Opinion issued August 31, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00531-CR
IRRUN CHRISTOPHER JONES, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. CR-1151922
MEMORANDUM opinion
Indicted under the name of Irrun Christopher Jones, a jury convicted appellant of the offense of assault on a public servant and, after having found two enhancement paragraphs alleging prior felony convictions to be true, the jury assessed his punishment at twenty-five years in prison.[2]
Appellant raises five points of error on appeal: (1) the judgment against him is void because the indictment named someone else as having committed the alleged offense; (2) the evidence supporting the jury’s finding of “true” with regard to the two enhancement paragraphs is factually insufficient; (3) the trial court abused its discretion when it admitted irrelevant evidence of an extraneous offense; (4) the trial court abused its discretion when it admitted evidence of a prior conviction that occurred more than ten years before appellant’s trial; and (5) the trial court erred in denying his request for a jury instruction on self-defense. We affirm.
BACKGROUND
While serving time in the Harris County jail, appellant claims to have been beaten by officers Rene Castro and Jerry Barwald. Officer Barwald testified that he observed appellant masturbating in front of a female nurse, who was distributing medication to appellant and other inmates in the same general population cell. When the nurse became distraught and stopped dispensing medication, the other inmates became angry with appellant. In order to diffuse the situation, Officer Barwald and Officer Castro escorted appellant to a holdover cell. Officer Barwald left appellant with Officer Castro and headed for the elevator. Both officers testified that appellant walked to the holding cell without a fight, but when Officer Castro opened the door, appellant stated that he was not going in, then turned and hit Officer Castro in the face. Appellant and Officer Castro then exchanged blows before appellant grabbed Officer Castro’s legs, forcing him to the floor. Appellant and Officer Castro continued wrestling on the floor until officers subdued the appellant.
Testifying in his own defense, appellant offered a decidedly different version of events. Claiming that he would never do so in front a nurse while in custody, appellant denied he masturbated. He testified, in essence, that it was the other inmates queued up in line awaiting distribution of meds who were making suggestive comments to the nurse and he sought to allay her apprehensions. When he protested the nurse’s refusal to give him his medications, he was immediately ordered away from the nurse’s window into the hallway. Appellant testified that, while he was walking with Officers Castro and Barwald, Officer Castro hit him below the rib cage multiple times without provocation. When he attempted to lie down on the floor—an action he claimed as standard procedure for inmates when a situation gets out of control—Officer Castro grabbed him in a headlock and Officer Barwald jumped on his back, pushing him to the floor and then handcuffing him. Although he conceded that he may have grabbed Officer Castro’s legs or waist, appellant maintained that Castro never fell to the floor and that he only grabbed the officer to prevent him from hitting him again.
Appellant, who initially identified himself at trial as Irrun Jones, admitted that he had been convicted of the following offenses: (1) failure to identify himself to a peace officer; (2) assault of a public servant; (3) burglary of a habitation; and (4) possession of a controlled substance. He also testified that he has been known by two different names: Irrun Jones and his real name, Alfred Queen. According to appellant, when stopped by a police officer years earlier when he was on probation, he identified himself by the name of a friend, Irrun Jones, and, as a result, the Harris County Jail and court system also identify him by that name. At the conclusion of the guilt-innocence phase of the trial, the jury convicted appellant of assault on a public servant.
During the punishment phase of the trial, appellant pleaded “not true” to the two enhancement paragraphs in the indictment alleging prior convictions for engaging in organized crime and burglary of a habitation. The State introduced five previous judgments and four jail cards into evidence. The five previous judgments, which listed the defendant’s name as either Alfred Queen or Irrun Christopher Jones, corresponded to convictions for burglary of a habitation, engaging in organized criminal activity, assault on a public servant, possession of a controlled substance, and failure to identify. The jail cards, which also listed the defendant’s name as either Alfred Queen or Irrun Christopher Jones, pertained to arrests for the same offenses. The State’s fingerprint expert, James Dalrymple, testified that the fingerprints on the previous judgments and jail cards all matched appellant’s fingerprint taken during trial. Finding both enhancement paragraphs to be true, the jury assessed appellant’s punishment at twenty-five years in prison.
DISCUSSION
Indictment
In his first point of error, appellant contends that the judgment against him is void because the trial court did not have jurisdiction over him. Specifically, appellant argues that because his name is Alfred Queen and the indictment named Irrun Christopher Jones, the indictment charges someone else with the alleged offense, thereby defeating the trial court’s jurisdiction over him. Appellant further argues that, because of this absence of jurisdiction, his failure to object to the indictment’s defects prior to trial does not waive the issue and he may raise it for the first time on appeal.
When the document purporting to be a charging instrument (such as an indictment) does not satisfy the constitutional requisites of a charging instrument, a judgment of conviction for a crime is void. Cook v. State, 902 S.W.2d 471, 479–80 (Tex. Crim. App. 1995). Those constitutional requisites include charging “a person” with the commission of an offense. Id. When a person is known by more than one name, the indictment may use either. Tex. Code Crim. Proc. Ann. art. 21.07 (Vernon 2009); see, e.g., Blankenship v. State, 785 S.W.2d 158, 160 (Tex. Crim. App. 1990) (holding that article 21.07 “does not require that the person be commonly known by the name alleged”).
In the instant case, the indictment charged Irrun Christopher Jones with the commission of an offense. Although appellant argues on appeal that his name is Alfred Queen and that Irrun Christopher Jones is neither an alias nor a name by which he is commonly known, he himself testified at trial that he is known by both names—Alfred Queen (his true name) and Irrun Christopher Jones (the name alleged in the indictment) and further admitted that he had previously used and was charged and convicted in another case under the name Irrun Christopher Jones. There is ample evidence to support the conclusion that the appellant was known by more than one name and the constitutional requisites for the charging instrument were satisfied.
Additionally, appellant was required to “object to a defect, error, or irregularity of form or substance in [the] indictment . . . before the date on which the trial on the merits commenced,” or he “waiv[ed] and forfeit[ed] the right” to raise his complaint “on appeal or in any other post conviction proceeding.” Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Because appellant raised no objection prior to trial to any alleged deficiency in the indictment, he waived his complaint. See id.
We overrule appellant’s first point of error.
Factual Sufficiency
In his second point of error, appellant challenges the factual sufficiency of the evidence in support of the jury’s findings that he was the person convicted of committing the offenses alleged in the two enhancement paragraphs. Specifically, he argues that the evidence linking him to both convictions is so weak that it renders the jury’s verdict “clearly wrong and manifestly unjust.” Appellant relies upon the fact that the judgment and sentence of each enhancement conviction named Alfred Queen as the person who committed those crimes, not Irrun Christopher Jones, the person named in the indictment. Appellant also argues that the testimony of the State’s fingerprint expert was so unreliable that it undermines confidence in the jury’s finding of true with regard to the enhancement paragraphs.
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 10–11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the evidence before us, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). The jury is in the best position to evaluate the credibility of witnesses, and we are required in our factual-sufficiency review to afford “due deference” to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The fact-finder alone assesses the weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor, Cain, 958 S.W.2d at 408–09, and the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. Our factual-sufficiency review must also discuss the evidence that, according to appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is required to prove these two elements. Id. If the defendant is charged by a different name in a prior indictment used for enhancement, the enhancement portion of the present indictment is sufficient if the State proves that the defendant is the same person in the prior indictment. Rios v. State, 557 S.W.2d 87, 92 (Tex. Crim. App. 1977).
During the punishment phase of the trial, Dalrymple, the State’s fingerprint expert, testified that the fingerprint on each of the judgments and/or jail cards introduced into evidence all matched the fingerprint appellant provided during trial.[3] He noted that the characteristics common between the fingerprints left him with no doubt that appellant and the person previously convicted were the one and the same. Although Dalrymple’s testimony, standing alone, is sufficient to support the jury’s finding that appellant is the same person charged in the two previous convictions, the jury was also allowed to consider all the evidence adduced at the guilt-innocence phase in assessing appellant’s punishment. Rayme v. State, 178 S.W.3d 21, 27 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Duffy v. State, 567 S.W.2d 197, 208 (Tex. Crim. App. 1978)). As previously discussed, appellant testified during the guilt-innocence phase that he was known by both Alfred Queen and Irrun Christopher Jones and that he had been convicted of the offenses alleged in the two enhancement paragraphs, burglary of a habitation and engaging in organized crime.
After considering the evidence in a neutral light, we cannot say that the evidence linking appellant to the convictions was so weak that it renders the jury’s finding of “true” with respect to the two enhancement paragraphs “clearly wrong and manifestly unjust.”
We overrule appellant’s second point of error.
Evidence of Extraneous Wrong or Act
In his third point of error appellant contends that the trial court abused its discretion by allowing testimony that appellant was masturbating in view of a female nurse prior to the assault. Appellant contends that such evidence is inadmissible because: (1) it is irrelevant; (2) it constitutes an extraneous wrong or act used to prove appellant’s character; and (3) its probative value is substantially outweighed by the prejudicial effect.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A). In the present case, appellant filed a motion in limine seeking the exclude any testimony that he was observed masturbating prior to the assault. A motion in limine, however, is a preliminary matter that, on its own, normally preserves nothing for appellate review. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). For error to be preserved with regard to the subject of a motion in limine, an objection must be made at the time the subject is raised during trial. Id. After an adverse ruling on his motion in limine, appellant did not object to the State’s reference to such evidence in its opening statement, nor did he object to Officer Barwald’s testimony that he observed appellant masturbating in front of the nurse prior to the assault. As a result, appellant failed to preserve this issue for appellate review. See id.
We overrule appellant’s third point of error.
Evidence of Prior Conviction
In his fourth point of error, appellant contends that by admitting evidence that he was convicted in 1996 of the misdemeanor charge of failure to identify, the trial court abused its discretion because that conviction is inadmissible for purposes of impeachment because it occurred more than ten years before appellant’s trial. Tex. R. Evid. 609(a), (b) (providing that evidence that witness was previously convicted of felony or crime of moral turpitude is admissible for impeachment purposes, but that convictions more than ten years old are inadmissible unless court determines that probative value of conviction substantially outweighs its prejudicial effect).
To preserve error for appellate review, the complaining party must make a timely objection that states the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). A general or imprecise objection may be sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the court and to opposing counsel. Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (emphasis in original). When the grounds are not specific and the legal basis is not obvious, the issue is not preserved. Id. An objection is sufficient to preserve error for appellate review if it communicates to the trial court what the objecting party wants and, why the objecting party himself is entitled to relief, and it does so in a manner clear enough for the court to understand the complaint at a time when the court is in a position to do something about the purported error. See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992). The complaint raised on appeal must comport with the objection made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); Carty v. State, 178 S.W.3d 297, 305 (Tex. App.—Houston [1st Dist.] 2005, pet ref’d) (holding that objection based on one ground does not preserve complaint for appellate review based on another ground).
Here, the State’s attempt to cross-examine appellant about this conviction drew an objection on the basis of “improper impeachment.” After initially sustaining the objection, the court conducted a hearing on the issue during which the State argued that the evidence of this prior conviction was proper to impeach appellant’s prior testimony that he had been in the Harris County Jail only two times before, and, in the alternative, that evidence of the conviction was admissible—presumably to challenge appellant’s credibility—because it involved a crime of moral turpitude. Appellant argued that he had not testified that he had only been in the jail twice and that the State was misconstruing his testimony; the court agreed and refused to allow the State to use the evidence for that purpose. The court, however, admitted the evidence as a crime of moral turpitude.
Appellant, however, never argued to the trial court—as he does now on appeal—that the prior conviction was inadmissible for purposes of impeachment because the conviction occurred over ten years earlier. Moreover, appellant’s general “improper impeachment” objection was insufficient to inform the trial court that he was objecting to the evidence on the basis of its remoteness. See Tex. R. Evid. 609(a), (b) (providing multiple grounds for finding evidence of prior conviction inadmissible for purpose of impeachment, e.g., conviction for misdemeanor not involving moral turpitude). It is also apparent from the record that the court never considered the remoteness issue when it ruled on appellant’s objection. Having failed to object to the admission of the evidence on the basis of remoteness, appellant has not preserved this issue for appellate review. See Willis v. State, 785 S.W.2d 378, 382 (Tex. Crim. App. 1989) (holding that “point of error on appeal must correspond to precise objection made in the trial court”); Carty, 178 S.W.3d at 305.
We overrule appellant’s fourth point of error .
Jury Charge Error
In his fifth point of error, appellant argues that the trial court erred in denying his request for a jury charge on self-defense because the evidence proffered at trial was adequate to raise the issue.
When reviewing charge errors we must determine whether error actually exists in the charge, and if so, whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). A defendant is entitled to an instruction on any defense supported by the evidence, even if the evidence is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible. Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007). Under what is commonly known as the doctrine of confession and avoidance, a defensive instruction is only appropriate when the defendant admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct. Id. at 659; Ex Parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004) (applying doctrine of confession and avoidance to self-defense).
In the present case, appellant was not entitled to a jury instruction on self-defense because his defensive evidence did not show confession and avoidance, but, rather, a lack of the required culpable act. See Shaw, 243 S.W.3d at 659. Although appellant testified that he grabbed Officer Castro to prevent the officer from hitting him again, he never admitted to the alleged conduct for which he was indicted—pushing Officer Castro, causing him to fall to the floor or striking Officer Castro with his hand. Because appellant never admitted to engaging in the conduct alleged in the indictment, he was not, as a matter of law, entitled to an instruction regarding self-defense. See Shaw, 243 S.W.3d at 659; Ex Parte Nailor, 149 S.W.3d at 132. Thus, the trial court did not err when it denied appellant’s requested self-defense instruction.
We overrule appellant’s fifth point of error.
CONCLUSION
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
[2] See Tex. Penal Code Ann. § 22.01(b)(1) (Vernon Supp. 2009), § 30.02(c)(2) (Vernon 2003), § 71.02 (Vernon Supp. 2009).
[3] Although appellant challenges Dalrymple’s methodology and the reliability of his testimony on appeal, appellant acknowledges that he did not object to the reliability of the expert’s methodology by requesting a hearing prior to trial pursuant to Rule of Evidence 709 nor did he object to the admissibility of the testimony when it was proffered. Therefore, because appellant failed to object, he did not preserve the issue for appeal. Tex. R. App. P. 33.1(a).