NO. 07-03-0249-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 29, 2004
______________________________
JIMMY MURRELL OWEN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 13,849-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following appellant Jimmy Murrell Owen’s plea of not guilty, a jury convicted him of
conspiracy to commit burglary of a habitation, and the trial court assessed punishment at
20 years confinement. Presenting two issues, appellant contends the trial court erred in:
(1) denying his motions to quash and to set aside the indictment; and (2) sentencing him
to 20 years confinement when he was convicted of only a third degree felony. We affirm.
In July 2001, the Randall County Grand Jury returned an indictment against
appellant for conspiracy to commit burglary of a habitation. The indictment alleged, in
pertinent part, that appellant:
on or about the 6th day of February, A.D. 1998, and before the presentment
of this indictment, . . . did then and there, with intent that a felony, to-wit:
burglary of a habitation, be committed, agree with Keymathe Marsh that
Keymathe Marsh would engage in conduct that would constitute said
offense, and the said Keymathe Marsh did perform an overt act in pursuance
of the said agreement, to-wit: the said Keymathe Marsh committed burglary
of a habitation.
Appellant filed a pro se motion to quash the indictment maintaining it violated his right to
a speedy indictment under article 32.01 of the Texas Code of Criminal Procedure
Annotated (Vernon 2003)1 and his right to a speedy trial under both state and federal
1
Article 32.01 provides:
When a defendant has been detained in custody or held to bail
for his appearance to answer any criminal accusation before
the district court, the prosecution, unless otherwise ordered by
the court, for good cause shown, supported by affidavit, shall
be dismissed and the bail discharged, if indictment or
information be not presented against such defendant on or
before the last day of the next term of the court which is held
after his commitment or admission to bail or on or before the
180th day after the date of commitment or admission to bail,
whichever is later.
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constitutions. Some seven months later, appellant filed a pro se motion to set aside the
indictment again asserting violations of article 32.012 and deprivation of his speedy trial
rights. In addition, appellant claimed the indictment was defective because it failed to
provide: (1) the name of the person having ownership of the alleged habitation; and (2)
a description of the habitation alleged to have been burglarized.
On April 14, 2003, the trial court conducted a hearing on appellant’s motions, which
were adopted by his court-appointed attorney. Regarding the motion to set aside the
indictment, appellant’s attorney argued, “My client is saying, look, if this guy committed
burglary of a habitation and I don’t know whose habitation is burglarized, I could get
charged with conspiracy on every burglary of a habitation that the co-conspirator
committed.” He continued,
[a]nd we know what we’re charged with, but because of the fact that the
overt act alleged in this indictment is that this co-conspirator committed
burglary of a habitation, we’re saying, hey, to prevent us from being
prosecuted in the future, or in the same crime, give us the name of the place
he burglarized or give us a location.
(Emphasis added). Following the presentation of evidence and arguments of counsel, the
trial court denied the motions and proceeded to empanel a jury.
2
All references to articles are to the Code of Criminal Procedure, unless otherwise
designated.
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At trial, the evidence revealed that in February 1998, appellant, who was unhappy
with the representation he received from an attorney named Selden Hale in a family law
matter, enlisted the help of Keymathe Marsh and another individual to break into Hale’s
house, burglarize it, and burn it down. After the jury found appellant guilty of the offense,
the trial court dismissed the jury and conducted a hearing on punishment.
By his first issue, appellant contends the trial court erred in denying his motions to
quash and to set aside the indictment in this case. We disagree. Appellant argues the
charging instrument was defective because “it gave no indication of the facts of the felony
to be committed under the alleged conspiracy.” A timely and reasonably specific objection
is required to preserve error for appellate review. Tex. R. App. P. 33.1(a); Butler v. State,
872 S.W.2d 227, 236 (Tex.Cr.App. 1994), cert. denied, 513 U.S. 1157, 115 S.Ct. 1115,
130 L.Ed.2d 1079 (1995). In addition, the objection at trial must comport with the error
complained of on appeal . Goff v. State, 931 S.W.2d 537, 551 (Tex.Cr.App. 1996), cert.
denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). At trial, appellant
contended the indictment failed to specify (1) the name of the person who owned the
house that was burglarized or (2) a description of the habitation. On appeal, appellant
expands his complaint to contend “the language ‘burglary of a habitation’ is not factually
sufficient to provide the required notice of the specific conduct or acts allegedly committed
by him that the State would be relying upon in obtaining a conviction.” Because appellant’s
complaint on appeal does not comport with his objection at trial, the issue presents nothing
for review. Trevino v. State, 991 S.W.2d 849, 855 (Tex.Cr.App. 1999).
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By his second issue, appellant contends the trial court erred in sentencing him to
20 years confinement when he was convicted of a third degree felony. By his argument,
he contends the jury found him guilty of conspiracy to commit burglary of a habitation and
that arson was not included in the charged offense. We disagree.
Aggravating factors, such as if a felony other than felony theft had been committed
during the burglary offense are to be decided at the punishment phase. See Taylor v.
State, 632 S.W.2d 697, 700 (Tex.App.--Fort Worth 1982, pet. ref’d). Here, evidence of
arson was introduced by the State at both the guilt/innocence and the punishment phase;
however, appellant did not object to the admission of the evidence of arson of the
habitation.
Moreover, by its charge during guilt/innocence, the trial court instructed the jury on
the definition of burglary and the felony offense of arson. Notwithstanding the charge,
appellant did not object to the instruction on arson as required by article 36.15. See also
Thiel v. State, 676 S.W.2d 593, 594 (Tex.Cr.App. 1984). As discussed in Butler a
reasonably specific objection is required in the trial court to preserve a complaint for
appellate review. 872 S.W.2d at 236. An additional requirement is that an objection “must
be made at the earliest possible opportunity.” Wilson v. State, 71 S.W.3d 346, 349
(Tex.Cr.App. 2002). Considering that appellant does not suggest that preservation of error
need not be demonstrated, that he had at least three opportunities to object to the arson
question, but failed to timely present any reasonably specific objection in the trial court,
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and that he has not provided us with citation to any legal authority supporting his argument,
his second issue is overruled. Williams v. State, 91 S.W.3d 460, 462 (Tex.App.--Amarillo
2003, no pet.).
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
.
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