Leland Milburn v. State ( 2005 )

NO. 07-04-0100-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 16, 2005
______________________________
LELAND RAY MILBURN
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 31st DISTRICT COURT OF HEMPHILL COUNTY;
NO. 2533; HON. STEVEN R. EMMERT, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1
Leland Ray Milburn appeals his conviction for possessing a controlled substance.
His two issues concern whether the trial court erred in refusing to instruct the jury on
probation and in admitting an exhibit evincing a prior misdemeanor conviction for
possessing marijuana. We affirm.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of A ppe als, sitting by as signme nt. Tex. Gov’t Code
Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 ).
Underlying the first issue is the question of whether appellant had previously been
convicted of a felony. Though previously convicted of one days before being tried for the
offense giving rise to this appeal, appellant argues that the conviction could not be deemed
final since it was still subject to appeal. That is, appellant does not argue that the
conviction was appealed but that the time within which an appeal could be perfected had
not lapsed. And, because of this, the prior conviction could not be considered final for
purposes of determining appellant’s entitlement to probation. We disagree.
The Court of Criminal Appeals recently held: “. . . when there is no evidence that
a defendant ever filed a notice of appeal, a conviction is deemed to be final on the date of
sentencing.” Jones v. State, 77 S.W.3d 819, 820 (Tex. Crim. App. 2002).2 We are cited
to no evidence of record indicating that, at the time this cause was tried, the prior conviction
of which appellant speaks was appealed. Nor does our review of the record uncover any
such evidence. So, because one cannot receive probation if previously convicted of a
felony, see TEX . CODE CRIM . PROC . ANN . art. 42.12, §4(e) (Vernon Supp. 2004-2005)
(stating that a defendant is eligible for community supervision or probation if before trial
begins the defendant files a sworn motion stating that he has not previously been convicted
of a felony, among other things), and nothing of record illustrates that his prior felony
conviction had been appealed, then the trial court was not obligated to instruct the jury on
probation.
As to the admission of the prior misdemeanor conviction for possessing marijuana,
we find the error, if any, was waived. This is so because by the time appellant objected,
2
Appellant asks that we not follow Jones. Given that it is an opinion of the Court of Criminal Appeals,
we mu st follow it.
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he, through his counsel, had already solicited testimony about the conviction. Having
personally introduced evidence of the conviction earlier, appellant cannot complain when
the State also addresses the subject. Heidelberg v. State, 36 S.W.3d 668, 672 (Tex. App.
–Houston [14th Dist.] 2001, no pet.)
Moreover, the ground underlying appellant’s complaint on appeal was not mentioned
at trial. Here, he relies on Rule 609 of the Texas Rules of Evidence to assert that only a
prior felony conviction could be used to impeach a witness and the conviction at issue was
simply a misdemeanor. Yet, appellant said nothing of Rule 609 below, relying instead upon
Rules 403 and 404(b). Because the grounds uttered now were unmentioned at trial, they
were and are waived. See TEX . R. APP . P. 33.1; Santellan v. State, 939 S.W.2d 155, 171
(Tex. Crim. App.1997) (holding that the grounds asserted on appeal must comport with
those raised at trial otherwise they are waived).
Accordingly, we overrule both issues of appellant and affirm the trial court’s
judgment.
Brian Quinn
Chief Justice
Do not publish.
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