Affirmed and Opinion filed November 23, 2005.
In The
Fourteenth Court of Appeals
____________
NO. 14-04-00730-CR
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KENNETH CARL BILSKI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 13,959
O P I N I O N
Appellant Kenneth Carl Bilski appeals his conviction for possession of less than one gram of cocaine.[1] In seven points of error, appellant alleges that (1) the evidence is legally and factually insufficient to support a guilty verdict; (2) appellant=s right to counsel was violated because his waiver was involuntary; (3) the evidence is insufficient to support the trial court=s finding that appellant knowingly and intelligently waived his right to counsel; (4) appellant was egregiously harmed when the trial court improperly instructed the jury at the guilt/innocence phase; (5) the trial court erred in admitting extraneous offense evidence; (6) appellant was egregiously harmed by the trial court=s failure to properly instruct the jury at the punishment phase; and (7) the evidence is legally insufficient to support the enhancement of appellant=s punishment.
Background
In March 2003, the grand jury indicted appellant for knowingly and intentionally possessing less than one gram of cocaine. The indictment also alleged that appellant had been convicted of two prior felonies: aggravated assault in 1990 and driving while intoxicated in 1999.
Appellant=s case was called for trial on July 6, 2004. Before voir dire began, appellant=s counsel, Conrad Day, notified the court that although Day had been appointed about a year earlier, appellant no longer wanted Day to represent him. Appellant felt that the motions Day had filed had been ineffective and was displeased that Day had suggested a guilty plea. Day told the court that he had explained that if appellant wished to represent himself, he would have to sign a waiver. Appellant then asked the court to set a bond so that he could travel to Houston to hire his own attorney. He stated that he had spoken to a Houston attorney about four months earlier. After noting that appellant had had ample opportunity to resolve these issues before trial, the court refused to postpone the proceedings. Appellant responded: AAll I can say is I=ll just have to represent myself. I=m not a lawyer though.@
The court then advised appellant of the waiver requirement and asked if appellant understood the charges against him. Appellant confirmed that he understood that he was charged with the AState jail felony@ of possession of a controlled substance and that the indictment also alleged two prior felony convictions. The court explained how appellant=s sentence would be affected if a court or jury found those allegations to be true, and appellant stated that he understood.[2] When the court questioned appellant about his education and experience, appellant stated that he had attended school through the ninth grade, had earned his GED (General Educational Development), and had partially represented himself in a prior civil suit in federal court. Appellant also stated that he understood that he was required to abide by the rules of evidence and that he might make costly mistakes without counsel=s assistance. At the end of this questioning, when the court asked whether appellant wanted Day to represent him or whether appellant wished to represent himself, appellant reiterated: AI will represent myself.@ Appellant also declined to use Day as standby counsel, stating: AHonestly, I would rather take the bull by the horns and do what I can.@
After appellant signed the waiver of his right to counsel, the court announced that it was required to advise appellant of Athe dangers and disadvantages@ of representing himself. Specifically, the court told appellant: AI=ve tried to tell you that you might make mistakes and that you=re not qualified to do this and I highly recommend that you let Mr. Day continue as your lawyer but if you chose [sic] to you have a right to waive counsel.@ After this admonishment, appellant stated that he had no questions and that he had voluntarily signed the waiver of counsel. Appellant also stated that he understood that he could ask the court to reappoint Day as his standby counsel at any time, but he again declined such assistance. Appellant also stated that he understood that the court would not give him advice during the trial and would hold appellant to the same standards as a licensed attorney.
At the prosecutor=s request, the court informed appellant that it would not stop the trial to appoint a new lawyer. Before withdrawing as counsel, Day advised appellant not to represent himself and opined that the indictment legitimately enhanced appellant=s potential sentence. Day also gave appellant his trial notebook.
At trial, appellant=s mother, Dorothy Bilski, testified that when she arrived home from work, she saw appellant sitting in the carport.[3] According to his mother, appellant appeared very weak and nauseated and told her that he had a bad headache. Later that evening, appellant=s mother overheard a telephone conversation during which appellant asked someone Ato bring him some pain reliever.@ Three people arrived at the house apparently in response to appellant=s request. After they left, appellant=s mother checked on appellant and found him gagging over the sink. When she checked on him a second time, appellant=s mother realized that appellant Awas fixing to give himself an injection@ because he Ahad his arm laid out and he had a needle.@
Appellant=s mother testified that she grabbed the syringe out of appellant=s hand and hid it in a bowl in her kitchen cabinet. She also testified that appellant followed her into the house and asked for the syringe. Appellant=s mother called 911 and when officers arrived, she gave the syringe to deputy Brad Kuecker. Appellant=s mother testified that the syringe was not hers and stated that she had acted to save her son=s life.
Kuecker arrested appellant for possession of a controlled substance after a field analysis revealed that the syringe contained cocaine. Narcotics officer Chris Jackson, who assisted Kuecker in arresting appellant, testified that the crime lab later confirmed that there were .21 grams of cocaine in the syringe.[4] On cross-examination, appellant asked his mother whether Athe officer went over there and arrested me for something you handed him,@ to which she responded affirmatively. Kuecker also testified that he did not take the syringe directly from appellant and that when he asked appellant who the syringe belonged to, appellant did not answer. Kuecker also testified that at the time of the arrest, appellant was Asweating very badly and seemed to be very nervous,@ that he had red bloodshot eyes, and that there was Aa strong odor of alcoholic beverage coming from him.@
On cross-examination, appellant also asked his mother why the officers had arrested him. When his mother replied that appellant had been on parole at the time, appellant objected that Athe fact that she has brought up my priors, the fact that I was on parole@ was irrelevant. The court overruled appellant=s objection. On direct examination, Kuecker also testified that he had been aware of appellant=s prior convictions for possession of a controlled substance. When the prosecutor asked whether this knowledge had influenced him in arresting appellant, Kuecker responded affirmatively. When questioned by appellant on re-cross-examination, Kuecker testified that appellant had also told him that he Ahad been to the pen three times.@
Appellant testified in his own defense after assuring the court that he understood that he had a right not to testify and that the prosecution could cross-examine him if he chose to testify. Appellant claimed that the syringe was not his and repeatedly stated that he was not in possession of the cocaine at the time of his arrest. Appellant also asserted that his mother was not a credible witness. On cross-examination, appellant admitted that he had told the venire persons that he had been to the penitentiary twice, although he had actually been convicted of a felony offense four times. When asked about his decision to represent himself, appellant testified: AI was in the intention [sic] that we had 43 jurors out there and you=re going to take this or represent yourself. So I=m in betweenBI=m stuck in between a rock and a hard spot and I=m doing the best I can.@ Appellant also claimed that AI fired a person that was assigned to me, because in my heart I didn=t feel he was a lawyer. He showed no defense to representation of me or nothing.@
The jury found appellant guilty of possession of a controlled substance. At the punishment phase, appellant pleaded true to both allegations in the enhancement paragraph of the indictment. The jury assessed appellant=s punishment at eight years= confinement in the Institutional Division of the Texas Department of Criminal Justice and a $2,000 fine.
Legal and Factual Sufficiency
In his first point of error, appellant alleges that the evidence is legally and factually insufficient to support a guilty verdict. Specifically, appellant argues that the only incriminating evidence is his mother=s testimony, which he characterizes as uncorroborated accomplice witness testimony. We find that appellant=s mother=s testimony does not constitute accomplice witness testimony and that the evidence is both legally and factually sufficient to support a verdict that appellant was in possession of a controlled substance.
In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
In a factual sufficiency review, we must view all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient if, when considered by itself, the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt and thus renders the conviction clearly wrong and manifestly unjust. Id. at 85; Vasquez, 67 S.W.3d at 236. Alternatively, evidence is factually insufficient if the evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard cannot be met, even if evidence supporting guilt outweighs the evidence to the contrary. Zuniga, 144 S.W.3d at 484. Again, the reviewing court may not substitute its own judgment for that of the jury and may not intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony. Vasquez, 67 S.W.3d at 236.
To obtain a conviction for possession of a controlled substance in this case, the State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed less than one gram of cocaine. Tex. Health & Safety Code Ann. _ 481.102(3)(D) (Vernon Supp. 2005), ' 481.115 (Vernon 2003). In any possession case, the State must prove that the defendant exercised actual care, custody, control, or management over the contraband and that the defendant knew that the object he or she possessed was contraband. Villareal v. State, 116 S.W.3d 74, 79 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Evidence that affirmatively links the defendant to the contraband suffices as proof that he or she possessed it knowingly. Id. This evidence may be direct or circumstantial, and it must establish that the defendant=s connection with the drug was more than fortuitous. Id.
When a defendant is not in exclusive control or possession of the place where the contraband is found, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the defendant knew of the contraband=s existence and that he or she exercised control over it. Villareal, 116 S.W.3d at 79 (citing Porter v. State, 873 S.W.2d 729, 732 (Tex. App.CDallas 1994, pet. ref=d)). Courts do not use a rigid formula to determine whether sufficient affirmative links exist; rather, affirmative links are established by a totality of the circumstances test. Id.
Viewing the evidence in the light most favorable to the verdict, we find that the evidence is legally sufficient because there are affirmative links connecting appellant to the cocaine. A field test revealed and lab tests later confirmed that the syringe contained cocaine. Appellant=s mother testified that she took the syringe away from appellant in the utility room, which was a space predominately occupied by appellant. Officers also found a white substance in a plastic bag in the same room. Appellant=s mother also testified that shortly before she saw appellant with the syringe, she overheard a phone call during which appellant asked someone to bring him some Apain reliever.@ Appellant=s mother denied ownership of the syringe and testified that she had called 911 in order to save her son=s life. Officer Kuecker testified that appellant seemed nervous and was sweating when the police arrived. The totality of these circumstances suggests that appellant=s connection with the cocaine was more than fortuitous; accordingly, we find that the evidence is legally sufficient to support appellant=s conviction beyond a reasonable doubt.
Furthermore, viewing the evidence in a neutral light, we find that it is factually sufficient to support appellant=s conviction. Although appellant denied that the syringe belonged to him, as the sole judge of witness credibility, the jury was free to disbelieve his testimony. Similarly, although appellant=s mother was in possession of the syringe when police arrived, she claimed that she had taken it away from her son and called 911. As the sole judge of witness credibility and weight of testimony, the jury was free to believe this explanation despite appellant=s assertion that his mother was not credible. Finally, signs that appellant may have been intoxicated do not negate the facts that appellant=s mother overheard her son=s request for Apain reliever@ shortly before she found the syringe and that police found a white substance in a bag in appellant=s room. Thus, we find the evidence sufficient to support appellant=s conviction beyond a reasonable doubt.
Appellant argues that the evidence is legally insufficient because his mother=s testimony constitutes uncorroborated accomplice witness testimony.[5] We disagree. A person is an accomplice if he or she participated before, during, or after the crime and could be prosecuted for the same or lesser included offense as the defendant. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999); Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998). This requires that there be sufficient evidence tending to connect the accomplice to the crime as a blameworthy participant. Blake, 971 S.W.2d at 455. A person who is merely present at the scene of the offense is not an accomplice; an affirmative act or omission is required. Id. at 454.
The evidence does not suggest that appellant=s mother was a blameworthy participant in the offense. Although appellant=s mother, not appellant, was in exclusive possession of the syringe when police arrived, she voluntarily called 911 and immediately gave the syringe to Officer Kuecker upon his arrival. These actions appear consistent with appellant=s mother=s assertion that the syringe was not hers and that she temporarily confiscated it out of concern for her son.
Alternatively, appellant argues that his mother was an informant within the meaning of Texas Code of Criminal Procedure Article 38.141, and therefore her uncorroborated testimony is insufficient to support a guilty verdict. See Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005). We also find this argument unpersuasive. Article 38.141(a) provides:
a defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
Tex. Code Crim. Proc. Ann. art. 38.141. When interpreting Article 38.141, courts look to case law interpreting Article 38.14 because the two statutes are so similarly worded. Young v. State, 95 S.W.3d 448, 450 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). Courts have acknowledged that the purpose of the corroboration requirement in Article 38.14 is to ensure that a conviction rests upon more than just the testimony of an accomplice because an accomplice may have a selfish incentive to be untruthful, such as to avoid or lessen punishment or to shift the blame to another person. Young, 95 S.W.3d at 451; Blake, 971 S.W.2d at 454; Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.CAustin 2002, no pet.). Similarly, courts have recognized that confidential informants often work with police for self-interested reasons and Agenerally have an incentive or hope for personal gain,@ such as monetary compensation or dismissal of pending charges. Cantelon, 85 S.W.3d at 460; see also Young, 95 S.W.3d at 451 (stating that Aconfidential informants may have incentives . . . to shade their testimony in favor of the State in the hope that they will be rewarded with greater leniency later on@). Accordingly, courts have applied the same corroboration standard to Article 38.141. Id.
Appellant reasons that because police obtained the same type of information from his mother as they often learn from confidential informants, his mother also must be a confidential informant subject to the corroboration standard. However, the inherent self-interest that makes accomplice and confidential informant testimony potentially unreliable does not appear to exist in this case. There is no evidence that appellant=s mother was working with police prior to calling 911 or that she would somehow personally benefit by reporting appellant=s cocaine possession to the authorities. Therefore, because appellant=s mother was not an informant within the meaning of the statute, her testimony did not need to be corroborated. Accordingly, we find that the evidence is both legally and factually sufficient to support appellant=s conviction beyond a reasonable doubt and overrule appellant=s first point of error.
Waiver of Right to Counsel
In his second and third points of error, appellant contends that his right to counsel was violated because his waiver of counsel was involuntary, and the evidence is insufficient to support a finding that he knowingly and intelligently waived that right. We disagree.
A defendant has a constitutional right to proceed without the assistance of counsel when he or she voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 818-20 (1975). A defendant=s waiver of counsel is made voluntarily if it is uncoerced. Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. App. 1997). The decision to proceed pro se is made knowingly and intelligently if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. Faretta, 422 U.S. at 834-36. This means that the trial court must thoroughly admonish the defendant, so that the record reflects that the defendant Aknows what he is doing and his choice is made with eyes open.@ Id. There is no specific formula that establishes a knowing and intelligent waiver; however, a trial judge must actively assess a defendant=s waiver of counsel. Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). Furthermore, courts must indulge every reasonable presumption against the validity of such waiver. Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978).
We find that appellant=s waiver of the right to counsel was voluntary and that the evidence is sufficient to establish that appellant=s waiver was knowing and intelligent. First, appellant=s waiver was voluntary because he was not coerced into representing himself. The week of the trial, appellant asked the court to set a bond so that he could hire a new lawyer. Appellant=s assigned counsel, Conrad Day, informed the court that he and appellant had discussed the possibility of appellant representing himself sometime during the previous week. The trial judge stated that he did not want to delay the trial because the case was old and appellant had had ample opportunity to resolve his problems with Day before the week of the trial. Accordingly, the court denied appellant=s request for a bond but informed appellant that he could either proceed to trial with Day as his counsel or he could represent himself. The trial court asked twice whether appellant wished to use Day as standby counsel; however, appellant refused to accept any aid from Day, asserting that he Awould rather take the bull by the horns and do what I can.@ Thus, given the choice between representing himself and having Day represent him in any capacity, appellant clearly chose to represent himself. Appellant had other options available besides proceeding pro se; therefore, we find that he voluntarily waived the assistance of counsel.
Secondly, the evidence is sufficient to support the trial judge=s finding that appellant waived his right to counsel knowingly and intelligently because the trial court thoroughly admonished appellant, and appellant confirmed that he understood the admonishments. In Collier, the Court of Criminal Appeals examined the admonishments given by the trial court and held that the defendant knowingly and intelligently waived his right to counsel. 959 S.W.2d at 626. In Collier, the trial court explained that the defendant, who had earned his GED, was required to follow the rules of evidence and procedure without any special consideration and warned that as a result, the defendant might be disadvantaged at trial and in any consequent appeal. Id. The trial court also explained the nature of the charges against Collier, the fact that lesser included offenses might be submitted to the jury, and the possible range of punishment. Id. Finally, the court repeatedly tried to impress upon Collier Athe extreme gravity of his request to proceed pro se and the likelihood that it was a serious mistake.@ Id.
In the instant case, in response to the court=s questioning, appellant acknowledged that he was charged with the state jail felony of possession of a controlled substance and that the indictment contained two enhancement paragraphs. As in Collier, the court explained the consequences of the enhancements, stating specifically that if the enhancements were found to be true, the offense would constitute a second-degree felony punishable by incarceration for two to twenty years and a fine of up to $10,000. The court also cautioned that Ajust going to trial here on a State jail felony there=s more risk to it than first meets the eye.@ Like Collier, who had earned his GED, appellant attended high school through the ninth grade, earned his GED, and stated that he could read and write English Afairly well.@ Appellant also told the court that he had partially represented himself in a prior civil suit. As in Collier, the court told appellant that he must abide by all the legal rules applicable to criminal cases and that the court would treat him as a qualified lawyer. The court also warned appellant: A[Y]ou might accidentally let some evidence come before the jury that could be kept out, and Mr. Day is fully aware of what those rules are, and I=m afraid if you represented yourself that you may not be able to understand all the rules of evidence, etcetera, that apply and you could make a mistake that would cost you.@ Finally, the court advised that there were Adangers and disadvantages@ in proceeding pro se and told appellant: AI=ve tried to tell you that you might make some mistakes and that you=re not qualified to do this and I highly recommend that you let Mr. Day continue as your lawyer.@
The record reflects that the judge thoroughly admonished appellant and that appellant understood the consequences of proceeding to trial without the assistance of counsel. Therefore, because we find that appellant voluntarily waived his right to counsel and that the evidence is sufficient to support a finding that appellant=s waiver was knowing and intelligent, we overrule appellant=s second and third points of error.
Jury Instructions at Guilt/Innocence Phase
In his fourth point of error, appellant argues that the trial court erred in failing to instruct the jury that appellant=s mother was an accomplice witness and in failing to give a limiting instruction on the use of extraneous offense evidence at the guilt/innocence phase. Appellant argues that these omissions caused him egregious harm.
In examining a jury charge on appeal, an appellate court must first determine whether any error exists. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). Once an appellate court has determined that error exists, the court must determine whether the error was sufficiently harmful to require reversal. Id. at 170-71 (citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)). When, as in this case, there is no objection to an allegedly erroneous jury charge, courts must evaluate the charge under an Aegregious harm@ standard. Id. at 171 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).
Consistent with our holding on appellant=s first point of error, we find that the trial court did not err by failing to give an instruction on accomplice testimony because appellant=s mother was not an accomplice witness as a matter of law.
We also find that the trial court did not err by failing to issue a limiting instruction on the use of extraneous offense evidence. Texas Rule of Evidence 105(a) states:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court=s action in admitting such evidence without limitation shall not be a ground for complaint upon appeal.
Tex. R. Evid. 105(a) (Vernon 2003). In other words, a trial court is not required to give a limiting instruction if a defendant fails to request such instruction at the first opportunity or Acontemporaneous with the admission of the evidence@; without an objection, the evidence becomes a part of the general evidence and may be considered for all purposes. Hammock v. State, 46 S.W.3d 889, 895 (Tex. App.CHouston [1st Dist.] 2001, no pet.); see also Arana v. State, 1 S.W.3d 824, 829 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d); Salvidar v. State, 980 S.W.2d 475, 493 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d.). Appellant did not request a limiting instruction when witnesses testified about his prior offenses. Therefore, appellant was not entitled to a limiting instruction in the jury charge and the trial court=s failure to give one was not erroneous. We overrule appellant=s fourth point of error.
Extraneous Offense Evidence
In his fifth point of error, appellant argues that the trial court erred when it admitted extraneous offense evidence in the form of testimony regarding his prior convictions. Specifically, appellant alleges that the trial court improperly overruled his objection that Athe prosecution is merely trying to prosecute on my prior convictions@ when the State questioned Kuecker about appellant=s prior arrests for possession of a controlled substance. Appellant also complains that the court improperly overruled his objection that Athis statement shouldn=t be docketed due to the fact that she has brought up my priors, that I was on parole, that that=s [sic] not relevant to the case here@ when his mother stated on cross-examination that the officers had arrested appellant because he had been on parole.
We review a trial court=s decision on the admissibility of evidence using an abuse of discretion standard. Oveal v. State, 164 S.W.3d 735, 742 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (citing Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990)). We must uphold the trial court=s ruling if it is reasonably supported by the record and is correct according to any theory of law applicable to the case. Id. (citing State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)).
We find that the trial court did not abuse its discretion in admitting the testimony of Kuecker and appellant=s mother regarding appellant=s prior offenses. First, even before Kuecker testified for the State, appellant invited testimony about his parole when he asked his mother on cross-examination why he had been arrested. Appellant cannot invite such a response and then complain about it on appeal. See Ex Parte Guerrero, 521 S.W.2d 613, 614 (Tex. Crim. App. 1975). Secondly, Kuecker=s comments about appellant=s prior arrests for possession of a controlled substance explained the context of appellant=s arrest. A police officer may testify about the course of events leading to the arrest of a suspect. Lee v. State, 29 S.W.3d 570, 578 (Tex. App.CDallas 2000, no pet.). Accordingly, we find that the trial court did not abuse its discretion by admitting references to appellant=s prior convictions.[6] We overrule appellant=s fifth point of error.
Jury Instructions at Punishment Phase
In his sixth point of error, appellant alleges that he was egregiously harmed by the trial court=s failure to properly instruct the jury at the punishment phase. Specifically, appellant argues that the trial court erred by failing to assign the burden of proof to the State regarding the enhancement paragraphs and by failing to instruct that the jury must find that the prior convictions were in sequence to impose a second-degree punishment range.
We find no error in the jury instructions. Texas Penal Code Section 12.42(a)(2) provides:
If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.
Tex. Pen. Code Ann. ' 12.42(a)(2) (Vernon 2003). The enhancement paragraphs alleged that appellant had two prior felony convictions: one for aggravated assault in 1990 and one for DWI in 1999. Appellant pleaded true to both enhancements. The State has the burden of proof on enhancements to show that a prior conviction was final and that the defendant was the person previously convicted of that offense. Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984). However, if a defendant pleads true to the enhancement paragraph, the State=s burden of proof is satisfied. Id.; see also Mikel v. State, 167 S.W.3d 556, 559 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (stating that when a defendant pleads true to an enhancement paragraph, the State is relieved of the burden of proving the enhancements).[7] Because appellant pleaded true to both enhancements, the State met its burden of proof; therefore, instructions on the burden of proof and the sequence of convictions were not necessary. We find no error in the jury instructions and overrule appellant=s sixth point of error.
Enhancement of Punishment
In his seventh and final point of error, appellant argues that the evidence is legally insufficient to support the enhancement of his punishment from a state jail felony to a second-degree felony.[8] Again, when a defendant pleads true to an enhancement paragraph, the State=s burden has been satisfied. Wilson, 671 S.W.2d at 525; Mikel, 167 S.W.3d 556 at 559. Furthermore, after pleading true to the enhancements, a defendant cannot later complain on appeal that the evidence is insufficient. Dinn v. State, 570 S.W.2d 910, 915 (Tex. Crim. App. 1978).
Appellant pleaded true to both enhancement paragraphs; therefore, he cannot complain about the sufficiency of the evidence. Accordingly, we find that the evidence is legally sufficient to support the enhancement of appellant=s sentence. We overrule appellant=s final point of error and affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed November 23, 2005.
Panel consists of Chief Justice Hedges and Justices Yates and Anderson.
Do Not Publish C Tex. R. App. P. 47.2(b).
_
[1] Appellant was sentenced to eight years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a $2,000 fine.
[2] The trial court stated: A[I]t=s my understanding that it would be a second degree felony and the range of punishment would be not more than 20 years or less than 2 years in the penitentiary and a fine of up to $10,000.@ Regarding the state jail felony, the court also told appellant that Athere=s more risk to it than meets the eye.@
[3] Appellant lived in a utility room adjacent to his mother=s carport. Appellant=s mother testified that she never locked her house and that appellant could go inside whenever he wished.
[4] Officers also found a plastic bag containing a white substance on the floor of the room that appellant had been occupying.
[5] AA conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.@ Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).
[6] In his brief, appellant also suggests that the probative value of the extraneous offense evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under Texas Rule of Evidence 403. However, appellant did not object on these grounds at trial; therefore, these issues were not preserved for appellate review. See Tex. R. App. P. 33.1(a)(1)(A) (requiring objections to state grounds with sufficient specificity to make the trial court aware of the complaint in order to preserve the issue for appeal).
[7] A narrow exception to this rule is when the record affirmatively reflects that a prior conviction was not final at the time the subsequent offense was committed. Mikel, 167 S.W.3d at 559. There is no evidence that appellant=s prior convictions were not final when he committed the most recent offense; therefore, this exception does not apply or affect our analysis in the instant case.
[8] Appellant also claims that the alleged insufficiency of the evidence violated his right to due process of law under both the Texas and the United States Constitutions. However, appellant neither cites authority to support this position nor explains his reasoning. Accordingly, we will not address this argument. See Tex. R. App. P. 38.1(h) (requiring an appellant=s brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).