Opinion issued December 1, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01066-CR
RODERICK M. DEARBORNE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 979485
MEMORANDUM OPINION
Appellant, Roderick M. Dearborne, was convicted by a jury of possession with the intent to deliver a controlled substance weighing at least 400 grams. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003). After appellant pleaded true to two enhancement paragraphs alleging prior convictions for attempted murder and unauthorized use of a motor vehicle, the trial court assessed his punishment at 25 years’ confinement.
In nine points of error, appellant contends that the trial court erred by (1) denying his motion for judgment of acquittal after the State rested; (2) granting the State’s challenge for cause regarding two qualified veniremen; (3) denying appellant’s Batson objection to the State’s use of peremptory challenges; (4) admitting inadmissible hearsay testimony; (5) prohibiting the introduction of impeaching evidence concerning the State’s informant; (6) admitting an item into evidence which was not sufficiently authenticated; (7) admitting evidence obtained through an unlawful search and seizure; (8) allowing a witness to read from a document that was not admitted into evidence; and (9) assessing a sentence that violated appellant’s constitutional rights.
We affirm.
Background
In 2003, Paul K. Newman, facing a felony charge for possession of marijuana, entered a written contract with law enforcement officials to provide them with information leading to the arrest of drug dealers. In exchange for such information, the State agreed to dismiss the charges pending against Newman.
Pursuant to the contract, Newman began working with Officer D. Davis, an undercover officer with the Houston Police Department’s Narcotics Division (HPDND). Newman informed Davis that he had previously conducted drug transactions with an individual he knew as Mark Billingsley. He further relayed that Billingsley was known to have two sources for drugs, a Hispanic man named Anthony, and a black man Newman believed to be Billingsley’s cousin. Davis instructed Newman to arrange a purchase of cocaine from Billingsley. According to the plan, Newman would act as the middleman, handling the deal’s logistics, while Davis would pose as the buyer.
Newman contacted Billingsley and informed him that he knew someone interested in purchasing two kilograms of cocaine. A meeting was arranged among Newman, Davis, and Billingsley to negotiate a price. There, Billingsley agreed to sell Davis two kilograms of cocaine for a total of $35,000. Billingsley then proceeded to make telephone calls necessary to procure the drugs, and shortly thereafter, instructed Davis to follow him to an undisclosed location to complete the transaction.
Newman rode with Billingsley, and Davis followed in his own vehicle. The parties arrived at an apartment complex located at 6101 Antoine. While Davis remained in his vehicle, Newman and Billingsely approached apartment number 1321 and were admitted by Michael Green. After briefly remaining in the apartment, Newman returned to the parking lot and conferred with Davis. He informed Davis that the cocaine was not yet in the apartment and that Billingsley possessed a firearm. Davis and Billingsley then spoke with one another on their respective cell phones, arguing about whether Davis would show Billingsley the agreed upon $35,000 before seeing the cocaine. With the argument unresolved, Davis and Newman left the apartment complex in Davis’s vehicle and circled the immediate area. Shortly thereafter, Billingsley called Davis and informed him that the cocaine had arrived at the apartment complex, but was not yet inside apartment number 1321.
Officers B. Hundersmarck and T. Walker, of the HPDND, were two of the officers assigned to provide backup support to Davis. Hundersmarck, an undercover officer, observed appellant arrive at 6101 Antoine in a maroon Chevy Tahoe outfitted with expensive rims. At the time of appellant’s arrival, Davis and Newman had not yet returned to the apartment complex. Hundersmarck saw Billingsley and Green approach the Tahoe. Green entered from the front passenger side and Billingsley remained outside. Appellant and Green appeared to converse for approximately 5 minutes. Appellant then got out of the Tahoe, opened the rear hatch, removed a black box, and returned to the driver’s seat. Minutes later, Walker observed Green get out of the Tahoe carrying a black box. Green and Billingsley returned to apartment number 1321, while appellant re-positioned his car to allow him to observe who entered and exited the apartment.
Davis then received a telephone call from Billingsley who informed him that the cocaine was now in the apartment. Davis and Newman returned to 6101 Antoine, and Newman again entered apartment number 1321, while Davis remained in his car. During this visit to the apartment, Newman saw approximately one kilogram of cocaine on the dining room table and a black box located nearby. Neither of the items had been there previously. Newman told Billingsley that he needed to retrieve the money from Davis, and he left the apartment. After Newman informed Davis that he had observed the cocaine, the two left the apartment complex, and Davis telephoned Billingsley to inform him the deal was off.
After Davis cancelled the deal, Hundersmarck observed Billingsley, Green, and appellant leave the apartment complex in separate vehicles. Prior to Green’s departure, Hundersmarck witnessed Green place a black box in the rear hatch area of his car, a silver Mustang. Hundersmarck testified that the box Green placed in his Mustang looked identical to the box appellant had earlier retrieved from the rear of his Tahoe. Billingsley, Green, and appellant were stopped by officers moments after they left the apartment complex. Officers recovered the black box, which contained approximately one kilogram of cocaine, from Green’s mustang.. No other black boxes were found, either in Billingsley’s or appellant’s car. During a search of appellant’s vehicle, officers discovered a handgun and bullets.
Discussion
A. Denial of Appellant’s Motion for Judgment of Acquittal
In his first pont of error, appellant contends that the trial court erred by denying his motion for judgment of acquittal after the State rested.
1. Standard of Review
A challenge of the trial court’s denial of a motion for instructed verdict is, in effect, a challenge to the legal sufficiency of the evidence supporting the conviction. See Williams v. State 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.
2. Possession of a Controlled Substance
To prove the offense of possession of a controlled substance, the State must show that the accused (1) exercised actual care, custody, control, or management of the controlled substance and (2) was conscious of his connection with it and knew what it was. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.112(f) (Vernon Supp. 2005).
When the accused, like appellant, is not in exclusive possession of the place where the contraband is found, we cannot conclude that the accused had knowledge of and control over the contraband unless the State establishes an “affirmative link” between the accused and the contraband—i.e., independent facts and circumstances that affirmatively link the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it. Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). An affirmative link may be established through either direct or circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
The Court of Criminal Appeals has identified several factors that may help to establish an affirmative link between the accused and the contraband, including whether (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the place where the contraband was found was enclosed; (4) conduct by the accused indicated a consciousness of guilt; and (5) the accused had a special connection to the contraband. Courts have also considered the amount of contraband found. Poindexter, 153 S.W.3d at 412. Although several factors relevant to establishing an affirmative link may have been identified, the number of factors actually supported by the evidence is not as important as the “logical force” they collectively create to prove that a crime has been committed. Roberson, 80 S.W.3d at 735 (quoting Whitworth, 808 S.W.2d at 569).
Here, sufficient evidence existed for a rational trier of fact to conclude that appellant consciously exercised control over the cocaine in question. When Davis and Newman first arrived at the apartment complex, Billingsley informed Newman that the cocaine had not arrived. Shortly thereafter, Hundersmarck observed appellant’s Tahoe enter the complex’s parking lot. Billingsley then told Davis that the cocaine was on site, although not yet in the apartment. Moments later, Hundersmarck witnessed appellant retrieve a black box from the rear of his Tahoe, and Walker observed Green carry the box from appellant’s vehicle to apartment number 1321. When Newman returned to the apartment following these events, he testified that both a kilogram of cocaine and a black box were present for the first time. Hundersmarck testified that he saw Green leave the apartment carrying a box that looked identical to the one appellant had removed from his Tahoe, and officers later found a kilogram of cocaine inside the box. The logical force of this evidence suffices to link appellant affirmatively to the cocaine. See Roberson, 80 S.W.3d at 735.
3. Intent to Deliver
A person commits an offense if he knowingly possesses a proscribed substance
with the intent to deliver it. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). To establish intent, it must be shown that the defendant possessed a conscious objective or desire to engage in the conduct in question. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003).
Intent to deliver a controlled substance may be proved by circumstantial evidence. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Factors that tend to show an intent to deliver include (1) the place where the defendant was arrested and the nature of the location; (2) the quantity of the controlled substance in the defendant’s possession; (3) the packaging of the contraband; and (4) the defendant’s possession of large amounts of cash. Id.
Here, sufficient evidence existed for a rational trier of fact to conclude that appellant consciously desired to deliver the cocaine. Significantly, appellant was arrested while leaving the scene of an attempted drug transaction, where he was observed delivering a black box to Green. When Green was arrested, a black box in his possession contained a large quantity of cocaine, approximately 1 kilogram.
Viewing the evidence in the light most favorable to the verdict, a reasonable trier of fact could have found beyond a reasonable doubt that appellant possessed a controlled substance with intent to deliver.
We overrule appellant’s first point of error.
B. Challenges for Cause
In his second point of error, appellant contends that the trial court erred in granting the State’s challenges for cause against venirepersons Joanna Kristen Torok and Diana M. Hickerson. The State challenged both Torok and Hickerson on the basis of their exhibiting a bias or prejudice in favor of the defendant. See Tex. Code Crim. Proc. Ann. art 35.16(a)(9) (Vernon 2003).
1. Standard of Review
We review a trial court’s decision to deny or grant a challenge for cause under an abuse of discretion standard. See Curry v. State, 910 S.W.2d 490, 493 (Tex. Crim. App. 1995). When a veniremember is challenged because of possible bias, “we must determine whether the veniremember’s beliefs would prevent or substantially impair him from following the law as set out in the trial court’s instructions and as required by the juror’s oath.” Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997). We review the record as a whole to determine the propriety of the trial court’s ruling. See Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003). As the trial court was able to observe voir dire directly, we accord great deference to its rulings when the record indicates that a veniremember vacillated or equivocated. See id.
2. Torok
After she discussed a possible bias against police offices with the State, Torok volunteered that she tended not to believe officers of the law. The following exchange ensued:
TOROK:All I’m saying is that I know that a policeman has lied to me. How am I supposed to know that he’s not lying with this defendant?
STATE: That’s why I’m asking you. Are you telling me that you simply can’t believe a policeman or that you have a bias against police officers and you cannot set that bias aside?
TOROK: Yes.
Torok later approached the bench and revealed that she had once been arrested for possession of marihuana. She then stated, “I think I got kind of screwed by the justice system . . . I don’t think I can believe the police.”
In light of Torok’s experiences and statements, we conclude that the trial court did not err in granting the State’s challenge for cause against her.
3. Hickerson
When the State asked if any veniremembers would be less likely to convict in a case involving confidential informants, Hickerson responded, “I think I would depending on the circumstances.” She then agreed that she would look “long and hard” at any testimony from an informant. Subsequently, Hickerson indicated that her brother-in-law had been charged with a “white collar crime.” After stating that the experiences of her brother-in-law would not affect her as a juror, Hickerson immediately interrupted the State to reassert her concerns regarding the use of informants. Shortly thereafter, she stated that she was not sure whether her feelings toward informants would cause her to be biased against the State. Such indecision and uncertainty suggests that Hickerson was an equivocating venireperson, requiring us to accord great deference to the trial court’s decision to grant the State’s challenge. See Swearingen, 101 S.W.3d at 99. Consequently, we hold that the trial court did not err in granting the State’s challenge of Hickerson for cause.
We overrule appellant’s second point of error.
C. Batson Challenge
In his third point of error, appellant argues that the trial court erred in denying his Batson challenge to the State’s use of peremptory strikes against veniremembers Tavares Demond Jackson, Gertrude Banks, and Betty Jean Davis. The trial court implicitly overruled appellant’s Batson challenge by informing him that his objections were noted and proceeding to seat the jury. See Tex. R. App. P. 33.1(a). 1. Standard of Review
We will reverse a trial court’s ruling on a Batson challenge only if it appears clearly erroneous. See Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1989). In applying this standard, we will not reverse the trial court’s ruling unless we have a definite and firm conviction that a mistake has been made. See id. We view the evidence in the light most favorable to the trial court’s ruling, and review the record in its entirety, including the voir dire process, the racial constitution of the venire, the State’s race- neutral explanations, and appellant’s rebuttal and impeaching evidence. See id.
2. Batson
Using a peremptory challenge based on a veniremember’s race violates the United States Constitution’s Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986). A Batson challenge consists of three prongs: (1) the defendant must make a prima facie case that peremptory strikes were used to dismiss veniremembers on the basis of their race; (2) if the defendant establishes a prima facie case, the State must provide racially neutral explanations for its challenged strikes; and (3) the defendant must establish that the State’s racially neutral explanations are pretexts for purposeful discrimination. Id. at 97–98, 106 S. Ct. at 1723–24. The burden of persuasion remains with the defendant throughout the challenge. See Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001). A finding that any peremptory strikes were racially motivated invalidates the jury selection process, and a new trial is required. See Whitsey, 796 S.W.2d at 716.
3. Jackson, Banks, and Davis
Although it is not clear from the record that appellant made a prima facie case of racial discrimination, the State nevertheless proffered racially neutral explanations for its use of peremptory strikes against Jackson, Banks, and Davis. The State indicated that it struck Jackson because he was young, had a short work history, and had had a cousin tried for robbery; Banks because she was 69 years old, retired and unemployed, and because her brother was facing charges for shooting at an officer of the law; and Davis because her son had been convicted and served eight months for writing “hot checks.”
Each of the reasons offered by the State for striking the veniremembers in question has been held to be racially neutral for the purposes of a Batson challenge. See Dennis v. State, 925 S.W.2d 32, 40 (Tex. App.—Tyler 1995, pet. ref’d) (holding that youth and unemployment are racially neutral reasons for striking a veniremember); Shavers v. State, 881 S.W.2d 67, 76 (Tex. App.—Dallas 1994, no pet.) (holding that peremptory challenges are racially neutral when used against a veniremember whose relative has been charged with a criminal offense).
Once the State presented racially neutral reasons for its strikes, appellant was required to rebut the State’s proffered explanations as pretextual. Appellant, however, made no attempt to rebut the State’s explanations, nor did he object to any statements made by the State when it offered its reasons for striking Jackson, Banks, and Davis. In light of these facts, we cannot say that the trial court’s denial of appellant’s Batson challenge was clearly erroneous.
We overrule appellant’s third point of error.
D. Admission of Hearsay Testimony
In his fourth point of error, appellant argues that the trial court improperly admitted hearsay statements by Billingsley during the State’s direct examination of Davis.
1. Standard of Review
We review a trial judge’s decision to admit or exclude evidence under an abuse of discretion standard. See Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). The admissibility of an out-of-court statement under an exception to the general hearsay exclusion rule is within the trial court’s discretion. Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995). The decision of the trial court will be affirmed if its decision is within the zone of reasonable disagreement on the particular issue. See Salazar, 38 S.W.3d at 151; Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). For hearsay to be admissible, it must fit into an exception provided by the Rules of Evidence. See Tex. R. Evid. 803, 804.
2. Billingsley’s Statements
During direct examination by the State, Davis was asked to recount what Billingsley had said to him when the two first met to discuss the terms of their proposed drug transaction. Appellant objected that any testimony by Davis regarding Billingsley’s statements amounted to hearsay. In response, the State contended that the proposed testimony was admissible under the co-conspirator hearsay exception. See Tex. R. Evid. 801(e)(2)(E). Appellant’s objection was overruled.
The co-conspirator hearsay exception provides that a statement is not hearsay if it is offered against a party and is a statement by a party’s co-conspirator during the course and in furtherance of the conspiracy. Id. The exception is not limited to prosecutions for conspiracy; rather, it is a rule of evidence that applies to any offense. Roy v. State, 608 S.W.2d 645, 651 (Tex. Crim. App. 1980). A conspiracy occurs when two or more people agree to take part in the commission of a felony. See Meador v. State, 812 S.W.2d 330, 332 (Tex. Crim. App. 1991). The State has the burden of showing that, at the time of his statement, the alleged co-conspirator was participating in a conspiracy in which the defendant was also participating or which he later joined, and that the statement was made in furtherance of that conspiracy. Ward v. State, 657 S.W.2d 133, 136–37 (Tex. Crim. App. 1983). A conspiracy may be shown by circumstances surrounding the acts and conduct of the conspirators, or it may be inferred from the evidence. See Wilkerson v. State, 933 S.W.2d 276, 279 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).
Here, the evidence indicates that Newman conspired with Billingsley to effect a sale of cocaine to Davis. Billingsley’s challenged statements, which concerned the amount and price of the cocaine, were made both during and in furtherance of this conspiracy. Thus, we cannot say that the trial court abused its discretion by admitting the challenged testimony.
We overrule appellant’s fourth point of error.
E. Points of Error Five Through Eight
Appellant’s fifth, sixth, seventh, and eighth points of error concern the trial court’s rulings on the admissibility of evidence. As each point of error shares the same standard of review, abuse of discretion, we consolidate them here for the purposes of review.
1. Standard of Review
We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). We reverse only if the ruling is outside the zone of “reasonable disagreement.” Montgomery, 810 S.W.2d at 388–90.
2. Impeachment Evidence
In his fifth point of error, appellant contends the trial court erred by excluding evidence that tended to impeach Newman’s credibility.
Appellant avers that Rule 609(a) of the Texas Rules of Evidence compelled the admission of the impeaching evidence in question. See Tex. R. Evid. 609(a). For the purposes of attacking the credibility of a witness, Rule 609(a) permits the admission of evidence of a witness’s prior convictions provided that three conditions are met: (1) the evidence must be “elicited from the witness or established by public record”; (2) the crime in question must be either a felony or a crime involving moral turpitude; and (3) the trial court must determine that the “probative value of admitting this evidence outweighs its prejudicial effect to a party.” See Tex. R. Evid. 609(a).
During his cross-examination of Davis, appellant asked if Newman, the informant, “had any criminal violations since he went to work for you in March of last year?” Appellant did not solicit impeaching evidence about Newman from Newman himself, nor did appellant seek to admit evidence impeaching Newman by public record, as required for admission by Rule 609(a). Morever, appellant did not inquire as to felonies or crimes of moral turpitude, but rather “criminal violations” in general. Because appellant failed to comply with Rule 609’s requirements for the introduction of impeaching evidence, we conclude that the trial court did not err by excluding the evidence at issue.
We overrule appellant’s fifth point of error.
3. The Black Box
In his sixth point of error, appellant contends the trial court improperly admitted the State’s Exhibit 5, the black box, into evidence.
Appellant argues that the admission of the black box failed to comport with Rule 901 of the Texas Rules of Evidence, which requires the authentication or identification of an item prior to its being admitted in evidence. See Tex. R. Evid. 901(a); Angleton v. State, 971 S.W.2d 65, 67–68 (Tex. Crim. App. 1998). Rule 901(b) provides various illustrations of how an item may be properly authenticated or identified. See Tex. R. Evid. 901(b). Included among these illustrations are (1) testimony by a witness with knowledge that “a matter is what it is claimed to be” and (2) “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex. R. Evid. 901(b)(1), (4).
Here, Hundersmarck testified that the State’s Exhibit 5 was the same black box recovered from Green’s Mustang, and that the box looked identical to the one he observed appellant retrieve from the rear of appellant’s Tahoe. Walker testified that he saw Green leave appellant’s Tahoe carrying the black box and enter apartment number 1321 and that he observed Green place the box in the rear hatch area of Green’s Mustang immediately before leaving the apartment complex. Hundersmarck further testified that the State’s Exhibit 5 was the only black box recovered from the vehicles driven by Billingsley, Green, and appellant. In light of this testimony, we hold that the trial court did not abuse its discretion in determining that the box was properly authenticated for admission into evidence.
We overrule appellant’s sixth point of error.
4. Appellant’s Handgun and Bullets
In his seventh point of error, appellant contends that the trial court erred by admitting into evidence a handgun and bullets that were illegally seized from his Tahoe following a constitutionally impermissible search.
To complain of error on appeal, a defendant must make a specific, timely objection during trial. Tex. R. App. P. 33.1(a)(1)(A); Havard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989). If a party fails to timely and specifically object, error is not preserved, and the complaint is waived. See Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim. App. 2004). A timely objection is one that is raised at the earliest possible opportunity; a specific objection is one that adequately describes the nature of the complaint. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). A defendant may not, on appeal, argue a reason for error that was not urged at trial. Havard, 800 S.W.2d at 811.
Here, appellant made neither a timely nor a specific objection. Regarding timeliness, the items in question were described in some detail before appellant protested. When he did object, appellant did so generally, stating “I would object your honor.” Appellant did not object on the basis of an illegal search or seizure, and thus raises those issues for the first time on appeal. By neglecting to enter a timely and specific objection to the admission of the challenged items, appellant failed to preserve error. See Havard, 800 S.W.2d at 811.
We overrule appellant’s seventh point of error.
5. Newman’s Contract
In his eighth point of error, appellant argues that the trial court erred by allowing Newman to read his contract with law enforcement in its entirety.
During its direct examination of Newman, the State asked questions referring to Newman’s contract, but did not seek to introduce the contract in evidence. On cross-examination, Newman was asked a series of questions about the contract. These questions by appellant’s counsel led the State, citing the Rule of Optional Completeness, to request on redirect examination that Newman read the entire contract into evidence. See Tex. R. Evid. 107. Appellant’s objection to the contract’s being read into evidence was overruled.
The Rule of Optional Completeness is implicated when a party attempts to have a portion of an act, declaration, conversation, writing, or recorded statement given in evidence. See Sauceda v. State, 129 S.W.3d 116, 122 (Tex. Crim. App. 2004). When such an attempt occurs, the opposing party may introduce into evidence the remaining parts of the otherwise inadmissible act, declaration, conversation, writing, or recorded statement. See id. The rule serves to guard against the possibility that the jury will form a false impression by hearing or seeing only a part of some act, conversation, or writing. See Credille v. State, 925 S.W.2d 112, 116 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).
During his cross-examination of Newman, appellant asked no fewer than 18 questions regarding Newman’s contract with law enforcement. At least five of these questions referred to specific paragraphs within the agreement. By extensively examining Newman about the contents of his contract with law enforcement, appellant effectively sought to have parts of the writing read into evidence. The State was entitled under the Rule of Optional Completeness to introduce the remaining parts of the contract. See Tex. R. Evid. 107. Thus the trial court did not abuse its discretion in allowing Newman to read the contract in its entirety.
We overrule appellant’s eighth point of error.
F. Constitutionality of Appellant’s Sentence
In his ninth point of error, appellant argues that his 25-year sentence runs afoul of the U.S. Constitution’s prohibition on cruel and unusual punishment because it is grossly disproportionate to the sentences assessed to Billingsley and Green, who both received seven years deferred adjudication on charges stemming from the same drug transaction.
To complain of error on appeal, a defendant must make a specific, timely objection during trial. Tex. R. App. P. 33.1(a)(1)(A); Havard, 800 S.W.2d at 211. If a party fails to do this, error is not preserved, and the complaint is waived. Mendez, 138 S.W.3d at 339 (Tex. Crim. App. 2004). It is well established that even constitutional and statutory rights may be waived by failure to object. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (concluding constitutional issues can be waived); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (concluding statutory and constitutional rights can be waived).
Here, appellant, whose offense was enhanced with two prior felony convictions, faced a sentence ranging from life to a minimum of 25 years. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2005). Appellant pleaded true to both enhancement paragraphs, and the trial court found both true and sentenced appellant to 25 years in prison in prison. Thus, appellant received the minimum sentence available. At the conclusion of the punishment hearing, appellant’s counsel, who at no point objected to any aspect of the sentence, stated, “Thank you for the sentence that you imposed Your Honor.” In light of appellant’s failure to raise a timely, specific objection to his sentence, we conclude that he failed to preserve error. Accordingly, appellant’s complaint is waived.
We overrule appellant’s ninth point of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.4.