Aubrey Minor, Jr. v. State

Opinion issued July 14, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00826-CR

AUBREY MINOR, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

Grimes County, Texas

Trial Court Cause No. 14,659

MEMORANDUM OPINION

Appellant, Aubrey Minor, Jr., was charged by indictment with possession of

between four and 200 grams of cocaine, with intent to deliver, enhanced by two prior

felony convictions . See Tex. Health & Safety Code Ann. § § 481.102(3), .112

(Vernon 2003 & Supp. 2004–2005) . He pleaded not guilty to the primary offense, but

pleaded “true” to the enhancements. A jury found appellant guilty of the lesser-included offense of “possession of cocaine, 4–200 grams.” The trial court found the

enhancement paragraphs true and assessed punishment at confinement for life.

In four issues, we determine (1) whether the evidence of possession is legally

insufficient to support the conviction, (2) whether the evidence of possession is

factually insufficient to support the conviction, (3) whether the trial court erred in

refusing to admit the audiotape statement of a co-defendant, and (4) whether the trial

court erred in overruling appellant’s objection to the State’s closing argument.

On our motion, we reform the judgment of the trial court to make the judgment

conform to the record. We affirm the judgment as reformed.

BACKGROUND

On May 1, 2001, Navasota Police Officer Luke Ditta was on patrol near

Highway 6 when he saw a white pickup truck being driven erratically—swerving and

failing to signal lane changes. Officer Ditta pursued the truck, ultimately turning on

his lights and siren. However, the driver of the truck, later identified as appellant,

failed to stop immediately. Rather, appellant traveled some distance before turning

down a residential street and coming to a sudden stop at the roadside, leaving the tail

end of the truck in the middle of the street. Officer Ditta could see three people inside

the truck shuffling around—lifting up in the seat, leaning, and looking back at him.

Before Officer Ditta got out of his car, appellant got out of the truck, leaving

his door open, and began walking rapidly toward a house. Officer Ditta pursued

appellant and ordered him to stop. Appellant continued walking away, then pulled

something from his pocket and threw it in a yard. Officer Ditta believed the object

was a weapon or narcotics and drew his gun, again ordering appellant to stop.

Appellant finally obeyed. Officer Ditta patted him down, and they returned to the

truck.

Back at the truck, Officers Telthorster and Prior had arrived and removed the

two passengers, Ross Taplin and Noah Collins. Officer Ditta asked appellant for

consent to search the truck, which appellant granted.

Officer Ditta found a clear plastic baggie containing a black substance on the

ground outside the driver’s door of the vehicle, where appellant had gotten out.

Looking into the truck through the open driver’s door, Officer Ditta saw, in plain

view, two clear plastic baggies containing a yellow substance, partially stuffed into

the driver’s side of the bench seat. Officer Ditta found two other baggies containing

yellow substance stuffed into the mid-portion of the seat. The contents of the bags

were field tested and believed to contain methamphetamine or cocaine. Appellant

and his two passengers were arrested.

The police chemist identified the total substance recovered as 13.67 grams of

cocaine . The jury was charged on the law of parties and returned a general verdict

of “guilty of possession of cocaine 4–200 grams.”

Possession

In his first and second issues, appellant contends that the evidence was legally

and factually insufficient to support his conviction for possession, either as the

principal actor or as a party to the offense.

A. Standard of Review

A legal-sufficiency challenge requires us to determine whether, after viewing

the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Johnson

v. State , 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State , 943 S.W.2d 152,

155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although our analysis considers

all of the evidence presented at trial, we may not re-weigh the evidence and substitute

our judgment for that of the fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000).

In a factual-sufficiency review, we view all of the evidence in a neutral light,

and we will set the verdict aside only if the evidence is so weak that the verdict is

clearly wrong and manifestly unjust, or the contrary evidence is so strong that the

standard of proof beyond a reasonable doubt could not have been met. Escamilla v.

State , 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State , 144

S.W.3d 477, 481 (Tex. Crim. App. 2004) ). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga , 144 S.W.3d at

481–82. Our evaluation may not intrude upon the fact-finder’s role as the sole judge

of the weight and credibility accorded any witness’s testimony. Cain v. State , 958

S.W.2d 404, 407 (Tex. Crim. App. 1997) . The fact-finder alone determines what

weight to place on contradictory testimonial evidence, as it depends on the fact-finder’s evaluation of credibility and demeanor. Id. at 408–09. As the determiner of

the credibility of the witnesses, the fact-finder may choose to believe all, some, or

none of the testimony presented. Id. at 407 n.5. In conducting a factual-sufficiency

review, we must discuss the evidence that, according to appellant, most undermines

the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003) .

The standards of review for legal and factual sufficiency challenges are the

same for direct and circumstantial evidence cases. Sharp v. State, 707 S.W.2d 611,

614 (Tex. Crim. App. 1986) .

B. The Law

To establish unlawful possession of a controlled substance, the State must

prove beyond a reasonable doubt that (1) the defendant exercised actual care, custody,

control, or management over the substance, (2) knowing that it was contraband. Tex.

Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2004–2005); Gilbert

v. State , 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). “A

person is criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally responsible,

or by both.” Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). “A person is criminally

responsible for the conduct of another if, acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid

another person to commit the offense.” Id. § 7.02(a)(2) (Vernon 2003). Each party

to the offense may be charged with its commission. Id. § 7.01(b).

A person acts intentionally with respect to the nature of his conduct if it is his

conscious objective or desire to engage in the conduct or cause the result. Id.

§ 6.03(a). A person acts knowingly with respect to the result of his conduct when he

is aware that his conduct is reasonably certain to cause the result. Id . § 6.03(b).

Intent can be inferred from the acts, words, and conduct of the accused. Patrick v.

State , 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Similarly, knowledge can be

inferred from the conduct of and remarks by the accused and from circumstances

surrounding the acts engaged in by the accused. See Dillon v. State , 574 S.W.2d 92 ,

94–95 (Tex. Crim. App. 1978).

An offense is committed only if a person voluntarily engages in conduct,

including an act, an omission, or possession. Tex. Pen. Code Ann. § 6.01(a)

(Vernon 2003) . Possession is voluntary “if the possessor knowingly obtains or

receives the thing possessed or is aware of his control of the thing for a sufficient

time to permit him to terminate his control.” Id. § 6.01(b).

When a defendant’s possession of contraband is not exclusive, the State may

prove knowing possession by evidence affirmatively linking the defendant to the

contraband. See Brown v. State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

Affirmative links may be established by direct or circumstantial evidence. Id.

C. Analysis

1. Legal Sufficiency

In his first issue, appellant contends that the evidence is legally insufficient to

affirmatively link him to the cocaine found in his truck. Specifically, appellant

contends that the evidence fails to show that he individually possessed any portion

of the cocaine or acted as a party to the offense.

To show possession, the State is merely required to show an affirmative link

between appellant and the drug to the degree that a reasonable inference may arise

that appellant had knowledge of the existence of the contraband and exercised control

over it. See id. ; Dubry v. State , 582 S.W.2d 841, 843 (Tex. Crim. App. 1979). We

consider the totality of the circumstances and not the number of links to determine if

appellant is affirmatively linked to the contraband. See Gilbert v. State , 874 S.W.2d

290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Factors that may

establish affirmative links include whether:

(1) the accused was the owner of the place where the contraband was found;

(2) the accused was the driver of the vehicle in which the contraband was

found;

(3) the contraband was in plain view;

(4) the contraband was in an enclosed area;

(5) the contraband was found on the same side of the car seat as the accused

was sitting;

(6) the contraband was conveniently accessible to the accused;

(7) paraphernalia to use the contraband was in view of or found on the accused;

and

(8) the accused’s conduct indicated a consciousness of guilt.

Id.

Here, the jury could have reasonably concluded that several factors

affirmatively linked appellant to the cocaine found in his truck. The evidence shows

that appellant was the owner of the vehicle in which the cocaine was discovered. In

addition, appellant was the driver at the time of the instant offense. See Roberson v.

State , 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)

(reasoning that appellant’s status as driver of vehicle containing narcotics, when

combined with other evidence, can be sufficient to uphold possession conviction).

The evidence shows that each of the baggies containing cocaine was found in

an enclosed area, the cab of the truck, located below or conveniently near where

appellant had been sitting. See Gilbert , 874 S.W.2d at 298 (reasoning that these

factors provide affirmative links). When appellant got out of the truck, he left his

door open. Officer Ditta could see two baggies of yellowish substance on the seat,

in plain view, through the open door. See id. (finding narcotics in “plain view” on

seat is affirmative link). The baggies were found partially stuffed into the driver’s

seat. Officer Ditta found the third and fourth baggies stuffed into the middle portion

of the seat. The jury could have reasonably construed the “shuffling around” that

Officer Ditta described as an attempt by appellant to conceal the contraband by

stuffing it in the seat.

In addition, the jury could have reasonably concluded that appellant’s conduct

throughout the incident indicated consciousness of guilt. See id. (concluding that

such behavior provides affirmative link). First, the evidence shows that appellant

drove erratically and attempted to evade Officer Ditta, ignoring his lights and siren.

See id. (failing to stop for officer is affirmative link because it suggests that appellant

is attempting to dispose of contraband before pulling over). Appellant swerved to

leave an entrance ramp to State Highway 6 and led Officer Ditta down a residential

street before stopping. Officer Ditta testified that appellant’s behavior was suspicious

because it was consistent with intoxication and of evading detention. Second, the

testimony shows that, immediately upon stopping, appellant and his two passengers

were seen “shuffling around” in the truck—described by Officer Ditta as “a lot of

movement,” “lifting up in the seat,” and “looking back out the window” at him.

Officer Ditta testified that, in his experience as a law enforcement officer, this

behavior is suspicious because it indicates extreme nervousness and an attempt to

locate the police officer, to see if he notices the actions. Finally, the evidence shows

that appellant got out of the truck before Officer Ditta approached and began rapidly

walking away. He refused to stop when commanded and attempted to rid himself of

the keys. The jury could have reasonably concluded that appellant’s conduct in

attempting to evade Officer Ditta from the time the pursuit began, through the attempt

to conceal the cocaine, to the attempt to slip away from the truck and lose the keys

were actions consistent with consciousness of guilt.

Moreover, even if one of the other passengers initially possessed the cocaine,

the jury could have reasonably concluded that appellant was guilty of the offense as

a party because he intentionally acted to promote or assist in the commission of the

offense. Investigator Travis Higginbotham, of the Grimes County District Attorney’s

Office, interviewed passenger Ross Taplin. Higginbotham testified that Taplin

explained that he worked for appellant, at appellant’s body shop, and that he and

appellant drove in appellant’s truck to Navasota to deliver a trailer. Taplin stated that

the cocaine was purchased in Baytown and that they were together the entire time

from Baytown to Navasota. From this evidence, the jury could reasonably infer that

appellant knowingly possessed the cocaine in his truck and ultimately attempted to

assist in the commission of the offense by evading Officer Ditta and assisting in

concealing the cocaine in the truck seat.

We conclude that this evidence affirmatively links appellant to the cocaine

either as the principal actor or as a party to the offense. There is ample evidence to

support a conclusion by the jury that appellant exercised actual custody and control

over the substance, knowing that it was contraband, or that he acted with the intent

to promote or assist Taplin’s commission of the offense . See Tex. Pen. Code Ann.

§ 6.01(b); Brown , 911 S.W.2d at 747 . 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 the cocaine found in his truck either as the

principal actor or as a party to the offense. See Johnson , 23 S.W.3d at 7 ; Howley , 943

S.W.2d at 155 .

In a subissue, appellant contends that, even if the evidence is sufficient to show

that he possessed the cocaine, there is no evidence that he possessed more than four

grams. Specifically, appellant contends that the substances in the four baggies were

combined and that only the mixture was tested—rendering the results from the

individual baggies inconclusive. However, the testimony of Camille Stafford, of the

Department of Public Safety Crime Laboratory, reflects that she conducted

cumulative and individual analyses on the samples. The State presented the four

baggies as one exhibit at trial. Because we conclude that there is ample evidence to

affirmatively link appellant to all four baggies, only the total weight of the contraband

recovered is necessary. The laboratory evidence shows that 13.67 grams of cocaine

was recovered, the precise portion contained in any particular baggie is irrelevant.

Appellant’s first issue is overruled.

2. Factual Sufficiency

In his second issue, appellant contends that the evidence is factually

insufficient to affirmatively link him to the cocaine found in his truck. Specifically,

appellant contends that the evidence fails to show that he individually possessed any

portion of the cocaine or acted to assist Taplin in the commission of the offense.

The evidence shows that appellant was only one of three occupants of the truck

at the time of the offense. When the accused is not in exclusive control of the place

where the substance is found, there must be additional independent facts and

circumstances which affirmatively link appellant to the contraband and show that he

had knowledge or control. See Wiersing v. State , 571 S.W.2d 188, 190 (Tex. Crim.

App. 1978). As discussed above, the State provided independent evidence that

affirmatively linked appellant to the cocaine as the primary actor or as a party to the

offense.

Appellant asserts that Ross Taplin confessed that Taplin alone purchased the

cocaine and that neither appellant nor the other passengers had any knowledge of its

existence in the truck. However, Higginbotham’s testimony also shows that Taplin

did not know where in Baytown he purchased the cocaine and did not know how

much it cost—stating that he believed he paid $60.00. Higginbotham testified that,

in his prior experience as a narcotics officer, the amount of cocaine recovered in the

truck, over thirteen grams, would have realistically cost over $1,000.00.

Coupling this evidence with the evidence that appellant was Taplin’s employer,

that the two were traveling in appellant’s truck, with appellant driving, and that over

$1,700.00 was recovered from appellant’s shirt pocket, the jury could have

reasonably concluded that Taplin’s version of the events was not credible. The trier

of fact is the exclusive judge of the facts, the credibility of witnesses, and the weight

to be given their testimony. Williams v. State , 902 S.W.2d 505, 507 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d); Sharp , 707 S.W.2d at 614 . The trier of

fact is entitled to accept one version of the events and reject another and may accept

or reject any portion a witness’s testimony. Williams , 902 S.W.2d at 507 ; Sharp , 707

S.W.2d at 614 .

Appellant also asserts that the evidence linking him to all four baggies was

insufficient because Officer Ditta failed to mark the precise location of each baggie

as it was removed from the truck. However, the evidence shows that all four bags

were found in the driver’s seat or near the mid-portion of the seat. None of them was

found beyond appellant’s reach.

As the determiner of the credibility of the witnesses, the fact-finder may choose

to believe all, some, or none of the testimony presented. See Cain , 958 S.W.2d at 407

n.4; McKinny v. State , 76 S.W.3d 463 , 468–69 (Tex. App.—Houston [1st Dist.] 2002,

no pet.). We hold that the jury’s verdict that appellant possessed the cocaine under

either theory is not irrational, or clearly wrong and manifestly unjust, nor is the

contrary evidence so strong that the standard of proof beyond a reasonable doubt

could not have been met. See Escamilla , 143 S.W.3d at 817 .

Appellant’s second issue is overruled.

Audiotape

In his third issue, appellant contends the trial court erred in excluding the

audiotape statement of Ross Taplin. Specifically, appellant contends that Taplin’s

statement would have shown that Taplin confessed to having exclusive possession

of the cocaine and would have asserted that appellant had no knowledge of its

existence. The State contends that the trial court properly found such evidence to

constitute inadmissible hearsay.

Whether evidence is admissible is a question for the trial court to resolve.

Moyer v. State , 948 S.W.2d 525, 528 (Tex. App.—Fort Worth 1997, pet. ref’d). We

allow the trial court broad discretion concerning the admissibility of evidence and

will only reverse upon a showing of a clear abuse of discretion. Williams v. State ,

535 S.W.2d 637 , 639–40 (Tex. Crim. App. 1976); Spradlin v. State , 100 S.W.3d 372,

381 (Tex. App.—Houston [1st Dist.] 2002, no pet.). An abuse of discretion occurs

when a trial court’s decision lies outside the zone of reasonable disagreement.

Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In determining

whether a trial court has abused its discretion, we consider whether the court acted

arbitrarily or unreasonably and without reference to guiding rules or principles. Id.

at 380 .

“‘Hearsay’ is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Tex. R. Evid. 801. Generally, hearsay is not admissible, unless an exception applies.

See id. 802. An exception is stated at Rule 803(24) which allows a statement against

interest. See id. 803(24). However, in criminal cases, a statement tending to expose

the declarant to criminal liability is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement. Id.

For a statement to be admissible under rule 803(24), the trial court must

determine (1) whether the statement in question exposes the declarant to criminal

liability and (2) whether corroborating circumstances clearly show the trustworthiness

of the statement. See Bingham v. State , 987 S.W.2d 54, 57 (Tex. Crim. App. 1999);

Holiday v. State , 14 S.W.3d 784, 787 (Tex. App.—Houston [1st Dist.] 2000, pet.

denied). When the trial court resolves both questions favorably, the statement can be

admitted.

The party seeking to admit the statement must show both prongs. Here, we

need not reach the first, because appellant cannot prove the second—that

corroborating circumstances clearly prove the trustworthiness of Taplin’s statement.

Factors contributing to a statement’s trustworthiness include:

(1) whether the declarant’s guilt is consistent with the named person’s guilt;

(2) whether the declarant committed the crime;

(3) the declarant’s timing;

(4) the declarant’s sponteneity;

(5) the relationship between the declarant and the person to whom the

declarant spoke; and

(6) the existence of independent corroborative facts.

Bingham , 987 S.W.2d at 58 .

Here, Taplin’s guilt is not inconsistent with appellant’s because possession is

not mutually exclusive, and Officer Ditta testified that he saw appellant and Taplin

together in the truck. In addition, Taplin’s statement was given after being arrested

and in the context of interrogation, at a time when motivation to curry favor with law

enforcement existed. Further, independent facts include Officer Ditta’s testimony

that appellant was driving and ignored police lights and siren. Officer Ditta testified

that he saw all three occupants of the truck shifting up in the seat, leaning, and

looking back at him when he stopped the truck. Appellant was the only occupant

who attempted to escape the scene. When he searched the truck, Officer Ditta found

cocaine behind the driver and the middle portion of the bench seat. Taplin was riding

on the far passenger side.

Even if the trial court had improperly excluded the statement, a review of the

entire record shows that any error would not have affected the substantial rights of

appellant. The appellant wanted to put before the jury the evidence that Taplin

confessed to exclusive possession. However, the evidence shows that, at the time of

trial, Taplin was in a Huntsville jail for this offense and available to provide

testimony at appellant’s trial. The record shows that the trial court issued an order to

bring Taplin to court but defense counsel told the deputy to send him back because

defense counsel had chosen not to call him to testify. Further, Taplin’s statements

were put before the jury in the form of Investigator Higginbotham’s testimony

concerning the statements in the interview. Hence, appellant had the opportunity to

confront Taplin and render this issue moot, yet he declined.

We hold that the trial court did not abuse its discretion in excluding the

evidence.

Appellant’s third issue is overruled.

Improper Closing Argument

In his fourth issue, appellant contends that the trial court erred when it denied

his motion for mistrial and motion for new trial based on the State’s closing

argument. Appellant argues that the State injected new facts into the trial and struck

at him over his counsel’s shoulder. Specifically at issue are the following remarks by

the prosecution in closing :

[State]: And you know what stinks about this case is they didn’t

bring Ross Taplin. And guess why they didn’t bring Ross

Taplin? Because he did not want me to cross-examine him

because I had all kind [sic] of questions that I wanted to

ask Ross Taplin like why did your attorney try and blame

it on Aubrey Minor?

[Defense]: I’m sorry?

[State]: Why does your attorney work (inaudible).

[Defense]: Objection

THE COURT: Sustained.

[Defense]: Move for mistrial.

THE COURT: Denied.

At the conclusion of argument, outside the presence of the jury, the following

dialogue took place:

[Defense]: The State’s prosecutor . . . mentioned that Ross Taplin’s

lawyer works in the same office as Aubrey Minor’s lawyer

and I would like to cross-examine him about that or

something to that extent, I think.

THE COURT: I didn’t hear it. I will be honest with you, if she said that

that is improper. I didn’t hear that in evidence. I did not

hear her argue–

[Defense]: That’s what she said.

[State]: I think my first question was–I said I would like to have

asked a question, why did your attorney blame it on

Aubrey Minor and something like doesn’t your attorney

work with Mr. Hamm or something like that.

In its brief, the State appears to interpret appellant’s contention as a challenge

to a comment on the failure to produce Taplin at trial. However, we construe

appellant’s argument as an assertion that the State injected new facts into the trial and

struck at appellant over the shoulder of his counsel by insinuating that Taplin’s

attorney worked with defense counsel and that they may have acted in bad faith or in

collusion. Appellant argues that such insinuation is improper and inflammatory.

We review a trial court’s refusal to grant a mistrial for an abuse of discretion.

Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Permissible jury

argument must be restricted to (1) a summation of the evidence; (2) a reasonable

deduction from the evidence; (3) answering argument of opposing counsel; or (4) a

plea for law enforcement. Guidry v. State , 9 S.W.3d 133, 154 (Tex. Crim. App.

1999); Sandoval v. State , 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 1999,

pet. ref’d) . Generally, argument outside these boundaries is improper and may be

cured by an instruction to disregard. Martinez v. State , 17 S.W.3d 677, 691 (Tex.

Crim. App. 2000). Only in extreme circumstances, when the prejudice is incurable,

will a mistrial be required. Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App.

2004).

The State argues that, although appellant objected and requested a mistrial, he

failed to request an instruction to disregard and has waived any error. To preserve a

complaint for appellate review, the record must show that “a complaint was made to

the trial court by a timely request, objection, or motion” that was pursued to an

adverse ruling. Tex. R. App. P. 33.1; see Young v. State , 137 S.W.3d 65 , 69 & n.5

(Tex. Crim. App. 2004). Generally, the “traditional and preferred” method of

pursuing an objection to an adverse ruling is to, in sequence, (1) make an objection,

(2) request an instruction to disregard, and (3) move for mistrial. Young , 137 S.W.3d

at 69 .

The request for an instruction to disregard is essential when such instruction

would “enable the continuation of the trial by an impartial jury.” Id. at 70 ; McGuinn

v. State , 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) ( determining that appropriate

remedy for curable improper argument is instruction to disregard) . The failure to

request an instruction forfeits appellate review if the event could have been cured by

such an instruction. Young , 137 S.W.3d at 70 . However, if the argument is so

prejudicial that an instruction to disregard would not be sufficient to remove the

harm, a request for mistrial will preserve error. Id. We determine whether the

prejudicial effect of the argument was incurable.

Harm arising from improper argument is incurable if (1) the argument is

extreme, improper, injects new and harmful facts into the case, or violates a

mandatory statute, and (2) is so inflammatory that its prejudicial effects cannot

reasonably be cured by an instruction to disregard. Long v. State , 823 S.W.2d 259,

267 (Tex. Crim. App. 1991).

A prosecutor risks improperly striking at a defendant over the shoulder of

counsel when the argument refers to defense counsel personally and explicitly

impugns defense counsel’s character. Mosley v. State , 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998). Here, the State injected appellant’s counsel personally into its

closing argument. The question, “[w]hy did your attorney try and blame it on Aubrey

Minor? ” in the context of whether his counsel worked with appellant’s counsel was

suggestive that the attorneys worked together to construct a defense. In addition,

whether appellant’s counsel works with Taplin’s counsel is a fact not previously in

the record. The statements could have been calculated to convey to the jury an

impression that defense counsel acted in bad faith and relied upon evidence not in the

record. See Fuentes v. State , 664 S.W.2d 333, 335 (Tex. Crim. App. 1984).

Even if we assume without deciding that the argument was improper, we

cannot say that the isolated and veiled suggestion in closing, that the record shows

was inaudible and the trial court also stated it did not hear, was so inflammatory that

any prejudicial effects could not reasonably have been cured by an instruction to

disregard. See Long , 823 S.W.2d at 267 ; cf. Fuentes , 664 S.W.2d at 336–37. Hence,

appellant’s failure to request such instruction resulted in waiver of this issue. See

Young , 137 S.W.3d at 70 (considering failure to request instruction to disregard

curable error results in waiver of issue on appeal).

Appellant’s fourth issue is overruled.

Punishment Our review of the record reveals a clerical error in the trial court’s judgment.

The signed verdict reflects that the jury convicted appellant of “possession of cocaine,

4–200 grams.” However, the trial court’s written judgment states that the jury

convicted appellant of “possession of a controlled substance, cocaine, of at least 4

grams but less than 200 grams with intent to deliver .” (Emphasis added.)

Although neither party has raised this issue, we may, sua sponte, reform a

clerical error in the trial court’s judgment to ensure that it reflects the jury’s verdict.

See St. Julian v. State , 132 S.W.3d 512, 517 (Tex. App.—Houston [1st Dist.] 2004,

pet. ref’d). “An appellate court has the power to correct and reform a trial court

judgment ‘to make the record speak the truth when it has the necessary data and

information to do so, or make any appropriate order as the law and nature of the case

may require.’” Nolan v. State , 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.]

2001, no pet.) (quoting Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas

1991, pet. ref’d); see Tex. R. App. P. 43.2(b) (stating that appellate court may modify

the trial court’s judgment and affirm it as modified); Id. 43.6 (stating that appellate

court “may make any other appropriate order that the law and the nature of the case

require”) . This power is not dependent upon there being a request by a party. Tyler

v. State , 137 S.W.3d 261, 268 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

Here, the jury’s verdict form states that appellant was found “guilty of

possession of cocaine, 4–200 hundred grams. ” This verdict was announced in open

court and accepted by the trial court, as f ollows:

THE COURT: Do we have a verdict?

FOREPERSON: Yes, sir.

THE COURT: . . . Okay. “We, the jury, find the defendant, Aubrey

Minor, Jr., guilty of possession of cocaine, four to two

hundred grams.” Signed, Rebecca Tubbs, Foreperson.

Does anyone desire that we poll the jury?

(Jury polled)

THE COURT: The Court will accept the verdict of the jury, ladies and

gentlemen, you are now discharged.

The judgment signed by the trial court, however, states that appellant was

convicted of “possession of a controlled substance, cocaine, of at least 4 grams but

less than 200 grams with intent to deliver .” (Emphasis added.) In addition, the

judgment states that the verdict announced in open court and received by the court

was as follows: “We the jury find the defendant, Aubrey Minor, Jr., guilty of

possession of a controlled substance, cocaine, more than 4 grams, but less than 200

grams, with intent to deliver .” (Emphasis added.) Finally, the judgment states that

“[i]t is therefore ORDERED, ADJUDGED, AND DECREED by the Court that the

Defendant is GUILTY of the offense of possession of a controlled substance, cocaine,

of at least 4 grams but less than 200 grams with intent to deliver .” (Italics added.)

These entries in the written judgment explicitly contradict the jury form and the

reporter’s record.

Because we have the complete record before us concerning the jury’s verdict

and the trial court’s acceptance in open court, we have the necessary information to

reform the judgment to reflect the true finding of the jury.

See Knight v. State , 581

S.W.2d 692, 694 (Tex. Crim. App. 1979) (reforming judgment to conform to record);

Nolan , 39 S.W.3d at 698 (examining clerk’s and reporter’s records and reforming

clerical errors in judgment); cf. State v. Shepard , 920 S.W.2d 420 , 422–23 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref’d) (examining record too incomplete to

reform because intent of trial court could not be ascertained and remanding for new

hearing on punishment). Accordingly, the judgment is reformed to delete the words

“with intent to deliver” to conform to the record .

CONCLUSION

We affirm the trial court’s judgment as reformed.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2( b).