Roderick M. Dearborne v. State

Opinion issued December 1, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01066-CR

RODERICK M. DEARBORNE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 979485

MEMORANDUM OPINION

Appellant, Roderick M. Dearborne, was convicted by a jury of possession with

the intent to deliver a controlled substance weighing at least 400 grams.

See Tex.

Health & Safety Code Ann. § 481.112 (Vernon 2003) . After appellant pleaded

true to two enhancement paragraphs alleging prior convictions for attempted murder

and unauthorized use of a motor vehicle, the trial court assessed his punishment at

25 years’ confinement.

In nine points of error, appellant contends that the trial court erred by (1)

denying his motion for judgment of acquittal after the State rested; (2) granting the

State’s challenge for cause regarding two qualified veniremen; (3) denying

appellant’s Batson objection to the State’s use of peremptory challenges; (4)

admitting inadmissible hearsay testimony; (5) prohibiting the introduction of

impeaching evidence concerning the State’s informant; (6) admitting an item into

evidence which was not sufficiently authenticated; (7) admitting evidence obtained

through an unlawful search and seizure; (8) allowing a witness to read from a

document that was not admitted into evidence; and (9) assessing a sentence that

violated appellant’s constitutional rights.

We affirm.

Background

In 2003, Paul K. Newman, facing a felony charge for possession of marijuana,

entered a written contract with law enforcement officials to provide them with

information leading to the arrest of drug dealers. In exchange for such information,

the State agreed to dismiss the charges pending against Newman.

Pursuant to the contract, Newman began working with Officer D. Davis, an

undercover officer with the Houston Police Department’s Narcotics Division

(HPDND). Newman informed Davis that he had previously conducted drug

transactions with an individual he knew as Mark Billingsley.

He further relayed that

Billingsley was known to have two sources for drugs, a Hispanic man named

Anthony, and a black man Newman believed to be Billingsley’s cousin. Davis

instructed Newman to arrange a purchase of cocaine from Billingsley. According to

the plan, Newman would act as the middleman, handling the deal’s logistics, while

Davis would pose as the buyer.

Newman contacted Billingsley and informed him that he knew someone

interested in purchasing two kilograms of cocaine. A meeting was arranged among

Newman, Davis, and Billingsley to negotiate a price. There, Billingsley agreed to sell

Davis two kilograms of cocaine for a total of $35,000. Billingsley then proceeded to

make telephone calls necessary to procure the drugs, and shortly thereafter, instructed

Davis to follow him to an undisclosed location to complete the transaction.

Newman rode with Billingsley, and Davis followed in his own vehicle. The

parties arrived at an apartment complex located at 6101 Antoine. While Davis

remained in his vehicle, Newman and Billingsely approached apartment number 1321

and were admitted by Michael Green. After briefly remaining in the apartment,

Newman returned to the parking lot and conferred with Davis. He informed Davis

that the cocaine was not yet in the apartment and that Billingsley possessed a firearm.

Davis and Billingsley then spoke with one another on their respective cell phones,

arguing about whether Davis would show Billingsley the agreed upon $35,000 before

seeing the cocaine. With the argument unresolved, Davis and Newman left the

apartment complex in Davis’s vehicle and circled the immediate area. Shortly

thereafter, Billingsley called Davis and informed him that the cocaine had arrived at

the apartment complex, but was not yet inside apartment number 1321.

Officers B. Hundersmarck and T. Walker, of the HPDND, were two of the

officers assigned to provide backup support to Davis. Hundersmarck, an undercover

officer, observed appellant arrive at 6101 Antoine in a maroon Chevy Tahoe outfitted

with expensive rims. At the time of appellant’s arrival, Davis and Newman had not

yet returned to the apartment complex. Hundersmarck saw Billingsley and Green

approach the Tahoe. Green entered from the front passenger side and Billingsley

remained outside. Appellant and Green appeared to converse for approximately 5

minutes. Appellant then got out of the Tahoe, opened the rear hatch, removed a black

box, and returned to the driver’s seat. Minutes later, Walker observed Green get out

of the Tahoe carrying a black box. Green and Billingsley returned to apartment

number 1321, while appellant re-positioned his car to allow him to observe who

entered and exited the apartment.

Davis then received a telephone call from Billingsley who informed him that

the cocaine was now in the apartment. Davis and Newman returned to 6101 Antoine,

and Newman again entered apartment number 1321, while Davis remained in his car.

During this visit to the apartment, Newman saw approximately one kilogram of

cocaine on the dining room table and a black box located nearby. Neither of the items

had been there previously. Newman told Billingsley that he needed to retrieve the

money from Davis, and he left the apartment. After Newman informed Davis that he

had observed the cocaine, the two left the apartment complex, and Davis telephoned

Billingsley to inform him the deal was off.

After Davis cancelled the deal, Hundersmarck observed Billingsley, Green, and

appellant leave the apartment complex in separate vehicles. Prior to Green’s

departure, Hundersmarck witnessed Green place a black box in the rear hatch area of

his car, a silver Mustang. Hundersmarck testified that the box Green placed in his

Mustang looked identical to the box appellant had earlier retrieved from the rear of

his Tahoe. Billingsley, Green, and appellant were stopped by officers moments after

they left the apartment complex. Officers recovered the black box, which contained

approximately one kilogram of cocaine, from Green’s mustang.. No other black

boxes were found, either in Billingsley’s or appellant’s car. During a search of

appellant’s vehicle, officers discovered a handgun and bullets.

Discussion

A. Denial of Appellant’s Motion for Judgment of Acquittal

In his first pont of error, appellant contends that the trial court erred by denying

his motion for judgment of acquittal after the State rested.

1. Standard of Review

A challenge of the trial court’s denial of a motion for instructed verdict is, in

effect, a challenge to the legal sufficiency of the evidence supporting the conviction.

See Williams v. State 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). W e review the

legal sufficiency of the evidence by viewing the evidence in the light most favorable

to the verdict to determine whether any rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt. Wesbrook v. State , 29

S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State , 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000). Although our analysis considers all evidence presented at trial, we

may not re-weigh the evidence and substitute our judgment for that of the fact finder.

King, 29 S.W.3d at 562 .

2. Possession of a Controlled Substance

To prove the offense of possession of a controlled substance, the State must

show that the accused (1) exercised actual care, custody, control, or management of

the controlled substance and (2) was conscious of his connection with it and knew

what it was. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.112(f)

(Vernon Supp. 2005).

When the accused, like appellant, is not in exclusive possession of the place

where the contraband is found, we cannot conclude that the accused had knowledge

of and control over the contraband unless the State establishes an “affirmative link”

between the accused and the contraband—i.e., independent facts and circumstances

that affirmatively link the accused to the contraband so as to suggest that the accused

had knowledge of the contraband and exercised control over it.

Rhyne v. State , 620

S.W.2d 599, 601 (Tex. Crim. App. 1981); Roberson v. State , 80 S.W.3d 730, 735

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). An affirmative link may be

established through either direct or circumstantial evidence. Brown v. State , 911

S.W.2d 744, 747 (Tex. Crim. App. 1995).

The Court of Criminal Appeals has identified several factors that may help to

establish an affirmative link between the accused and the contraband, including

whether (1) the contraband was in plain view; (2) the contraband was conveniently

accessible to the accused; (3) the place where the contraband was found was

enclosed; (4) conduct by the accused indicated a consciousness of guilt; and (5) the

accused had a special connection to the contraband.

Courts have also considered the

amount of contraband found. Poindexter , 153 S.W.3d at 412. Although several

factors relevant to establishing an affirmative link may have been identified, the

number of factors actually supported by the evidence is not as important as the

“logical force” they collectively create to prove that a crime has been committed.

Roberson , 80 S.W.3d at 735 (quoting Whitworth , 808 S.W.2d at 569).

Here, sufficient evidence existed for a rational trier of fact to conclude that

appellant consciously exercised control over the cocaine in question. When Davis

and Newman first arrived at the apartment complex, Billingsley informed Newman

that the cocaine had not arrived. Shortly thereafter, Hundersmarck observed

appellant’s Tahoe enter the complex’s parking lot. Billingsley then told Davis that

the cocaine was on site, although not yet in the apartment. Moments later,

Hundersmarck witnessed appellant retrieve a black box from the rear of his Tahoe,

and Walker observed Green carry the box from appellant’s vehicle to apartment

number 1321. When Newman returned to the apartment following these events, he

testified that both a kilogram of cocaine and a black box were present for the first

time. Hundersmarck testified that he saw Green leave the apartment carrying a box

that looked identical to the one appellant had removed from his Tahoe, and officers

later found a kilogram of cocaine inside the box. The logical force of this evidence

suffices to link appellant affirmatively to the cocaine. See Roberson , 80 S.W.3d at

735 .

3. Intent to Deliver

A person commits an offense if he knowingly possesses a proscribed substance

with the intent to deliver it. Tex. Health & Safety Code Ann . § 481.112(a)

(Vernon 2003). To establish intent, it must be shown that the defendant possessed

a conscious objective or desire to engage in the conduct in question. Tex. Pen. Code

Ann . § 6.03(a) (Vernon 2003).

Intent to deliver a controlled substance may be proved by circumstantial

evidence. Williams v. State , 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.]

1994, no pet.). Factors that tend to show an intent to deliver include (1) the place

where the defendant was arrested and the nature of the location; (2) the quantity of

the controlled substance in the defendant’s possession; (3) the packaging of the

contraband; and (4) the defendant’s possession of large amounts of cash. Id .

Here, sufficient evidence existed for a rational trier of fact to conclude that

appellant consciously desired to deliver the cocaine. Significantly, appellant was

arrested while leaving the scene of an attempted drug transaction, where he was

observed delivering a black box to Green. When Green was arrested, a black box in

his possession contained a large quantity of cocaine, approximately 1 kilogram.

Viewing the evidence in the light most favorable to the verdict, a reasonable

trier of fact could have found beyond a reasonable doubt that appellant possessed a

controlled substance with intent to deliver.

We overrule appellant’s first point of error.

B. Challenges for Cause

In his second point of error, appellant contends that the trial court erred in

granting the State’s challenges for cause against venirepersons Joanna Kristen Torok

and Diana M. Hickerson. The State challenged both Torok and Hickerson on the

basis of their exhibiting a bias or prejudice in favor of the defendant. See Tex. Code

Crim. Proc. Ann . art 35.16(a)(9) (Vernon 2003).

1. Standard of Review

We review a trial court’s decision to deny or grant a challenge for cause under

an abuse of discretion standard. See Curry v. State , 910 S.W.2d 490, 493 (Tex. Crim.

App. 1995). When a veniremember is challenged because of possible bias, “we must

determine whether the veniremember’s beliefs would prevent or substantially impair

him from following the law as set out in the trial court’s instructions and as required

by the juror’s oath.” Lagrone v. State , 942 S.W.2d 602, 616 (Tex. Crim. App. 1997).

We review the record as a whole to determine the propriety of the trial court’s ruling.

See Swearingen v. State , 101 S.W.3d 89, 99 (Tex. Crim. App. 2003). As the trial

court was able to observe voir dire directly, we accord great deference to its rulings

when the record indicates that a veniremember vacillated or equivocated. See id .

2. Torok

After she discussed a possible bias against police offices with the State, Torok

volunteered that she tended not to believe officers of the law. The following exchange

ensued:

TOROK:All I’m saying is that I know that a policeman has lied to

me. How am I supposed to know that he’s not lying with

this defendant?

STATE: That’s why I’m asking you. Are you telling me that you simply

can’t believe a policeman or that you have a bias against police

officers and you cannot set that bias aside?

TOROK: Yes.

Torok later approached the bench and revealed that she had once been arrested for

possession of marihuana. She then stated, “I think I got kind of screwed by the

justice system . . . I don’t think I can believe the police.”

In light of Torok’s experiences and statements, we conclude that the trial court

did not err in granting the State’s challenge for cause against her.

3. Hickerson

When the State asked if any veniremembers would be less likely to convict in

a case involving confidential informants, Hickerson responded, “I think I would

depending on the circumstances.” She then agreed that she would look “long and

hard” at any testimony from an informant. Subsequently, Hickerson indicated that

her brother-in-law had been charged with a “white collar crime.” After stating that

the experiences of her brother-in-law would not affect her as a juror, Hickerson

immediately interrupted the State to reassert her concerns regarding the use of

informants. Shortly thereafter, she stated that she was not sure whether her feelings

toward informants would cause her to be biased against the State. Such indecision

and uncertainty suggests that Hickerson was an equivocating venireperson, requiring

us to accord great deference to the trial court’s decision to grant the State’s challenge.

See Swearingen , 101 S.W.3d at 99 . Consequently, we hold that the trial court did not

err in granting the State’s challenge of Hickerson for cause.

We overrule appellant’s second point of error.

C. Batson Challenge

In his third point of error, appellant argues that the trial court erred in denying

his Batson challenge to the State’s use of peremptory strikes against veniremembers

Tavares Demond Jackson, Gertrude Banks, and Betty Jean Davis. The trial court

implicitly overruled appellant’s Batson challenge by informing him that his

objections were noted and proceeding to seat the jury. See Tex. R. App . P. 33.1(a).

1. Standard of Review

We will reverse a trial court’s ruling on a Batson challenge only if it appears

clearly erroneous. See Whitsey v. State , 796 S.W.2d 707 , 726 (Tex. Crim. App.

1989). In applying this standard, we will not reverse the trial court’s ruling unless

we have a definite and firm conviction that a mistake has been made. See id . We

view the evidence in the light most favorable to the trial court’s ruling, and review

the record in its entirety, including the voir dire process, the racial constitution of the

venire, the State’s race- neutral explanations, and appellant’s rebuttal and impeaching

evidence. See id .

2. Batson

Using a peremptory challenge based on a veniremember’s race violates the

United States Constitution’s Equal Protection Clause. Batson v. Kentucky , 476 U.S.

79, 86 , 106 S. Ct. 1712, 1717 (1986). A Batson challenge consists of three prongs:

(1) the defendant must make a prima facie case that peremptory strikes were used to

dismiss veniremembers on the basis of their race; (2) if the defendant establishes a

prima facie case, the State must provide racially neutral explanations for its

challenged strikes; and (3) the defendant must establish that the State’s racially

neutral explanations are pretexts for purposeful discrimination. Id . at 97–98, 106 S.

Ct. at 1723–24. The burden of persuasion remains with the defendant throughout the

challenge. See Jasper v. State , 61 S.W.3d 413, 422 (Tex. Crim. App. 2001). A

finding that any peremptory strikes were racially motivated invalidates the jury

selection process, and a new trial is required. See Whitsey, 796 S.W.2d at 716.

3. Jackson, Banks, and Davis

Although it is not clear from the record that appellant made a prima facie case

of racial discrimination, the State nevertheless proffered racially neutral explanations

for its use of peremptory strikes against Jackson, Banks, and Davis. The State

indicated that it struck Jackson because he was young,

had a short work history, and

had had a cousin tried for robbery; Banks because she was 69 years old, retired and

unemployed, and because her brother was facing charges for shooting at an officer

of the law; and Davis because her son had been convicted and served eight months

for writing “hot checks.”

Each of the reasons offered by the State for striking the veniremembers in

question has been held to be racially neutral for the purposes of a Batson challenge.

See Dennis v. State , 925 S.W.2d 32, 40 (Tex. App.—Tyler 1995, pet. ref’d) (holding

that youth and unemployment are racially neutral reasons for striking a

veniremember); Shavers v. State , 881 S.W.2d 67, 76 (Tex. App.—Dallas 1994, no

pet.) (holding that peremptory challenges are racially neutral when used against a

veniremember whose relative has been charged with a criminal offense).

Once the State presented racially neutral reasons for its strikes, appellant was

required to rebut the State’s proffered explanations as pretextual. Appellant,

however, made no attempt to rebut the State’s explanations, nor did he object to any

statements made by the State when it offered its reasons for striking Jackson, Banks,

and Davis. In light of these facts, we cannot say that the trial court’s denial of

appellant’s Batson challenge was clearly erroneous.

We overrule appellant’s third point of error.

D. Admission of Hearsay Testimony

In his fourth point of error, appellant argues that the trial court improperly

admitted hearsay statements by Billingsley during the State’s direct examination of

Davis.

1. Standard of Review

We review a trial judge’s decision to admit or exclude evidence under an

abuse of discretion standard. See Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim.

App. 2001). The admissibility of an out-of-court statement under an exception to the

general hearsay exclusion rule is within the trial court’s discretion. Lawton v. State,

913 S.W.2d 542, 553 (Tex. Crim. App. 1995). The decision of the trial court will be

affirmed if its decision is within the zone of reasonable disagreement on the particular

issue. See Salazar, 38 S.W.3d at 151 ; Montgomery v. State , 810 S.W.2d 372, 391

(Tex. Crim. App. 1990) (op. on reh’g). For hearsay to be admissible, it must fit into

an exception provided by the Rules of Evidence. See Tex. R. Evid . 803, 804.

2. Billingsley’s Statements

During direct examination by the State, Davis was asked to recount what

Billingsley had said to him when the two first met to discuss the terms of their

proposed drug transaction. Appellant objected that any testimony by Davis regarding

Billingsley’s statements amounted to hearsay. In response, the State contended that

the proposed testimony was admissible under the co-conspirator hearsay exception.

See Tex. R. Evid. 801(e)(2)(E). Appellant’s objection was overruled.

The co-conspirator hearsay exception provides that a statement is not hearsay

if it is offered against a party and is a statement by a party’s co-conspirator during the

course and in furtherance of the conspiracy. Id . The exception is not limited to

prosecutions for conspiracy; rather, it is a rule of evidence that applies to any offense.

Roy v. State , 608 S.W.2d 645, 651 (Tex. Crim. App. 1980). A conspiracy occurs

when two or more people agree to take part in the commission of a felony. See

Meador v. State , 812 S.W.2d 330, 332 (Tex. Crim. App. 1991). The State has the

burden of showing that, at the time of his statement, the alleged co-conspirator was

participating in a conspiracy in which the defendant was also participating or which

he later joined, and that the statement was made in furtherance of that conspiracy.

Ward v. State , 657 S.W.2d 133 , 136–37 (Tex. Crim. App. 1983). A conspiracy may

be shown by circumstances surrounding the acts and conduct of the conspirators, or

it may be inferred from the evidence. See Wilkerson v. State , 933 S.W.2d 276, 279

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).

Here, the evidence indicates that Newman conspired with Billingsley to effect

a sale of cocaine to Davis. Billingsley’s challenged statements, which concerned the

amount and price of the cocaine, were made both during and in furtherance of this

conspiracy. Thus, we cannot say that the trial court abused its discretion by admitting

the challenged testimony.

We overrule appellant’s fourth point of error.

E. Points of Error Five Through Eight

Appellant’s fifth, sixth, seventh, and eighth points of error concern the trial

court’s rulings on the admissibility of evidence. As each point of error shares the

same standard of review, abuse of discretion, we consolidate them here for the

purposes of review.

1. Standard of Review

We review a trial court’s ruling on the admissibility of evidence under an abuse

of discretion standard. Mozon v. State , 991 S.W.2d 841, 847 (Tex. Crim. App. 1999);

Erdman v. State , 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). We reverse only if

the ruling is outside the zone of “reasonable disagreement.” Montgomery , 810

S.W.2d at 388–90.

2. Impeachment Evidence

In his fifth point of error, appellant contends the trial court erred by excluding

evidence that tended to impeach Newman’s credibility.

Appellant avers that Rule 609(a) of the Texas Rules of Evidence compelled the

admission of the impeaching evidence in question. See Tex. R. Evid . 609(a). For the

purposes of attacking the credibility of a witness, Rule 609(a) permits the admission

of evidence of a witness’s prior convictions provided that three conditions are met:

(1) the evidence must be “elicited from the witness or established by public record”;

(2) the crime in question must be either a felony or a crime involving moral turpitude;

and (3) the trial court must determine that the “probative value of admitting this

evidence outweighs its prejudicial effect to a party.” See Tex. R. Evid . 609(a).

During his cross-examination of Davis, appellant asked if Newman, the

informant, “had any criminal violations since he went to work for you in March of

last year?” Appellant did not solicit impeaching evidence about Newman from

Newman himself, nor did appellant seek to admit evidence impeaching Newman by

public record, as required for admission by Rule 609(a). Morever, appellant did not

inquire as to felonies or crimes of moral turpitude, but rather “criminal violations” in

general. Because appellant failed to comply with Rule 609’s requirements for the

introduction of impeaching evidence, we conclude that the trial court did not err by

excluding the evidence at issue.

We overrule appellant’s fifth point of error.

3. The Black Box

In his sixth point of error, appellant contends the trial court improperly

admitted the State’s Exhibit 5, the black box, into evidence.

Appellant argues that the admission of the black box failed to comport with

Rule 901 of the Texas Rules of Evidence, which requires the authentication or

identification of an item prior to its being admitted in evidence. See Tex. R. Evid.

901(a); Angleton v. State , 971 S.W.2d 65 , 67–68 (Tex. Crim. App. 1998). Rule

901(b) provides various illustrations of how an item may be properly authenticated

or identified. See Tex. R. Evid. 901(b) . Included among these illustrations are (1)

testimony by a witness with knowledge that “a matter is what it is claimed to be” and

(2) “[a]ppearance, contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances.” Tex. R. Evid . 901(b)(1),

(4).

Here, Hundersmarck testified that the State’s Exhibit 5 was the same black box

recovered from Green’s Mustang, and that the box looked identical to the one he

observed appellant retrieve from the rear of appellant’s Tahoe. Walker testified that

he saw Green leave appellant’s Tahoe carrying the black box and enter apartment

number 1321 and that he observed Green place the box in the rear hatch area of

Green’s Mustang immediately before leaving the apartment complex. Hundersmarck

further testified that the State’s Exhibit 5 was the only black box recovered from the

vehicles driven by Billingsley, Green, and appellant. In light of this testimony, we

hold that the trial court did not abuse its discretion in determining that the box was

properly authenticated for admission into evidence.

We overrule appellant’s sixth point of error.

4. Appellant’s Handgun and Bullets

In his seventh point of error, appellant contends that the trial court erred by

admitting into evidence a handgun and bullets that were illegally seized from his

Tahoe following a constitutionally impermissible search.

To complain of error on appeal, a defendant must make a specific, timely

objection during trial. Tex. R. App. P . 33.1(a)(1)(A) ; Havard v. State , 800 S.W.2d

195, 211 (Tex. Crim. App. 1989). If a party fails to timely and specifically object,

error is not preserved, and the complaint is waived. See Mendez v. State , 138 S.W.3d

334, 339 (Tex. Crim . App. 2004). A timely objection is one that is raised at the

earliest possible opportunity; a specific objection is one that adequately describes the

nature of the complaint. See Broxton v. State , 909 S.W.2d 912, 918 (Tex. Crim. App.

1995). A defendant may not, on appeal, argue a reason for error that was not urged

at trial. Havard , 800 S.W.2d at 811 .

Here, appellant made neither a timely nor a specific objection. Regarding

timeliness, the items in question were described in some detail before appellant

protested. When he did object, appellant did so generally, stating “I would object

your honor.” Appellant did not object on the basis of an illegal search or seizure, and

thus raises those issues for the first time on appeal. By neglecting to enter a timely

and specific objection to the admission of the challenged items, appellant failed to

preserve error. See Havard , 800 S.W.2d at 811 .

We overrule appellant’s seventh point of error.

5. Newman’s Contract

In his eighth point of error, appellant argues that the trial court erred by

allowing Newman to read his contract with law enforcement in its entirety .

During its direct examination of Newman, the State asked questions referring

to Newman’s contract, but did not seek to introduce the contract in evidence. On

cross-examination, Newman was asked a series of questions about the contract.

These questions by appellant’s counsel led the State, citing the Rule of Optional

Completeness, to request on redirect examination that Newman read the entire

contract into evidence. See Tex. R. Evid . 107. Appellant’s objection to the

contract’s being read into evidence was overruled.

The Rule of Optional Completeness is implicated when a party attempts to have

a portion of an act, declaration, conversation, writing, or recorded statement given in

evidence. See Sauceda v. State , 129 S.W.3d 116, 122 (Tex. Crim. App. 2004). When

such an attempt occurs, the opposing party may introduce into evidence the remaining

parts of the otherwise inadmissible act, declaration, conversation, writing, or recorded

statement. See id . The rule serves to guard against the possibility that the jury will

form a false impression by hearing or seeing only a part of some act, conversation,

or writing. See Credille v. State , 925 S.W.2d 112, 116 (Tex. App.—Houston [14th

Dist.] 1996, pet. ref’d).

During his cross-examination of Newman, appellant asked no fewer than 18

questions regarding Newman’s contract with law enforcement. At least five of these

questions referred to specific paragraphs within the agreement. By extensively

examining Newman about the contents of his contract with law enforcement,

appellant effectively sought to have parts of the writing read into evidence. The

State was entitled under the Rule of Optional Completeness to introduce the

remaining parts of the contract. See Tex. R. Evid . 107. Thus the trial court did not

abuse its discretion in allowing Newman to read the contract in its entirety.

We overrule appellant’s eighth point of error.

F. Constitutionality of Appellant’s Sentence

In his ninth point of error, appellant argues that his 25-year sentence runs afoul

of the U.S. Constitution’s prohibition on cruel and unusual punishment because it is

grossly disproportionate to the sentences assessed to Billingsley and Green, who both

received seven years deferred adjudication on charges stemming from the same drug

transaction.

To complain of error on appeal, a defendant must make a specific, timely

objection during trial. Tex. R. App. P . 33.1(a)(1)(A) ; Havard , 800 S.W.2d at 211 . If

a party fails to do this, error is not preserved, and the complaint is waived. Mendez ,

138 S.W.3d at 339 (Tex. Crim . App. 2004). It is well established that even

constitutional and statutory rights may be waived by failure to object. Wright v. State ,

28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (concluding constitutional issues can be

waived); Solis v. State , 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref’d) (concluding statutory and constitutional rights can be waived).

Here, appellant, whose offense was enhanced with two prior felony

convictions, faced a sentence ranging from life to a minimum of 25 years. See Tex.

Pen. Code Ann . § 12.42(d) (Vernon Supp. 2005). Appellant pleaded true to both

enhancement paragraphs, and the trial court found both true and sentenced appellant

to 25 years in prison in prison. Thus, appellant received the minimum sentence

available. At the conclusion of the punishment hearing, appellant’s counsel, who at

no point objected to any aspect of the sentence, stated, “Thank you for the sentence

that you imposed Your Honor.” In light of appellant’s failure to raise a timely,

specific objection to his sentence, we conclude that he failed to preserve error.

Accordingly, appellant’s complaint is waived.

We overrule appellant’s ninth point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.4.