                       CHARGE ERROR

       In Issue Two, Appellant complains that the jury charge improperly included the culpable

mental states of “intentionally” or “knowingly” when the applicable statute requires that the

State prove Appellant knowingly committed the offense. The State responds that the error, if

any, is harmless.

       We review charge error using the procedure set out in Almanza v. State, 686 S.W.2d 157,

171 (Tex.Crim.App. 1985). The first step is to determine there was error in the charge. Sakil v.

State, 287 S.W.3d 23, 25 (Tex.Crim.App. 2009); Barrios v. State, 283 S.W.3d 348, 350

(Tex.Crim.App. 2009). If error exists, we proceed to the second step which is to determine

whether the error was harmful. Barrios, 283 S.W.3d at 350. If the appellant objected to the

charge, reversal is required if there is some harm. Barrios, 283 S.W.3d at 350. If the error was

not objected to, it must be “fundamental” and requires reversal occurs only if it was so egregious

and created such harm that the defendant “has not had a fair and impartial trial.” Barrios, 283

S.W.3d at 350, quoting Almanza, 686 S.W.2d at 171.

       A person commits an offense if he knowingly manufactures, delivers, or possesses with



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intent to deliver a controlled substance in Penalty Group 1, which includes methamphetamine.

TEX.HEALTH&SAFETY CODE ANN. §§ 481.102(6), 481.112(a)(West 2010).2                             To obtain a

conviction under Section 481.112(a), the State must prove that the defendant (1) exercised care,

custody, control, or management over the controlled substance; (2) intended to deliver the

controlled substance to another; and (3) knew that the substance in his possession was a

controlled substance. Id. §§ 481.002(38), 481.112(a); Peña v. State, 251 S.W.3d 601, 606

(Tex.App.--Houston [1st Dist.] 2007, pet. ref’d).              The indictment alleged that Appellant

intentionally or knowingly possessed methamphetamine with intent to deliver. Likewise, the

application paragraph of the court’s charge authorized the jury to convict if it found that

Appellant intentionally or knowingly possessed the specified amount of methamphetamine with

intent to deliver.     The abstract portion of the court’s charge included definitions of both

intentionally and knowingly and instructed the jury that possession means the actual care,

custody, control, or management of the controlled substance.3 The charge also included an

instruction that possession is a voluntary act if the possessor knowingly obtains or receives the

thing possessed or is aware of his control of the thing for a sufficient time to permit him to

terminate his control.4

         In cases involving specific-intent offenses, courts have held that the jury charge should

include only the specific intent required by the statute and a jury charge is erroneous if it also

includes the general culpable mental states such as intentionally or knowingly. See Bazanes v.

State, 310 S.W.3d 32, 37 (Tex.App.--Fort Worth 2010, pet. ref’d)(in an indecency with a child

2
  Interestingly, Section 481.115(a) provides that a person commits an offense if he intentionally or knowingly
possesses a controlled substance in Penalty Group 1. TEX.HEALTH&SAFETY CODE ANN. § 481.115(a).
3
    TEX.HEALTH&SAFETY CODE ANN. § 481.002(38).
4
    TEX.PENAL CODE ANN. § 6.01(b)(West 2011).


                                                    -5-
case, the charge included the required specific intent to arouse or gratify in the application

portion, but also included the culpable mental states of intentionally and knowingly); Jones v.

State, 229 S.W.3d 489, 492 (Tex.App.--Texarkana 2007, no pet.)(in an indecency with a child

case, the charge instructed the jury that indecency with a child is committed if the person

intentionally or knowingly engages in sexual contact with a child); Washington v. State, 930

S.W.2d 695, 699-700 (Tex.App.--El Paso 1996, no pet.)(in an indecency with a child case,

stating that the charge should not have included the culpable mental state of intentionally). This

case, however, involves two different culpable mental states. First, the State must prove that

Appellant knowingly possessed the methamphetamine. Second, it must prove that he possessed

it with the specific intent to deliver. We conclude that the charge should have been restricted to

those two mental states and it is erroneous because it should not have instructed the jury on the

culpable mental state of intentionally in the abstract portion of the charge or in the application

paragraph.

       Turning to the harm analysis, we must determine whether Appellant objected on the

ground raised on appeal. During the charge conference, defense counsel objected because the

charge included the culpable mental state of knowingly and he believed it should be restricted to

intentionally possessed with the intent to deliver. The argument raised on appeal states the

opposite contention that the charge is erroneous because it included the culpable mental state of

intentionally. It is doubtful that Appellant’s objection preserved the issue raised on appeal, but

we conclude that the record does not support a conclusion Appellant suffered even some harm

from the error.

       When conducting the harm analysis, we may consider: (a) the charge itself; (b) the state

of the evidence, including contested issues; (c) the argument of counsel; and (d) any other



                                              -6-
relevant information. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996). The charge is

correct except for its inclusion of the intentional mental state and it required the jury to find that

Appellant either intentionally or knowingly possessed the methamphetamine and he possessed it

with the specific intent to deliver. The trial court’s erroneous inclusion of the intentional

culpable mental state did not reduce the State’s burden or permit the jury to convict Appellant on

less proof because an intentional mental state is a higher mental state than knowing. See

TEX.PENAL CODE ANN. § 6.02(d)(West 2011)(“Culpable mental states are classified according to

relative degrees, from highest to lowest, as follows (1) intentional; (2) knowing; (3) reckless; (4)

criminal negligence.”). Further, it did not prevent the jury from considering Appellant’s defense

that he did not own or possess the methamphetamine and simply picked it up with the intent to

flush it down the toilet. We conclude Appellant did not suffer even some harm from the error.

Issue Two is overruled.

                                       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.

       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



                                                -7-
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

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



                                               -8-
“shambles.” Someone had broken into her home and had gone through everything, 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 the 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 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.

       Defense counsel 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.

                                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



                                                -9-
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 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

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



                                               - 10 -
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

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



                                               - 11 -
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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