Johnson v. State, 03-12-00006-CR

• Decision Date: 04 May 2012
• Docket Number: NO. 03-12-00006-CR,03-12-00006-CR
• Parties: Jamie Edward Johnson, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Jamie Edward Johnson, Appellant

v.The State of Texas, Appellee

NO. 03-12-00006-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Filed: May 4, 2012

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 09-1868-K368, THE HONORABLE BURT CARNES, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted Jamie Edward Johnson of possession of a controlled substance, methamphetamine, in an amount of less than one gram.SeeTex. Health & Safety Code Ann. §§ 481.102,481.115 (West 2010).The jury found the enhancement paragraphs of the indictment, alleging three prior felony convictions, to be true and assessed his punishment at confinement for seven and one-half years in the Institutional Division of the Texas Department of Criminal Justice and, in addition, assessed a $2,000 fine.SeeTex. Penal Code Ann. §§ 12.34(West 2011), 12.42(a)(WestSupp. 2010).Johnson appeals, raising nine points of error.¹We affirm.

BACKGROUND

On December 15, 2009, Michelle Christensen, a Cedar Park Police Detective, was off duty working an extra job as security at a hockey game at the Cedar Park Event Center.Before the game, her attention was drawn to Johnson while he was waiting in line for the gates to open.She noticed his "fidgety" behavior and, based on her training in drug recognition, believed him to be under the influence of a CNS (central nervous system) stimulant.During the game, Johnson sat in the section Detective Christensen was assigned to monitor.She observed him exhibit "anxious behavior"—repeatedly standing up and sitting back down, leaning against the railing, taking off his hat and putting it back on, and looking around "nervously."When Johnson left his seat during the intermission between the first two periods of the game, she followed him and saw him enter the men's bathroom.While Johnson was in the bathroom, Christensen conferred with her husband, Cedar Park Police Officer Joseph Christensen, who was also working security at the game, about Johnson's behavior.

When Johnson exited the bathroom, he was repeatedly blowing his nose and sniffling.After returning to his seat, the officers observed him putting paper towels up his nose.During the second period, he continued to exhibit behaviors that both officers considered consistent with drug use—looking around nervously, repeatedly standing up and sitting down in an agitated manner,repeatedly removing and replacing his hat, and continually grinding his teeth.After the second period, Johnson again went to the bathroom during the intermission.This time Officer Christensen followed him into the bathroom.The officer heard sniffing noises—loud inhales through the nose, the type of sniffing he associated with the snorting of a drug—coming from Johnson's stall.When Johnson left the bathroom, Detective Christensen and Officer Christensen approached him and asked to speak with him.He agreed and they went outside.

Once outside, Officer Christensen asked Johnson if he had any narcotics or weapons in his possession.Johnson said he did not.Officer Christenson explained to Johnson that he believed Johnson was under the influence of a narcotic and asked for consent to search his person.Johnson consented.As Officer Christensen searched him, Johnson told the officers that he had methamphetamine in a napkin.When confronted with the fact that most people who possess methamphetamine do not carry it in a napkin, Johnson admitted that he had some methamphetamine in a baggie in his wallet earlier but that it was gone.Officer Christenson removed the wallet and gave it to Detective Christensen.Inside the wallet, she recovered a small plastic baggie that appeared to have methamphetamine residue in it.Johnson was then arrested for possession of a controlled substance.Subsequent lab testing confirmed that the trace amount of substance in the baggie was methamphetamine.

DISCUSSION

On appeal, Johnson raises nine points of error complaining of error during jury selection, evidentiary insufficiency, the erroneous admission of evidence during the guilt-innocencephase, improper jury argument, and cruel and unusual punishment.For the reasons set out below, we overrule his points of error and affirm the conviction and sentence.

Jury Selection

In two points of error, Johnson complains about error during jury selection.In his second point of error, he asserts that the State asked multiple improper commitment questions during the course of voir dire.Specifically, he contends the prosecutor's questions relating to the difference between possession and ownership and questions attempting to discern how prospective jurors felt about convicting for possession of only residue amounts of a controlled substance were improper commitment questions.Johnson acknowledges that he failed to object to any purportedly improper questions during voir dire at the time they were asked.He argues, however, that the complained-of questions rose to the level of fundamental error and thus no objection was required.

In his ninth point of error, Johnson argues that comments by a venire member during voir dire violated his due-process rights.He maintains that a prospective juror tainted the entire panel because the prospective juror indicated, in response to defense counsel's questioning about the presumption of innocence, that he could not presume Johnson innocent because of his body language and demeanor.Johnson again concedes that he failed to object to the venire member's comments at the time they were made but again asserts that no objection was required because the error rose to the level of fundamental error.

Preservation of error is a systemic requirement on appeal.Ford v. State, 305 S.W.3d 530, 532(Tex. Crim. App.2009);Haley v. State, 173 S.W.3d 510, 515(Tex. Crim. App.2005).Normally, a reviewing court should not address the merits of an issue that hasnot been preserved for appeal.Wilson v. State, 311 S.W.3d 452, 473-74(Tex. Crim. App.2010)(citingFord, 305 S.W.3d at 532).To preserve a complaint for appellate review, a party must have presented a specific and timely request, motion, or objection to the trial court and, further, must have obtained an adverse ruling.Tex. R. App. P. 33.1(a);Pena v. State, 353 S.W.3d 797, 807(Tex. Crim. App.2011);Peavey v. State, 248 S.W.3d 455, 470(Tex. App.—Austin2008, pet. ref'd).Most complaints are subject to forfeiture by failure to comply with Rule 33.1(a) of the Rules of Appellate Procedure.Mendez v. State, 138 S.W.3d 334, 342(Tex. Crim. App.2004).Even constitutional rights—including the right of due process and due course of law—may be waived if the proper request, objection, or motion is not asserted in the trial court.Saldano v. State, 70 S.W.3d 873, 886-87(Tex. Crim. App.2002);seeMendez, 138 S.W.3d at 342.

The preservation requirements of Rule 33.1 do not apply, however, to rights which are waivable only by plain and affirmative statement, nor to absolute systemic requirements, the violation of which may be raised for the first time on appeal.State v. Dunbar, 297 S.W.3d 777, 780(Tex. Crim. App.2009).Systemic requirements—also known as absolute requirements or prohibitions—are laws that a trial court has a duty to follow even if the parties wish otherwise.Mendez, 138 S.W.3d at 340.Examples of systemic requirements include jurisdiction of the person and jurisdiction of the subject matter.Saldano, 70 S.W.3d at 888."Waivable only" rights, such as the right to trial by jury, are "rights of litigants which must be implemented by the system unless expressly waived."Mendez, 138 S.W.3d at 340;Saldano, 70 S.W.3d at 888.

Johnson argues that because due process requires an impartial jury, no objection is required to preserve the complained-of errors in jury selection.However, Johnson does not directus to any authority, and we have found none, characterizing improper voir dire questions or a juror's expression of his personal opinion as systemic, waivable-only, or otherwise "fundamental" error.²Johnson confuses constitutional rights with absolute systemic requirements or fundamental error.Numerous constitutional rights, including those that implicate a defendant's due-process rights, may be forfeited for purposes of appellate review unless properly preserved.Anderson v. State, 301 S.W.3d 276, 279-80(Tex. Crim. App.2009)(rejecting"due process" exception to error preservation requirement).

Johnson's failure to object at trial failed to preserve error relating to any alleged improper commitment questions.Further, because Johnson failed to object to the complained-of juror statement, he failed to preserve error relating to his due-process complaint that the juror's comment tainted the venire panel.Accordingly, we overrule his second and ninth points of error.

Admission of Prior Convictions

Johnson argues in his first point of error that the trial court erred in admitting evidence of his prior criminal history during the guilt-innocence phase of trial because the probative value of this evidence was substantially outweighed by the prejudicial effect.He maintains that the trial court should have excluded evidence of the following prior convictions: his 2007 state jail felony conviction for possession of a controlled substance, his 2002 state jail felony conviction forpossession of a controlled substance, his 2008 misdemeanor conviction for burglary of a motor vehicle, and his 2008 misdemeanor conviction for family violence assault.³

In his brief, Johnson argues that the admission of the complained-of prior convictions violated both Rules 403and609 of the Texas Rules of Evidence.At trial, however, Johnson objected to the admission of this evidence only under Rule 403.In fact, defense counsel explicitly stated that he was not objecting to the admission of this evidence under Rule 609—that is, he was not complaining that the evidence was improper impeachment, only that it was more prejudicial than probative under...