Jeffery Popp v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00140-CR

Jeffery Popp,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2002-277-C

MEMORANDUM Opinion

Jeffery Popp’s house in West, Texas, was the subject of a raid by a local drug task force.  Popp discarded a baggie containing amphetamine as the officers attempted to arrest him.  Numerous items were found in and around Popp’s house, suggesting that he also manufactured amphetamine and methamphetamine.  Popp was convicted of possessing amphetamine in an amount more than 4 grams but less than 400 grams.  The jury assessed his punishment at 11 years in prison.  We affirm.

Popp brings 11 issues alleging errors in his proceedings below.  In his first issue, he contends that the trial court erred in admitting extraneous offense evidence in violation of the Texas Rules of Evidence.

At trial, Popp objected under Rules 404(b) and 403 to the admission of antihistamine tablets, lithium batteries, a plastic trash bag containing parts of disassembled lithium batteries, a hydrochloric gas generator, muratic acid, and salt into evidence and to the testimony of the use of the items in the manufacture of methamphetamine and amphetamine.  Additionally, Popp objected under the same rules to the admission of a propane tank containing anhydrous ammonia. 

The State contends that the evidence was admissible to show Popp’s knowledge of possession of the amphetamine.  Tex. R. Evid. 404(b).  Knowledge, or criminal intent, is an essential element of the crime of possession of a controlled substance.  Arnott v. State, 498 S.W.2d 166, 176 (Tex. Crim. App. 1973) (op’n on reh’g). Evidence which tends to show knowledge is a relevant and admissible part of the State’s case even though that evidence may show the accused committed another crime.  Id. at 176 & 177; see Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op’n on reh’g). 

Evidence of the tools of manufacturing methamphetamine and amphetamine which were recovered from Popp’s house tends to show Popp knew he possessed amphetamine. See Pigg v. State, 760 S.W.2d 330, 332 (Tex. App.—Beaumont 1988, no pet.); see also Bunch v. State, No. 07-01-0171-CR, 2002 Tex. App. LEXIS 3947 *6 (Tex. App.—Amarillo 2002, pet. ref’d) (not designated for publication).  Thus, the trial court did not abuse its discretion in admitting the evidence and the testimony of each item’s use over Popp’s Rule 404(b) objection.

But Popp also argues that even if relevant, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.  Tex. R. Evid. 403.  As an appellate court, we must measure the trial court’s ruling against the relevant criteria by which a Rule 403 decision is to be made.  Montgomery, 810 S.W.2d at 392.  In examining the challenged evidence and weighing its admissibility under the factors suggested by Montgomery, the trial court did not abuse its discretion in admitting the evidence over Popp’s Rule 403 objection.

Popp also complains under this issue about the admission of digital scales, Zig Zag rolling papers, a cut-down straw containing a white residue, a small compact mirror, an address book, and the supporting testimony regarding the uses for these items.  Trial counsel did not object to the testimony regarding the uses of these objects and specifically stated that he had no objection to the admission of these items, other than the digital scales, into evidence.  This complaint is not preserved.  Tex. R. App. P. 33.1.

As to the digital scales, the only objection made at trial was, “[N]o additional objections other than the running objection.”  Popp had requested a running objection during the testimony of previous witnesses as to items collected.  However, he did not reiterate that objection with the witness that testified about the digital scales.  An advocate who lodges a running objection should take pains to make sure it does not encompass too broad a reach of subject matter over too broad a time or over different witnesses.  Sattiewhite v. State, 786 S.W.2d 271, 283 n. 4 (Tex. Crim. App. 1989); see also In the Interest of A.P., 42 S.W.3d 248, 260 (Tex. App.—Waco 2001, no pet.).  Popp failed to preserve this complaint.  Tex. R. App. P. 33.1.

Popp’s first issue is overruled.

In his second issue, Popp argues the trial court erred in failing to give a limiting instruction regarding the extraneous offenses admitted during the guilt/innocence phase of the trial.  However, in his argument under this issue, Popp contends that the trial court erred in failing to give an instruction on the burden of proof for extraneous offenses. Trial counsel objected to the failure to include a limiting instruction.  He did not object that the charge failed to include an instruction on the burden of proof for the extraneous offenses.  In fact, the charge included the very instruction Popp now contends was not given.  His argument does not comport with the objection at trial and presents nothing for review.  Ibarra v. State, 11 S.W.3d 189, 196-97 (Tex. Crim. App. 1999).

In his third issue, Popp contends the trial court erred in failing to give an instruction on a lesser included offense of possession of “methamphetamine/amphetamine” in an amount less than one gram. Popp’s trial attorney requested a charge on a lesser included offense of possession of amphetamine in an amount less than one gram.  To the extent Popp now argues that he was entitled to an instruction on possession of methamphetamine less than one gram, his argument on appeal does not comport with the argument made at trial and presents nothing for review. Ibarra v. State, 11 S.W.3d 189, 196-97 (Tex. Crim. App. 1999).  To the extent Popp only argues that he was entitled to an instruction on possession of amphetamine less than one gram, there is no evidence in the record of any other substance seized which tested to contain amphetamine. Thus, assuming without deciding that he met the first prong of the test to determine if the jury charge should have included an instruction on a lesser-included offense, Popp failed to meet the second prong.  Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)).  Issue three is overruled.

In his fourth issue, Popp argues that the trial court erred in failing to give an instruction to the jury under Article 38.22 of the Texas Code of Criminal Procedure which would allow the jury to disregard illegally obtained evidence.  Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Pamp. 2004-2005).  Popp does not, however, point to any evidence in the record where a fact issue was raised concerning the illegal seizure of that evidence.  Thus, this issue is improperly briefed and presents nothing for review.  Tex. R. App. P. 38.1; see Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, order).

In his fifth issue, Popp contends the jury finding that he was competent to stand trial is against the great weight and preponderance of the evidence.  A defendant is presumed competent to stand trial unless he proves his incompetence by a preponderance of the evidence.  Acts of 1965, 59th Leg., vol. 2, p. 317, ch. 722 (repealed 2003) (formerly art. 46.02 § 1A).[1]  The correct standard of review for a factual insufficiency issue where the defendant has the burden of proof by a preponderance of the evidence is whether, after considering all the relevant evidence, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.  Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).

          By the time of his hearing, Popp dismissed two retained attorneys and a court-appointed attorney.  He was represented at the incompetency hearing by another court-appointed attorney.  Three witnesses, two attorneys and a legal assistant testified that Popp had periods of irrational behavior and did not understand the proceedings against him.  However, the court-appointed psychiatrist determined Popp was competent to stand trial. And a former court-appointed attorney testified that, although he could not get Popp to take his criminal charges seriously, he did not think Popp was incompetent during his period of representation.  Contrary to Popp’s assertion, considering all the relevant evidence, the judgment is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Popp’s fifth issue is overruled.

          In his sixth and seventh issues, Popp contends the trial court erred in failing to sua sponte conduct a competency inquiry and then impanel a second competency jury.  See Acts of 1965, 59th Leg., vol. 2, p. 317, ch. 722 (repealed 2003) (formerly art. 46.02 § 2(b)).  Under case law interpreting section 2, if a competency issue is raised by the defendant, any party, or the court and 1) evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court, 2) of the type to raise a bona fide doubt in the judge's mind regarding the defendant's competency to stand trial, then 3) the judge must conduct a Section 2 "competency inquiry" to determine if there is some evidence sufficient to support a finding of incompetence, and if there is, 4) the judge must impanel a jury for a Section 4 "competency hearing."  McDaniel v. State, 98 S.W.3d 704, 710-711 (Tex. Crim. App. 2003).  And where there has already been one determination of competency by a jury and there is no error in that finding, to complain of the denial of a second hearing, the defendant must put forth some evidence of a subsequent change in competency or some “new evidence” in a manner analogous to the newly discovered evidence basis for a new trial.  Miles v. State, 688 S.W.2d 219, 224 (Tex. App.—El Paso 1985, pet. ref’d).  “Any other procedural and evidentiary framework would effectively block trial on the merits.”  Id.

          Popp made a few statements to the trial court before trial and a few comments to testimony in the presence of the jury during the guilt/innocence phase.  None of those statements or comments relate to Popp’s competency.  Popp became more vocal in the presence of the jury at the punishment phase of his trial.  Most of those statements involved commenting on testimony and questioning witnesses, and expressing displeasure with his attorney and the trial court.  His attorney expressed concern for Popp’s mental status because of the stress of the trial but also acknowledged that Popp had been recently evaluated and found to be competent. 

          We found no error in the jury’s determination of Popp’s competence.  And Popp has presented no evidence of a subsequent change in his competency to stand trial.  Thus, the trial court did not err in failing to conduct a competency inquiry or impanel a jury for a second competency hearing.  Popp’s sixth and seventh issues are overruled.

          In issues eight, nine, ten, and eleven, Popp complains about the resubmission of a different verdict form at the guilt/innocence phase which would allow the jury to find Popp guilty of possession of amphetamine after it had already found him guilty of possession of methamphetamine. Popp misinterprets what happened at the trial court. 

The jury returned a verdict finding Popp guilty of possession of amphetamine as charged in the indictment.  At punishment, the court submitted a verdict form that mistakenly stated the jury had found Popp guilty of possession of methamphetamine. This mistake was discovered after the trial court read the verdict but before the jury left the court room.  The court resubmitted a verdict form for punishment with the correct substance, amphetamine, for which the jury had already found Popp guilty of possessing.  However, this second form left out the words “as charged in the indictment.”  A third form was submitted with the correct language.  Popp’s counsel did not object to these resubmissions.  And, on each form, the jury assessed Popp’s punishment at 11 years in prison. 

Popp presents no authority for why the trial court’s correction of the punishment verdict form would be error.  Thus, these issues are improperly briefed and present nothing for review.  Tex. R. App. P. 38.1; see Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, order).

          Having overruled the issues properly presented, we affirm the judgment of the trial court.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

(Justice Vance concurs with a note)*

Affirmed

Opinion delivered and filed January 26, 2005

Do not publish

[CR25]

          * “Because the majority fails to explain the effect of the court’s “mistaken” (as conceded by the State) charge of methamphetamine instead of amphetamine, I concur in the result but cannot join the rationale.”

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[1] The statutes regarding competency to stand trial are now located in Tex. Code Crim. Proc. Ann. art. 46B.001, et. seq. (Vernon Pamp. 2004-2005). The new chapter applies only to a defendant against whom proceedings have not been initiated under Article 46.02 before the effective date of the new chapter.  Acts of 2003, 78th Leg., ch. 35 § 16.  Popp does not fall within this category.  Thus, the former chapter applies to his appeal.