11th Court of Appeals
Eastland, Texas
Opinion
Kerry Jon Aitchison a/k/a Kerry Jon Atkinson a/k/a Kerry Attchison
Appellant
Vs. No. 11-03-00187-CR -- Appeal from Taylor County
State of Texas
Appellee
The jury convicted appellant of the offense of possession with intent to deliver methamphetamine in an amount of 4 grams or more but less than 200 grams. Upon finding the enhancement allegations to be true, the jury assessed appellant’s punishment at confinement for 99 years. We affirm.
Appellant presents three points of error on appeal. In the first point, he contends that the trial court erred in admitting into evidence money that appellant possessed when he was arrested. Appellant asserts that the money was seized illegally from his property at the county jail because it was not seized pursuant to his arrest and because it was seized without a warrant. Appellant did not preserve this issue for review because his objection was not timely.
The record shows that Officer Patrick Perez arrested appellant for outstanding warrants and searched appellant incident to his arrest. In his left front pants pocket, appellant had two clear plastic baggies containing methamphetamine and an unlabeled pill bottle containing oxycodone tablets. Officer Perez took appellant to jail. As appellant was being booked into jail, Officer Perez noticed that appellant had a large amount of cash in his wallet – approximately $2,800 in a variety of bills. The money was booked into appellant’s property at the jail but was later retrieved by Agent Les Bruce in order for forfeiture proceedings to be conducted. Agent Bruce testified that he recovered $2,853 from appellant’s personal property, that photocopies were made of the money, and that a civil seizure was filed against the money. Appellant did not object until after all of this testimony about the money. Appellant actually objected when the State offered the photocopies into evidence as an exhibit. The trial court overruled appellant’s objection. We hold that appellant’s untimely objection failed to preserve the issue for review. See Reyes v. State, 84 S.W.3d 633, 638 (Tex.Cr.App.2002). The first point of error is overruled.
In the second and third points, appellant contends that the evidence is factually and legally insufficient to support the jury’s finding of true to the enhancement allegations. Appellant specifically complains of a variance between the date alleged in the indictment and the date shown in the judgment of his prior conviction for robbery.
The second enhancement paragraph of the indictment alleged that appellant was convicted on January 9, 1989. The abstract of judgment from California that was in appellant’s pen packet shows two different dates. The date of conviction shows to be May 19, 1987, but the date of the hearing and the date that sentence was pronounced both show to be January 9, 1989. Either way, this conviction occurred prior to the commission of the other offense alleged for enhancement purposes. See TEX. PEN. CODE ANN. § 12.42(d) (Vernon Supp. 2004 - 2005). The record further indicates that the indictment correctly alleged the cause number of each prior offense, the convicting court and its location, the name of the offense, and the fact that the offense was a felony. Appellant did not allege, argue, or prove that the variance in the date surprised, misled, or otherwise harmed him. Thus, the variance between the enhancement allegations and the proof was not fatal, and the evidence is sufficient to support the finding of true. See Thompson v. State, 563 S.W.2d 247, 250-51 (Tex.Cr. App.1978); Benton v. State, 770 S.W.2d 946, 947-48 (Tex.App. - Houston [1st Dist.] 1989, pet’n ref’d). Appellant’s second and third points of error are overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
January 31, 2005
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.