text:
    David E. MARCUS, Appellant, v. Margaret A. SMITH, Appellee. In re David E. Marcus, Relator.
    Nos. 01-09-00321-CV, 01-09-00461-CV, 01-09-00702-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 17, 2009.

      Richard Bernard Farrer, Yetter, Warden & Coleman, L.L.P., Austin, TX, for Appellant.
    Earle S. Lilly, Zooey Wharton, Lilly, Newman & Van Ness, L.L.P., Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

ELSA ALCALA, Justice.

In this appeal and these petitions for writs of mandamus, David E. Marcus seeks relief from the trial court’s March 3, 2009 order dismissing his lawsuit and imposing trial attorney’s fees, and from the trial court’s April 16, 2009 temporary orders imposing appellate attorney’s fees and quashing exhibits. In three issues raised in the appeal, Marcus contends the trial court erred by (1) awarding trial attorney’s fees to Smith’s attorney; (2) awarding appellate attorney’s fees to Smith’s attorney; and (3) disallowing Marcus’s resubmission of trial exhibits after he had taken them back into his possession and withdrawn them from the court. The petition for mandamus in appellate number 01-09-00461-CV asserts the same challenges raised in the appeal concerning the award of appellate attorney’s fees. In three issues pertaining to the petition for mandamus in appellate number 01-09-00702-CV, Marcus repeats his complaint about the trial court’s refusal to allow him to resubmit trial exhibits, but he additionally asserts the trial court erred by denying his motion to enforce his visitation rights, and by directing him to pay fees for Smith’s trial attorney. Smith responds by challenging our jurisdiction over these cases and, alternatively, addressing the merits of the contentions. We conclude the trial court did not abuse its discretion by dismissing the motion to enforce the order adjudicating parentage and by awarding trial and appellate attorney’s fees. We affirm the trial court’s March 3, 2009 dismissal order, modify the trial court’s April 16, 2009 temporary orders to make the appellate attorney’s fees contingent upon successful appeal, and deny the petitions for writs of mandamus.

Background

Marcus, appellant and relator, and Margaret Smith, appellee and real party in interest, are joint managing conservators of their son. According to the order adjudicating parentage, Marcus “shall have the right to possession of the child for the first two days of Hanukkah,” and Smith “shall have the right to possession of the child beginning at noon on December 24 and ending at noon on December 26.” After the order adjudicating parentage was signed, Marcus desired to spend Christmas with his son, and he and Smith began negotiating a “swap” of holidays. Specifically, Marcus made an offer to Smith that she could have their son on the first two days of Hanukkah if he could have their son every other Christmas.

Smith decided to take their son to Mexico, and sought Marcus’s consent. Smith sent Marcus an email that stated, “In no way will it effect [sic] your visitation time with [D.M.].... I’ll probably have him back earlier than 5:00 on the 23rd.” In 2008, however, the first two days of Hanukkah occurred on December 21 and 22, so Smith’s assurance that Marcus’s visitation with his son would not be affected was inaccurate.

On November 20, 2008, Marcus gave his approval for his son to travel to Mexico with Smith. The letter stated,

I hereby give written authorization to allow [D.M.] to travel, with you, beyond the territorial limits of the United States. Also, enclosed is the signed and notarized Statement of Consent for the Issuance of [D.M.’s] (minor) passport. Hope y’all have lots a fun in Mexico. I may do the same — and take him overseas — this summer. He’ll be a little world traveler in no time.

About three weeks after Marcus gave his consent for his son to travel with Smith, Smith sent an email explaining to Marcus she had miscalculated the days their son would be away and asking for Marcus’s consent to keep their son on December 21 and 22. On December 11, 2008, Smith emailed Marcus, as follows:

I’m afraid I have made an oversight that you had days (21st and 22nd of Dec.) when I booked our trip to Mexico. When I got your letter approving the passport application and saying have a good time, I assumed that if there was any conflict with me taking [D.M.] over the holiday, (and you saying have a great time in your letter), you would have immediately brought that to my attention. I’m not sure if that was an oversight on your part, but it definitely was on mine. We have non-refundable tickets and non-refundable hotel_ I have a lot of activities planned for the kids, and I’m sure it will be a great experience for them. In the past, you have on at least two occasions asked me for [D.M.] a day early or late for scheduling trips to Florida.... So can we swap those days?

Marcus said he would agree to allow Smith to have their son on December 21 and 22 if she agreed to alternate possession of their son on future Christmases.

When Smith did not agree to alternating possession of their son on future Christmases, Marcus stated,

I know you didn’t realize it.... I hear-ya, it was a simple mistake. It’s fine. I understand. The condition under which you can have him on the 21-22 is that we swap alternating Christmases. I guess you’ve made your decision: you don’t want it badly enough to swap.

Smith did not agree to switch future Christmases but did counteroffer that they “switch for Monday and another day of your choice.” A long exchange of emails followed consisting of offers and counteroffers. The email exchange does not indicate whether Marcus and Smith reached an agreement. Marcus took Dylan to Mexico, and the trip included the first two days of Hanukkah, December 21-22, 2008.

In January 2009, Marcus moved to enforce the order adjudicating parentage by asking the court to hold Smith in contempt for denying him visitation rights for the first two days of Hanukkah. Smith answered, counterclaimed for sanctions, and moved to dismiss the suit. At the hearing on the motion to dismiss, Marcus acknowledged he gave Smith permission to take their child to Mexico. The record shows, as follows:

[Counsel for Smith]: [T]he letter you wrote on November 20, you told her to have a great time in Mexico, didn’t you? Didn’t you?
[Marcus]: Yes.
[Counsel for Smith]: Did you not send her a piece of paper telling her to sign the modification decree and she could forget about worrying about the two days?
[Marcus]: No. I offered a trade.
[Counsel for Smith]: You told her, sir, if you can remember without looking at anything, “I want to give you what you want and I want Dylan to have this Mexico trip.” Those words, remember those?
[Marcus]: Those are my words.
[Counsel for Smith]: You were more than willing, you more than willing in your heart to give Margaret, the mother of /all’s child ... the 21st and the 22nd, your Hanukkah, correct? You were willing to give her that, correct?
[Marcus]: To accommodate, absolutely.
[Counsel for Smith]: All right. As well as the 26th, and the 27th, and the 28th of this year, correct — last year?
[Marcus]: Yes.
[Counsel for Smith]: All right. But you said, sir, you "will have to switch the Christmas holiday schedule for the following years, correct?
[Marcus]: Trade for trade, correct.
[Counsel for Smith]: Sir, I didn’t ask you about trade for trade. That was you telling her?
[Marcus]: Correct.
[Counsel for Smith]: But on December 13th, December 13th, again days before she was to have left with the passport in hand or before—
[Marcus]: Yes, sir.
[Counsel for Smith]: —your letter to her, “I know you didn’t realize it until the December 1st e-mail.” “It,” I assume, being your two days, correct?
[Marcus]: Well, what does the rest say?
[Counsel for Smith]: It says, “I hear you. It was simple mistake. It’s fine. I understand.” You were talking about the two days, weren’t you?
[Marcus]: Absolutely. Trying to accommodate.

During the hearing on the motion to dismiss, counsel for Smith questioned Marcus concerning his belief whether Smith intentionally violated the trial court’s custody order. The record shows the following:

[Counsel for Smith]: When you told this Court and when you wrote her and you said, ‘Yeah, I understand; it’s a mistake,” you thought that that didn’t mean anything as far as contempt? She was still in contempt even if she made a mistake, correct?
[Marcus]: No.
[Counsel for Smith]: All right. Because you know that contempt of court is an intentional act, an intentional conduct or intentional act, right?
[Marcus]: I see, yes.
[Counsel for Smith]: Right?
[Marcus]: Absolutely.

The trial court dismissed the suit and awarded Smith $10,000 in attorney’s fees on March 3, 2009. The “Dismissal Order” states, in pertinent part,

It is further ordered that Margaret Smith’s claim for relief is granted, and hereby awards Judgment against David E. Marcus, in favor of Earle S. Lilly, for the sum of $10,000.00 towards Margaret Smith’s attorney’s fees, with interest at 10% per year compounded annually from the date this Order is signed until paid. The judgment, for which let execution issue, is awarded against David E. Marcus, and David E. Marcus is Ordered to pay the attorney’s fees to Earle S. Lilly ... on or before March 23, 2009, at 4:00 p.m.

Just before the hearing concluded, the trial court asked if the parties would like to withdraw their exhibits and the parties replied that they would.

On March 24, three weeks after the trial, Marcus resubmitted the trial exhibits he had withdrawn, and Smith moved to quash them. Specifically, Smith contended that the parties had withdrawn the exhibits by agreement, and that the trial court should not readmit them after removal from its custody.

The trial court denied Marcus’s motion to resubmit the trial exhibits and granted the motion to quash. The court explained its ruling as follows:

[T]he Court will allow you to submit the exhibits that you believe are correct and give it to the court reporter. However, the court reporter will have to state that those are not exhibits that were admitted since they were withdrawn, but you are — you can present to the Court as if they were exhibits that were not presented and they can consider that if they wish.

Marcus filed a notice of appeal on March 25, 2009, and Smith requested an award of appellate attorney’s fees.

On April 16, 2009, the trial court granted Smith appellate attorney’s fees in the following order:

[T]he Court has jurisdiction over the parties and subject matter under Texas Family Code § 109.001(b).
It is ordered the Court takes judicial notice of the attorney fee testimony by Lilly as well as his argument for attorney fees under Texas Family Code § 109.001(a)(5). It is further ordered that Margaret Smith’s request for appellate attorney fees is granted, and orders David E. Marcus to pay to Earle S. Lilly the sum of $10,000.00 on or before April 23, 2009. If not timely paid, the Court further awards Judgment, against David E. Marcus and in favor of Earle S. Lilly, in the sum of $10,000.00 for Margaret Smith’s appellate attorney fees.

The Appeal

A. Jurisdiction Over Entire Appeal

Smith has moved to dismiss Marcus’s appeal. Smith contends an appellate court has no jurisdiction over an appeal from a trial court’s denial of a motion to hold a party in contempt because the order that fails to find a party in contempt is not a final, appealable judgment. Smith asserts all of Marcus’s issues in the appeal “stem from Judge Millard’s decision not to hold Margaret in contempt for two days of visitation.” Marcus responds that “orders refusing to hold a party in contempt that fully and finally dispose of all parties and issues in the case should be appealable, in circumstances such as these, as would any other final order.” Marcus also asserts that we have jurisdiction over the final, appealable order directing Marcus to pay a money judgment.

The court of appeals has jurisdiction to hear an appeal when the “issues on appeal do not assert that the trial court erred in refusing to hold [appellee] in contempt of court.” See In re W.J.B., 294 S.W.3d 873, 878 (Tex.App.-Beaumont 2009, no pet. h.) (holding that appellate court has jurisdiction over portion of judgment when portion concerns order directing party to pay money judgment and does not assert trial court erred by refusing to hold party in contempt). For example, although an order concerns denial of contempt, the appellate court has jurisdiction over issues concerning “that portion of [a] trial court’s order denying [a] request that the trial court confirm and then reduce the alleged child support arrearage to judgment.” Id. “Decisions in contempt proceedings cannot be reviewed on appeal because contempt orders are not appealable, even when appealed along with a judgment that is ap-pealable.” Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex.App.-Fort Worth 2001, pet. denied). Contempt proceedings are not appealable because they “are not concerned with disposing of all claims and parties before the court, as are judgments; instead, contempt proceedings involve a court’s enforcement of its own orders, regardless of the status of the claims between the parties before it.” In re Office of Atty. Gen. of Texas, 215 S.W.3d 913, 915-16 (Tex.App.-Fort Worth 2007, orig. proceeding).

Here, Marcus appeals three issues — -the award of trial court fees, the award of appellate fees, and the order quashing his resubmission of trial exhibits. Although these issues may stem from the contempt action in that they result from its filing and resolution, Marcus does not challenge the trial court’s refusal to hold Smith in contempt of court. We have no jurisdiction to address the trial court’s refusal to find Smith in contempt of court, and Marcus is not asking that we address that matter. See In re W.J.B., 294 S.W.3d at 878; In re Office of Atty. Gen. of Texas, 215 S.W.3d at 916. Instead, Marcus’s appeal concerns the award for trial and appellate attorney’s fees, and the quashing of the trial exhibits, which are matters other than the merits concerning the trial court’s decision not to hold Smith in contempt. We hold we have jurisdiction over the matters concerning trial attorney’s fees and the quashing of the trial exhibits. We conclude, however, that we lack jurisdiction to address the appellate attorney’s fees in the direct appeal for reasons we explain in the next section.

B. Appellate Attorney’s Fees

In his second issue in the appeal, Marcus asserts the trial court abused its discretion by awarding appellate attorney’s fees because the order does not comply with Texas Family Code section 109.001 and is not conditioned on a successful appeal.

Smith contends we lack jurisdiction over the temporary orders because Marcus is attempting to appeal a temporary order timely entered during the pendency of an appeal, which is barred under section 109.001(c) of the Texas Family Code. Marcus responds that section 109.001(c) does not apply because this appeal is not interlocutory and is a final order in that it fully and finally awards all appellate attorney’s fees to Smith, payable immediately. Specifically, Marcus asserts the April 16, 2009 order awarding appellate attorney’s fees cannot be interlocutory because interlocutory appeals must occur before the final judgment, and the April 16, 2009 order was the final judgment.

Section 109.001 of the Texas Family Code provides:

(a) Not later than the 30th day after the date an appeal is perfected, on the motion of any party or on the court’s own motion and after notice and hearing, the court may make any order necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal as the court may deem necessary and equitable. In addition to other matters, an order may:
(5) require payment of reasonable attorney’s fees and expenses;
(b) A court retains jurisdiction to enforce its orders rendered under this section unless the appellate court, on a proper showing, supersedes the court’s order.
(c) A temporary order rendered under this section is not subject to interlocutory appeal.

Tex. Fam.Code § 109.001. Section 109.001 gives the trial court discretionary authority to render temporary orders to protect the welfare of the child during the pen-dency of an appeal, including ordering the payment of reasonable attorney’s fees and expenses, as necessary to protect the welfare of children during the pendency of an appeal. See Id. § 109.001(a)(6). “A temporary order under section 109.001 is only appropriate if a final judgment has been signed and a notice of appeal has been filed.” In re KM., No. 2-04-00044-CV, 2004 WL 2569384, at *8 (Tex.App.-Fort Worth Nov. 12, 2004, pet. denied).

“The provision in section 109.001(c) prohibiting an interlocutory appeal has been construed to mean that an appellate court lacks jurisdiction, in the pending appeal, over a complaint about the denial of a temporary order rendered during the appeal.” In re Merriam, 228 S.W.3d 413, 415 (Tex.App.-Beaumont 2007, no pet.). Mandamus is the appropriate remedy to attack a temporary order under section 109.001. See Johnson v. Johnson, 948 S.W.2d 835, 838 (Tex.App.-San Antonio 1997, pet. denied); see also In re Gonzalez, 993 S.W.2d 147,162 (Tex.App.-San Antonio 1999, pet. denied).

Here, the March 3, 2009 order dismissing the lawsuit disposed of all parties and claims in the lawsuit, and notice of appeal for that dismissal had been filed. The order signed April 16, 2009 is titled “temporary orders” and specifically references Texas Family Code section 109.001. We hold we lack jurisdiction over Marcus’s direct appeal concerning the award of appellate attorney’s fees awarded in the temporary order under section 109.001. See In re Gonzalez, 993 S.W.2d at 162; Johnson, 948 S.W.2d at 838.

C. Trial Court Attorney’s Fees

In his first issue in the appeal, Marcus contends the trial court erred by ordering him to pay $10,000 in trial attorney’s fees. Specifically, he asserts that the award of attorney’s fees did not comply with the Texas Family Code because there was no evidence that the award of fees were in the best interest of the child. Smith responds that Marcus has waived appellate consideration of trial court attorney’s fees because Marcus failed to preserve the complaint on appeal by neglecting to make a timely objection before the trial court.

“In order to preserve certain complaints regarding an award of attorney’s fees, a party must make a timely and sufficiently specific objection to such an award in the trial court.” Henry v. Henry, 48 S.W.3d 468, 481 (Tex.App.-Houston [14th Dist.] 2001) (citing Tex.R.App. P. 33.1; Massey v. Massey, 807 S.W.2d 391, 403 (Tex.App.-Houston [1st Dist.] 1991, writ denied)) (issue regarding attorney’s fees could not be raised for first time on appeal); Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex.App.-San Antonio 1995, no writ) (party failed to object to award of fees in open court or in motion for new trial).

A review of the record shows that Marcus made no objection. We hold Marcus has waived the argument that the trial court erred by granting Smith her trial court attorney’s fees. See Henry, 48 S.W.3d at 481.

D. Resubmission of Trial Exhibits

In his third issue in the appeal, Marcus asserts that he removed his trial exhibits from the custody of the court after being prompted by the trial court, and, therefore, the trial court abused its discretion by denying the readmittance of his exhibits after their removal. Specifically, prior to the conclusion of the motion to dismiss hearing, the trial court asked, “Do /all want to withdraw your exhibits?” Both parties replied that they did, and withdrew their exhibits. Marcus contends that by refusing to readmit his exhibits, the trial court prevented him from properly presenting his case to the court of appeals, a subject that is proper for appeal. See Tex.R.App. P. 44.1(a).

The contested exhibits are included in the reporter’s record and within the appendices of numerous pleadings within the record, and we relied upon the contested exhibits when formulating our opinion. The trial court, therefore, did not prevent Marcus from presenting his case for appeal. See id.

The Petitions for Mandamus

A. Applicable Law

Mandamus relief is available only to correct a “clear abuse of discretion” when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). Clear abuse of discretion occurs when a trial court “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial érror of law.” Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding)). The reviewing court may not substitute its judgment for that of the trial court when reviewing factual issues. Id. at 839-40. “Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable.” Id. at 840. “[A]n appellate court may not deal with disputed areas of fact in an original mandamus proceeding.” Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990). Specifically, “[i]f the record contains legally sufficient evidence both against and in support of the trial court’s decision then mandamus will not lie because weighing conflicting evidence is a trial court function.” In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 686 (Tex.2007, orig. proceeding).

B. Appellate Attorney’s Fees

In his sole issue in the petition for mandamus in appellate number 01-09-00461-CV, Marcus contends the trial court erred by awarding appellate fees to Smith. Marcus contends Smith failed to offer sufficient evidence that the award is necessary to preserve and protect the safety and welfare of the child, as required under section 109.001. See Tex. Fam.Code § 109.001(a)(5). Marcus also contends the court erred by making the award immediately payable rather than contingent on Smith’s success in the court of appeals.

As we note earlier in this opinion, mandamus is the appropriate means to challenge temporary orders entered under section 109.001. Tex. Fam.Code § 109.001(c); In re Gonzalez, 993 S.W.2d at 162. Also as noted earlier in this opinion, section 109.001 authorizes the trial court to render temporary orders requiring payment of reasonable attorney’s fees and expenses, as “necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal as the court may deem necessary and equitable.” Tex. Fam. Code § 109.001(a); Love v. Bailey-Love, 217 S.W.3d 38, 37 n. 1 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

Evidence is sufficient to justify appellate attorney’s fees to preserve and protect the safety and welfare of the child under section 109.001 when the recipient of appellate attorney’s fees “has primary responsibility of the children and for the care and upkeep of and the debt on the children’s principal home.” In re Garza, 153 S.W.3d 97, 101 (Tex.App.-San Antonio 2004, orig. proceeding). Smith introduced evidence that she incurred approximately $22,000 in attorney’s fees in the underlying suit, and that she would incur at least $10,000 to defend an appeal. Smith has primary responsibility for the child and for the child’s principal home. Moreover, the record shows that Smith has a “lack of funds” and “still owes [her attorney] money.” Because Smith provided evidence to the trial court to receive appellate attorney fees to preserve and protect the safety and welfare of her child, we must defer to the trial court’s decision to award the fees. See id.; see also In re J.L., 163 S.W.3d 79, 85 (Tex.2005).

We deny the petition for writ of mandamus because the record does not show the trial court acted arbitrarily or unreasonably by determining that Smith’s award of appellate attorney fees during the pendency of the appeal would help preserve the welfare of the child. An unconditional award of appellant’s appellate attorney’s fees is improper, and a trial court must condition the award upon the appellant’s unsuccessful appeal. Keith v. Keith, 221 S.W.3d 156, 171 (Tex.App.-Houston [1st Dist.] 2006, no pet.); In re Garza, 153 S.W.3d at 101 (“The trial court is expressly authorized to award appellate attorney’s fees when it is necessary and equitable to protect the welfare of the children.... [W]e hold the trial court could reasonably conclude that it would be equitable to order Stephanie to pay Xavier’s appellate attorney’s fees in the event her appeal is unsuccessful. And, because the award of appellate attorney’s fees is contingent on Stephanie being unsuccessful in her appeal, the award does not ‘penalize [Stephanie] for taking a successful appeal.’ ”). However, an unconditional award of appellate attorney’s fees does not require reversal; instead, the appellate court may modify the trial court’s judgment to make the attorney’s fees contingent upon successful appeal. Keith, 221 S.W.3d at 171. Although the trial court should have conditioned its order on success before the appellate court, its failure to do so does not require reversal. See id. We modify the trial court’s order to make the appellate attorney’s fees contingent upon successful appeal. See id.

C. Denial of Motion to Enforce Visitation

In his first issue in the petition for mandamus in appellate cause number 01-09-00702-CV, Marcus contends the trial court improperly denied his motion to enforce his visitation rights. Marcus asserts the trial court abused its discretion by dismissing his motion to enforce the order adjudicating parentage because Smith violated the order adjudicating parentage by failing to relinquish their son for Hanukkah visitation with Marcus.

“Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus.” In re Long, 984 S.W.2d 623, 625 (Tex.1999). A relator may seek mandamus relief for a trial court’s finding that a party is not in contempt. See, e.g., Rowe v. Moore, 756 S.W.2d 117, 119 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding).

Here, the record shows a dispute over whether Marcus and Smith agreed to modify the order adjudicating parentage allowing Smith to possess their son for the first two days of Hanukkah in 2008. See Brady, 795 S.W.2d at 714; In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 686. The record also shows a dispute over whether Smith’s violation of the order adjudicating parentage was unintentional. See id. We deny the petition for mandamus because the record does not show the trial court acted arbitrarily or unreasonably. See Walker, 827 S.W.2d at 839.

D. Trial Attorney’s Fees

In his second issue in the petition for mandamus in appellate number 01-09-00702-CV, Marcus contends the trial court erroneously ordered him to pay trial attorney’s fees. We have already addressed that issue in the direct appeal. Because Marcus had an adequate remedy by appeal, mandamus relief is unavailable to Marcus. See id.

E.Exhibits

In his third issue in the petition for mandamus in 01-09-00702-CV, Marcus asserts the trial court erred by refusing to permit him to resubmit his trial exhibits. We have already addressed this issue in the direct appeal. Because Marcus had an adequate remedy by appeal, mandamus relief is unavailable to Marcus. See id.

Conclusion

We affirm the trial court’s judgment, modify the trial court’s April 16, 2009 order to make the appellate attorney’s fees contingent upon successful appeal, and deny the petitions for writs of mandamus. All outstanding motions are overruled as moot.

      . The appeal is cause number 01-09-00321-CV. The petitions for writs of mandamus are cause numbers 01-09-00461-CV and 01-09-00702-CV. The underlying case is In The Interest Of D.S.M., A Minor Child, cause number 2004-45005, in the 310th Judicial District Court of Harris County, Texas, the Hon. Lisa Millard, presiding.

      . In other sections of his brief, Marcus asserts that the March 3, 2009 order dismissing the lawsuit was the final judgment.


source: Caselaw Access Project

author: GEORGE C. HANKS, JR., Justice.

license: Public Domain

text:
    William Michael FERGUSON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-09-00211-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 22, 2009.
    Rehearing Overruled Feb. 23, 2010.

      Dan Wood Jr., Terrell, TX, for Appellant.
    Nicholas Ball, Asst. Criminal District Attorney, Canton, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA and HANKS.
   OPINION

GEORGE C. HANKS, JR., Justice.

Following a bench trial, the court convicted appellant, William Michael Ferguson, of possession of a controlled substance in Penalty Group 1, namely, cocaine, in an amount less than one gram. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 2.02, 1993 Gen. Law 3586, 3706-07 (amended 2009) (current version at Tex. Health & Safety Code Ann. § 481.115(a), (b) (Vernon Supp. 2009)). The court assessed punishment at six years in prison and a fíne of $500. On appeal, appellant argues that the evidence is legally and factually insufficient to support his conviction. We affirm.

Background

On the night of January 31, 2008, a patrol officer stopped the white van in which appellant was a passenger. Officer Heath Burton, with the City of Canton Police Department, stopped the van because the license plate was not illuminated and not visible within 50 feet, as required by state law. Once the van stopped, Officer Burton determined that the license plate was registered to a different vehicle.

There were three people in the van: a male driver (Danguah Ohene-Bekoe), a female (Crystal Gail Ferguson) in the passenger seat, and appellant sitting on the floor in the back of the van, directly behind the driver and passenger seats. The back of the van did not have a seat, and there were clothes scattered across the floor.

When asked where they were driving, appellant, Ohene-Bekoe and Ms. Ferguson gave conflicting stories. The video taken from Officer Burton’s dashboard camera was admitted at trial and played for the court. The tape shows that Ohene-Bekoe told officers that they were coming from Dallas, where they were “just hanging out.” Ms. Ferguson told officers that she lived in Fruitsvale some of the time, they were on their way to her mother’s home in Fruitsvale, and that they lived in Dallas. When officers asked appellant what they were doing in Dallas, he responded, “We were just visiting — We live there.” Officer Burton said that the occupants of the vehicle were “extremely nervous,” did not make eye contact, and were “fidgety.” Ohene-Bekoe stated he owned the van and indicated that there was nothing illegal in the vehicle, but he refused to consent to a search. Because of the conflicting stories, nervous behavior, and refusal to consent to a search, Officer Burton called Sergeant Hall with the K-9 unit to perform an open-air search around the vehicle.

When the K-9 unit arrived and conducted the open-air search, the dog alerted on the vehicle more than once. During the resulting search, officers found a plastic bag containing a white powder the officers believed to be cocaine, four syringes, and two glass crack pipes. The plastic bag was found underneath some clothing on the floor in the rear portion of the van, where appellant had been sitting. The plastic bag and its contents were sent for testing, and a chemist determined the bag contained cocaine. Appellant affirmatively stated that the baggie in the van did not belong to him, and he had no knowledge of any drugs in the van.

The syringes and pipes were found in the back of the front passenger seat, stuffed underneath the fabric. The syringes and pipes were located in an area accessible to someone in the back of the van, and appellant was next to the back of this seat when the van was stopped. Officer Burton testified that the pipes, the syringes, and the bag containing cocaine were located closer to appellant than anyone else in the vehicle.

Despite the fact that the case was tried to the bench, the court separated the guilt and punishment phases of trial. During the guilt/innocence stage of the trial to the bench, appellant testified that both he and his wife had had a drug problem in the past and he admitted that he was “strung out on heroin for eight years.” Appellant also admitted he stole from family and stores to support his drug habit. Appellant testified to several prior convictions, including multiple convictions for possession of a controlled substance. However, he stated that his pattern of drug use ended when he went into state jail in 2006 for six months and “started getting serious” about attending church. Appellant testified that he has not been involved with drugs since the time he was released from jail in October of 2006.

Appellant testified that he met Ohene-Bekoe about a month prior to the incident, and the two began working together operating a curb painting business. Appellant described Ohene-Bekoe as “socially and mentally restricted a little bit,” but said they were able to work well together. Appellant testified that his prior experience with drugs led him to believe that Ohene-Bekoe was on drugs, explaining “I’m an ex-addict, so I recognize all the signs.” Appellant testified that Ohene-Bekoe “would seem like he was on something sometimes.” However, appellant stated he had no knowledge that any contraband was located in the vehicle. Appellant claimed that he and his wife were merely getting a ride with Ohene-Bekoe because he and his wife were unable to drive.

On December 5, 2008, the court announced that it found appellant guilty of possession of a controlled substance in Penalty Group 1. The court set a sentencing hearing for four days later on December 9, 2008, to allow for the preparation of a presentence investigation (PSI) report.

During his PSI interview, appellant said that he had smoked cocaine with Ohene-Bekoe and Ms. Ferguson on the day he was arrested. This statement was included in the PSI report, which was presented to the court at the “sentencing” hearing. At the “sentencing” hearing, appellant testified that he had used cocaine on the day he was arrested.

Sufficiency of the Evidence

Appellant contends the evidence is legally and factually insufficient to support his conviction.

A. Standard of Review

In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. See, e.g., Walmer v. State, 264 S.W.3d 114, 116-17 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (applying the same standard of review applicable to a jury’s verdict to a sufficiency review of bench trial findings); see also Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 184 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (“In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence used to support them, just as we would review a jury’s findings.”).

In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). The standard is the same for both direct and circumstantial evidence cases. Laster, 275 S.W.3d at 517-18. We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

In our factual-sufficiency review, we view all of the evidence in a neutral light. Laster, 275 S.W.3d at 518. We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); see Laster, 275 S.W.3d at 518. Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been the fact-finder. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App.2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the fact-finder’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the fact-finder’s determination. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the fact-finder’s determination. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

The trier of fact is the ultimate judge of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008); see Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1984). The fact-finder alone determines the weight to be to given contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Lancon, 253 S.W.3d at 706. The fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 707.

B. Unlawful Possession of a Controlled Substance

A person commits an offense if he knowingly or intentionally possesses less than one gram of cocaine. Tex. Health & Safety Code Ann. § 481.115(a), (b). When an accused is charged with unlawful possession of cocaine, the State must prove (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the accused knew the object he possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005).

The law does not require exclusive possession of the drug. Roberson v. State, 80 S.W.3d 730, 735(Tex.App.-Houston [1st Dist.] 2002, pet. refd) (citing Harvey v. State, 487 S.W.2d 75, 77 (Tex.Crim.App.1972)). “The mere fact that a person other than the accused might have joint possession of the premises does not require the State to prove that the defendant had sole possession of the contraband, only that there are affirmative links between the defendant and the drugs such that he, too, knew of the drugs and constructively possessed them.” Poindexter, 153 S.W.3d at 412 (emphasis in original).

When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that he had knowledge of and control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Poindexter, 153 S.W.3d at 406. Evidence that affirmatively links an accused to the substance suffices for proof that he possessed it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). The affirmative link may be shown by direct or circumstantial evidence, but in either case it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 405-06. As explained in Poindexter, “The 'affirmative links rule’ is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs.” Id. at 406.

Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App.2006). However, presence or proximity, when combined with other links, may well be sufficient to establish that element beyond a reasonable doubt. Id. It is not the number of links that is dispositive but, rather, the logical force of all of the evidence. Id. The following non-exclusive affirmative links are recognized as sufficient, either singly or in combination to establish a person’s connection to contraband:

(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.

Id. at 162 n. 12.

C. Evidence to be Considered

In its brief, the State asserts that we should consider all evidence presented at the bench trial, including evidence presented during the “sentencing” hearing, in our sufficiency review. The State argues that bifurcation only applies to jury trials and, therefore, even when bench trials are conducted as if they were bifurcated, they are truly unitary.

“[I]n a trial without a jury on a plea of not guilty, evidence that is introduced at the ‘punishment’ stage of trial is considered in deciding the sufficiency of the evidence to prove guilt.” Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim.App.2001). The Court in Barfield arrived at this holding by recognizing that “[t]he bifurcated-trial procedure ... is not authorized in a trial without a jury.” Id. at 449; see Tex.Code Crim. Proc. Ann. art. 37.07, § 2(a). Therefore, even if a trial court employs procedures characteristic of bifurcation, a bench trial remains a unitary trial punctuated by a recess in the middle. Barfield, 63 S.W.3d at 450-451.

In his reply brief, appellant attempts to distinguish the present case from Barfield. Specifically, appellant argues that this case can be distinguished because the trial court told the parties that a “sentencing” hearing would be held on a later date. This, however, is the very type of procedure that Barfield, addressed.

Barfield noted that courts frequently bifurcate bench trials and re-convene “sometimes months later” with a “penalty stage.” Id. at 450. The Court noted that “[although a bifurcated trial without a jury is not authorized, it is not necessarily a harmful error.” Id. “[T]he unauthorized ‘bifurcation’ of a trial without a jury does not mean that a genuinely separate punishment phase exists.” Id. The Court explained, “the decision of the court in a unitary trial is not fixed until it renders judgment on guilt and punishment after all the evidence and arguments have been heard.” Id. at 451.

Appellant also argues that Barfield did not consider whether evidence that is inadmissible in determination of guilt could nonetheless be used as evidence in a determination of sufficiency of the evidence. Specifically, appellant argues that extraneous offenses are normally inadmissible to prove guilt and that it would be unfair to consider extraneous offenses brought out in the “punishment phase” to support the finding of guilt. However, we need not address this contention because appellant testified to his prior convictions during the “guilt/innocence” phase of his trial.

The evidence from the “sentencing” hearing that is relevant in our links analysis is appellant’s testimony that he used cocaine on the day of the offense, which is contrary to his prior testimony. In a footnote in his brief, appellant appears to allege coercion by pointing to instructions given by the judge when ordering the PSI. We do not find the judge’s comments to be inconsistent with the Barfield procedure. See generally Barfield, 68 S.W.3d 446.

Because we are bound by the Texas Court of Criminal Appeals’ holding in Bar-field, in deciding the sufficiency of the evidence to prove guilt, we consider all evidence presented at the bench trial, including evidence that is introduced at the “punishment” portion of trial. See id. at 450 (“[I]n a trial without a jury on a plea of not guilty, evidence that is introduced at the ‘punishment’ stage of trial is considered in deciding the sufficiency of the evidence to prove guilt”).

D. Legal Sufficiency

Appellant contends that the evidence is legally insufficient because the State did not establish the requisite link between himself and the controlled substance. Specifically, appellant argues that a motor vehicle passenger’s close proximity to “hidden drugs” is not legally sufficient to support a conviction for possession of a controlled substance. Appellant asserts that he was found guilty only because of his location in the vehicle at the time of the traffic stop by police.

Because appellant was not in exclusive possession of the motor vehicle where the cocaine was found, independent facts and circumstances must have been established at trial that link appellant to the cocaine. See Evans, 202 S.W.3d at 162. While it is true that mere presence at the location where drugs are found is insufficient, alone, to establish actual care, custody, or control of those drugs, appellant fails to mention the other evidence linking him with the controlled substance. See id.

Several of the non-exhaustive factors mentioned in Evans are present in this case. See id. The facts tending to connect appellant with the cocaine include:

(1) Appellant was present at the scene when the search of the vehicle was conducted. Appellant was riding in the vehicle when it was stopped and searched.
(2) Drug paraphernalia was discovered during the search. Four syringes and two glass pipes used for smoking crack cocaine where found during the search.
(3) The location where the drugs were found was enclosed. The contraband was found in an enclosed space, the passenger compartment of the van in which appellant was riding. Appellant had gotten a ride with Ohene-Bekoe from Dallas, and the van was stopped in Canton. Thus, appellant had been in the enclosed space with the drugs for at least the travel time between Dallas and Canton.
(4) The contraband was located in close proximity to appellant and was conveniently accessible to him. Officer Burton testified that the cocaine, syringes, and pipes were located in an area closest and accessible to appellant. See Robinson v. State, 174 S.W.3d 320, 326 (Tex.App.-Houston [1st Dist.] 2005, pet. ref d) (in order for contraband to be conveniently accessible, it must be “within the close vicinity of the accused and easily accessible while in the vehicle so as to suggest the accused had knowledge of the contraband and exercised control over it”).
(5) Appellant’s conduct indicated a consciousness of guilt. The video taken from the dash of Officer Burton’s patrol car was played at trial, and the fact finder had the opportunity to view appellant’s behavior. Officer Burton testified that all of the occupants of the vehicle, including appellant, were nervous and shaking. Officer Burton testified that the occupants of the vehicle would not look at him in the eyes as they were speaking. The behavior described by Officer Burton could reasonably be determined by the fact-finder to be evidence of consciousness of guilt.
(6) Appellant was under the influence of cocaine at the time he was arrested. Contradicting his previous trial testimony that he had no knowledge of the cocaine in the vehicle, appellant testified during the sentencing portion of the trial that he used cocaine with Ohene-Bekoe and Ms. Ferguson on the day he was arrested. Appellant admitted that he lied under oath when he testified that he stopped using drugs in 2006.

Although some of the Evans factors are not present, it is well established that the absence of certain links do not weigh against those that are present. See Evans, 202 S.W.3d at 162; Robinson, 174 S.W.3d at 326.

In support of his legal sufficiency points, appellant relies on Roberson v. State, 80 S.W.3d 730 (Tex.App.-Houston [1st Dist.] 2002, pet. ref d), where we found evidence insufficient to support a conviction for possession. Appellant asserts that the facts of his case are similar to the facts in Roberson. In Roberson, the defendant was the driver of the vehicle in which police discovered cocaine, but the only other evidence linking the defendant to the cocaine was his denial of a close relationship to the other occupants of the vehicle, while strong links existed connecting the passengers to the drugs. Id. In Roberson, the defendant was “composed, gave no resistance, did not appear to be intoxicated or under the influence of drugs, and had a pleasant personality” throughout the traffic stop, while one of the passengers appeared to be “under the influence of something” and the other passenger had drugs on his person. Id. at 733-34. The instant case is distinguishable from Roberson because there are several links connecting appellant to the drugs, including appellant’s admission that he used cocaine with the two other passengers in the car the day of the arrest and the contraband was found in a location more accessible to appellant than to any other passenger in the car.

Appellant also cites Lassaint v. State, 79 S.W.3d 736 (Tex.App.-Corpus Christi 2002, no pet.), and Kyte v. State, 944 S.W.2d 29 (Tex.App.-Texarkana 1997, no pet.), in which the reviewing courts concluded that the evidence was insufficient to support the appellants’ possession convictions. The facts of the cited cases are distinguishable, particularly in that none involved an admission by the appellant that he used drugs earlier on the day of the arrest. In Lassaint, the narcotics were found in a speaker box in a car that was not occupied by the appellant. 79 S.W.3d at 743. There was no evidence that Las-saint ever exercised any ownership or control over the car in which the narcotics were located or even knew of the existence of the speaker box where the narcotics were located. Id. The narcotics were neither in close proximity nor conveniently accessible to Lassaint. Id. at 744. Here, the narcotics were discovered under a pile of clothes where appellant was sitting, and appellant admitted to using cocaine with the other two passengers in the vehicle earlier in the day. In Kyte, the narcotics were found under the floor mat, hidden from view, in a car that a garage owner had temporarily loaned to Kyte while he repaired her truck. 944 S.W.2d at 33. In the present case, appellant was in the van belonging to his business partner and admitted he used cocaine with the two other passengers on the day he was arrested.

In his brief, appellant points out that Officer Burton said that appellant would not have been arrested or tried if the driver had admitted ownership of the drugs. Appellant points to the statement to argue that there was insufficient evidence linking him to the drugs, as opposed to the other occupants of the vehicle. However, appellant’s reliance on the Officer’s statement is misplaced because the law does not require the State to prove sole, exclusive possession of the drug. See Roberson, 80 S.W.3d at 735. Rather, the State’s burden is to show that “there are affirmative links between the defendant and the drugs such that he, too, knew of the drugs and constructively possessed them.” Poindexter, 153 S.W.3d at 412.

Viewed in the light most favorable to the fact-finder's determination, the evidence shows that (1) appellant was present at the scene when the search of the vehicle was conducted, (2) drug paraphernalia was discovered during the search, (3) the location where the drugs were found was enclosed, (4) the contraband was located in close proximity to appellant and was conveniently accessible to him, (5) appellant’s conduct indicated a consciousness of guilt, and (6) appellant was under the influence of cocaine at the time he was arrested, as he admitted he used cocaine earlier that day. The fact-finder could have reasonably inferred, from the cumulative force of the evidence, that appellant exercised actual care, custody, or control of the cocaine. See Evans, 202 S.W.3d at 166 (concluding that evidence, “when viewed in combination and its sum total, constituted amply sufficient evidence”); Robinson, 174 S.W.3d at 326 (affirming possession conviction of front-seat passenger in truck where cocaine was located in factory compartment in back wall of truck, and noting that cocaine was within vicinity and easily accessible to passenger). We conclude that the evidence is sufficient for a rational trier of fact to have found the elements of possession of a controlled substance beyond a reasonable doubt. See Tex. Health & Safety Code Ann. § 481.115(a), (b).

We overrule appellant’s first issue.

E. Factual Sufficiency

In his second point, appellant argues that the evidence is factually insufficient to sustain his conviction. Specifically, appellant contends that after considering “missing links,” the officer’s statement about not arresting all of the van’s occupants if one of them claimed ownership of the drugs, and the “trace” amount of cocaine, the guilty finding is factually insufficient.

In support of his factual insufficiency argument, appellant points to missing links. Appellant’s analysis is flawed because, as Evans instructs, the enumerated factors are merely links which “Texas courts have recognized as sufficient, either singly or in combination, to establish a person’s possession of contraband.” Evans, 202 S.W.3d at 162 (emphasis added). Appellant’s argument treats the links as a check list, as if the number of factors present necessarily correlates with the strength of a case. This type of reasoning misconstrues the links analysis. Rather than giving equal weight to each factor listed, we are to look at the “logical force of all of the evidence” together. See id. Pointing out possible links that were not established at trial does not negate the links that were established. Lair v. State, 265 S.W.3d 580, 588 (Tex.App.-Houston [1st Dist.] 2008, pet. ref d) (citing Evans, 202 S.W.3d at 164 (rejecting court of appeals’ determination of legal insufficiency that was based in part on recitation of links that “did not exist in this case”)).

Again, appellant points to the statement made by the police officer that he would not arrest everyone if someone claimed ownership of the drugs. But the fact that the officer was asking someone to claim ownership of the drugs does not mean there was insufficient evidence linking appellant to the drugs. See Roberson, 80 S.W.3d at 735 (holding that proof of sole possession is not necessary).

Appellant argues that only a “trace” amount of drugs were found and that it was not a usable amount. However, there is no requirement that one must possess a usable amount of controlled substance or that the substance be visible to the naked eye. Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App.1995). Nevertheless, appellant argues that, because there was only a trace amount, “[i]t follows that the original contents of the baggie had either been consumed or discarded at a time previous to the search.” He goes on to argue that there is no evidence that appellant was under the influence of drugs or that he had used the drugs in the bag. Appellant misstates the record; appellant himself testified that he used cocaine on the day he was arrested with the two other passengers in the vehicle. This testimony leads to the logical inference that appellant used the cocaine that was found in the vehicle.

Appellant acknowledges that Officer Burton testified that all occupants of the van were extremely nervous but argues that nervousness is a tenuous link. It is true that courts have recognized that “nervousness is a tenuous link to the contraband because most people are somewhat nervous when confronted by a police officer.” Jenkins v. State, 76 S.W.3d 709, 713 n. 3 (Tex.App.-Corpus Christi 2002, pet. ref d). However, the idea that some links are stronger than others is subsumed in our links analysis which considers the “logical force of all of the evidence.” See Evans, 202 S.W.3d at 162 (emphasis added) (holding it is “not the number of links that is dispositive, but rather the logical force of all of the evidence”).

Appellant argues that “nervousness is the only other possible evidence,” other than presence and proximity to the drug, and therefore, the evidence is factually insufficient. As with his legal sufficiency argument, appellant fails to mention the totality of the evidence connecting appellant to the possession of the cocaine.

In deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter, 153 S.W.3d at 406. Here, the fact-finder was able to make a discriminating assessment of the facts, and found that the State proved appellant’s possession of cocaine beyond a reasonable doubt.

When viewed in a neutral light, the evidence shows that (1) appellant was present at the scene when the search of the vehicle was conducted, (2) drug paraphernalia was discovered during the search, (3) the location where the drugs were found was enclosed, (4) the contraband was located in close proximity to appellant and was conveniently accessible to him, (5) appellant’s conduct indicated a consciousness of guilt, and (6) appellant was under the influence of cocaine at the time he was arrested, as he admitted he used cocaine earlier that day. The evidence, when viewed in combination and its sum total, constituted sufficient evidence connecting appellant to the actual care, custody, control or management of the cocaine found in the area of the van in which he was sitting. See Evans, 202 S.W.3d at 166. Weighed in a neutral light, the evidence is not so weak that the verdict is clearly wrong and unjust. Laster, 275 S.W.3d at 518. Also, there is no objective basis in the record to conclude that the great weight and preponderance of the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 417. We hold the evidence is factually sufficient to support the conviction' for possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115(a), (b).

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

      . The 81st Texas Legislature amended Texas Health & Safety Code Section 481.115, effective September 1, 2009. The amendments do not affect the disposition of this case.

      . In his reply brief, it is unclear if appellant is arguing that his testimony that he used cocaine on the day in question is inadmissible extraneous offense evidence under Rule 404(b) of the Texas Rules of Evidence. We note that evidence of his using cocaine on the day he was arrested for possession of cocaine is admissible in the "guilt” stage of trial under Rule 404(b) because it shows knowledge of the presence of cocaine in the vehicle and intent to possess the cocaine in the vehicle. Tex.R. Evid. 404(b).

      . Specifically, the trial judge said to appellant's trial counsel, “if you’ll just inform your client that he needs to cooperate with — in filling out the paperwork or answering their questions regarding that.”


author: FELIPE REYNA, Justice.

text:
    Danny Eugene DANIELS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-08-00337-CR.
    Court of Appeals of Texas, Waco.
    Jan. 6, 2010.
    Rehearing Overruled March 30, 2010.

      Stan Schwieger, Law Office of Stan Sehwieger, Waco, for Appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Danny Eugene Daniels of murder and assessed his punishment at life imprisonment and a $10,000 fine. Daniels contends in his sole issue that the court erred by refusing to charge the jury on the lesser-included offense of deadly conduct. We will affirm.

The indictment charged Daniels with intentionally or knowingly causing the death of Michael Evans “by shooting him with a firearm” or alternatively by committing an act clearly dangerous to human life (with intent to cause serious bodily injury) that caused Evans’s death by shooting him with a firearm. According to the testimony, Daniels was engaged in selling illegal narcotics on the occasion in question. When Evans drove up in his truck, Daniels believed him to be the person who had taken some drugs without paying earlier in the day. Daniels ran up and reached inside the driver’s side window trying to get his money. As Evans resisted, Daniels pulled out a handgun and shot through the open window. Evans drove away, and Daniels fired a second shot at the truck. Evans died moments later from a gunshot wound.

The trial court denied Daniels’s request for submission of an instruction in the charge on the lesser-included offense of deadly conduct. The State contends that Daniels did not preserve error because he did not explain the “underlying rationale” for his request. See Pena v. State, 285 S.W.3d 459, 463-64 (Tex.Crim.App.2009). As the Court of Criminal Appeals explained in Pena, an appellate court must “consider the context in which the complaint was made and the parties’ shared understanding at that time” when evaluating whether the complaint was preserved. Id. at 464.

Pena involved the question of whether the Texas Constitution’s Due Course of Law provision provides a greater level of protection than the federal Due Process Clause. Id. at 461. The record in that case demonstrated that the trial court and the prosecution both understood the defendant’s complaint to be based on the “well established federal standard,” and the defendant “never disabused the judge of this notion.” Id. at 464. Because this was the shared understanding and because the defendant failed to argue that the Texas Constitution provides a greater level of protection than the federal constitution, the Court held that he had failed to preserve this novel constitutional issue for appellate review. Id.

Daniels’s case is different. The most important distinction is that the present case does not involve a novel constitutional issue. Daniels requested a lesser-included instruction, and that request was promptly denied without elaboration. In Pena, however, the trial judge and the attorneys engaged in a discussion about the appropriate constitutional standard for lost or destroyed evidence as established by federal caselaw. Id. at 461-62. The judge explained that he was relying on these cases in making his ruling and invited the attorneys to add “any comment” they may have on the issue. Id. at 461. In response, the defendant urged his objection under the Texas Constitution but did not argue that it provided any greater protection than the federal constitution. Id. Because he did not argue in the trial court that the state constitution provided greater protection, the Court of Criminal Appeals concluded that he had failed to preserve for appellate review his complaint that the state constitution provided greater protection. Id. at 464.

Because Daniels requested the instruction, because his complaint does not involve a novel constitutional issue, and because neither the trial court nor the prosecution appears to have misapprehended “the underlying rationale” for the request, we hold that he preserved this complaint for appellate review. Cf. id.

In determining whether the appellant is entitled to a charge on a lesser-included offense, we must consider all of the evidence introduced at trial, whether produced by the State or the defendant. This Court uses a two-pronged test in its review. First, the lesser-included offense must be included within the proof necessary to establish the offense charged; second, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser-included offense. The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given.

Young v. State, 283 S.W.3d 854, 875-76 (Tex.Crim.App.2009) (footnotes omitted).

Here, the first prong is satisfied because deadly conduct is a lesser-included offense of murder as charged in the indictment. Ortiz v. State, 144 S.W.3d 225, 232-34 (Tex.App.-Houston [14th Dist.] 2004, pet. ref d).

Regarding the second prong, Daniels relies on Ortiz in which the defendant told the police that he fired his pistol into the air two times. See id. at 234. The Fourteenth Court held that a rational jury could conclude from this statement that he “did not intend to commit serious bodily injury, but due to his poor aim or the falling trajectory of a bullet fired a block or more away, the victim was nevertheless fatally injured.” Id. Thus, the court concluded that the trial court did not err by charging the jury on deadly conduct as a lesser-included offense of murder. Id.

The State relies on Jackson v. State, 992 S.W.2d 469 (Tex.Crim.App.1999), in which the Court of Criminal Appeals considered whether a jury should have been charged on aggravated assault as a lesser-included offense of capital murder. The Court concluded that no such charge was warranted. Id. at 475. The Court stated:

A murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide.
Since there was no evidence from which a rational jury could conclude that appellant did other than cause the death of the victim, the only lesser included offense that was raised by the evidence of recklessness was manslaughter.

Id. (citation omitted).

The holding in Jackson would seem to dictate the result in Daniels’s case. However, the Court of Criminal Appeals has not been entirely consistent in following this rationale in more recent cases. For example, in Guzman v. State, 188 S.W.3d 185 (Tex.Crim.App.2006), the Court stated, “While deadly conduct is generally aimed at capturing conduct that falls short of harming another, we cannot say that all shootings resulting in death or injury are inevitably and necessarily beyond the scope of the offense of deadly conduct.” Id. at 191 n. 11. “Certainly there is nothing in the statute which expressly or even implicitly limits prosecution (or conviction) for the offense of deadly conduct to only that conduct which threatens, but fails, to cause injury to another.” Id.

The Fourteenth Court of Appeals has reached a similar conclusion.

[A] person satisfies the elements of deadly conduct even if he knowingly discharges a firearm directly at an individual. Whether the shot is fired point blank into the victim is irrelevant. Whether the victim is hit, injured, or killed is of no moment. Whether the defendant could, and perhaps should be prosecuted for murder, is unimportant— the elements of deadly conduct are satisfied. Accordingly, we are not persuaded that a jury acts irrationally if it convicts a defendant of deadly conduct where the evidence shows the victim has died.

Ortiz, 144 S.W.3d at 234 n. 9.

In her concurring opinion in Guzman, Presiding Judge Keller expressed her preference for a more bright-line rule. “I would hold that, when a defendant is charged with committing an act that causes bodily injury — e.g., aggravated assault — the second prong of the lesser included offense test is never met when the evidence that the victim was injured is undisputed.” Id. at 198 (Keller, P.J., concurring).

More recently, however, the Court has stated that a defendant does not satisfy the second prong of the test for a lesser-included offense “if there is evidence that he committed an offense that is a lesser-included of the charged offense but greater than the requested lesser-included offense.” Flores v. State, 245 S.W.3d 432, 439 (Tex.Crim.App.2008) (citing Jackson, 992 S.W.2d at 474-75; Thomas v. State, 699 S.W.2d 845, 845-52 (Tex.Crim.App. 1985)). Thus, “a defendant is not entitled to a jury instruction on a lesser-included offense if the evidence on which the defendant is relying raises another offense that ‘lies between’ the requested and charged offenses.” Id. (quoting Jackson, 992 S.W.2d at 475).

Here, Daniels suggests that “[a] rational jury could conclude that Appellant did not intend to commit serious bodily injury, but due to his poor aim, the victim was nevertheless fatally injured.” This argument, at best, would raise the lesser-included offense of manslaughter or perhaps criminally negligent homicide. See Jackson, 992 S.W.2d at 475; see also Flores, 245 S.W.3d at 439. Therefore, a rational juror could not have found that, if Daniels was guilty, he was guilty only of deadly conduct. See Jackson, 992 S.W.2d at 475; see also Armstrong v. State, 179 S.W.3d 84, 87 (Tex.App.-Fort Worth 2005, no pet.); Harris v. State, 152 S.W.3d 786, 796 (Tex.App.-Houston [1st Dist.] 2004, pet. refd); Dale v. State, 90 S.W.3d 826, 833 (Tex.App.-San Antonio 2002, pet. refd).

We overrule Daniels’s sole issue and affirm the judgment.

Chief Justice GRAY concurring with note.

       The Court’s effort to limit the scope of the error preservation requirements discussed by the Court of Criminal Appeals in Pena v. State, 285 S.W.3d 459 (Tex.Crim.App.2009), is not necessary and I find the analysis unpersuasive. The problem this case highlights, especially when combined with the unnecessary discussion of Pena, is that to adequately preserve some errors, particularly charge errors, trial counsel may need to put otherwise informal comments and discussion on the record. In this instance counsel's "objection” on the record was: "We would request, as we requested yesterday in the informal conference, Your Honor, an inclusion of the offense of deadly conduct as a lesser included.” To which the trial court responded: "That objection is overruled or that request is.” But this case is nothing other than a straightforward request for the inclusion of a lesser included charge of deadly conduct. Daniels’s argument on appeal is that the testimony of Roosevelt Young, an eye witness, could be construed as evidence that Daniels did not intend serious bodily harm, and certainly not death. This argument depends on certain inconsistencies in Roosevelt Young’s testimony and the physical evidence. Specifically the description by Roosevelt about which of allegedly two shots fired hit the truck and which shot killed Michael Evans. Young’s testimony leaves no doubt that it was a shot fired at point blank range, as Evans was pushing Daniels out of the truck window through which he had reached to take Evans’s money after an argument started over payment for drugs previously delivered, that killed Evans. The physical evidence shows a bullet penetrated the truck cab just behind and below the driver's shoulder and is consistent with the entry point of the bullet that killed Evans. The resolution of this potential conflict in the evidence is immaterial to the analysis of whether Daniels was entitled to the lesser included instruction. Neither interpretation of the evidence supports Daniels argument that he did not intend serious bodily injury and therefore does not support the submission of a lesser included instruction. Thus I concur in the judgment of this Court which affirms the trial court's judgment but do not join the Court's opinion. I do, however, specifically disagree with the dicta in the Court’s opinion that seeks to limit the preservation analysis of Pena to "novel constitutional issues.”


author: TOM GRAY, Chief Justice.

text:
    Joseph Clyde FORD, Appellant, v. The STATE of Texas, Appellee.
    No. 10-08-00236-CR.
    Court of Appeals of Texas, Waco.
    Jan. 13, 2010.
    Rehearing Overruled Feb. 16, 2010.
    Discretionary Review Granted June 16, 2010.

      Richard G. Ferguson, Waco, for Appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

Joseph Clyde Ford was convicted of failing to comply with the sex offender registration program. See Tex.Code Crim. PROC. Ann. art. 62.102(c) (Vernon 2006). He was sentenced to 25 years in prison. Because the evidence was both legally and factually sufficient to support the conviction, the trial court did not err in admitting an extraneous conviction, the trial court did not err in denying a mistake of fact instruction, and Ford was not sentenced in excess of the statutory maximum sentence, the trial court’s judgment is affirmed.

Background

Ford was a convicted sex offender who was required to comply with the registration requirements of the Sex Offender Registration Program. Tex.Code Crim. Proc. Ann. art. 62.051 (Vernon Supp.2009). Generally, he was required to inform local authorities of his address and inform them of when he moved. Ford had been living in Waco when he moved to Elm Mott. He rented a space for a travel trailer. He also registered his move with McLennan County. When he failed to pay his rent, he was evicted and his trailer was removed. Two weeks after the removal of his trailer, Ford approached his landlord and questioned him about the location of the trailer. Ford registered his move to a shelter in Waco but not until two weeks after the removal of his trailer from the lot in Elm Mott.

Sufficiency of the Evidence

In his first issue, Ford contends the evidence is both legally and factually insufficient to support his conviction. Specifically, Ford argues that the State did not prove he knew he was going to move, that it was seven days before the move, and that he knew, prior to the move, to where he was going to move. He also argues that there was no evidence, or insufficient evidence, that he intentionally, knowingly, or recklessly did not register before moving.

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App.2008). In a factual sufficiency review, the appellate court views the evidence in a neutral light and asks whether the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App.2009); Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App.2008). With either review, the jury is the exclusive judge of a witness’s credibility. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App.2001); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996).

A person commits the offense of failure to comply with the requirements of the Sex Offender Registration Program if the person is required to register and fails to comply with any requirement of the Program. See Tex.Code Crim. Proc. Ann. art. 62.102(a) (Vernon 2006). As a requirement of the Program, article 62.055(a) provides;

If a person required to register under this chapter intends to change address, ... the person shall, not later than the seventh day before the intended change, report in person to the local law enforce-
ment authority designated as the person’s primary registration authority by the department ... and provide the authority and the officer with the person’s anticipated move date and new address.

Id. art. 62.055(a) (Vernon Supp.2009).

There was no dispute about whether Ford was required to register. There was also no dispute that Ford registered with McLennan County when he moved from Waco to Elm Mott and placed a travel trailer on a rented lot. The dispute centers around Ford’s forced removal from the lot in Elm Mott.

Ford’s theory at trial was that he moved unexpectedly when he noticed his travel trailer was gone and registered his new address as soon as he had one. However, there was testimony that contradicted Ford’s theory. Ford had not paid his rent for the lot which his trailer occupied and a judgment of eviction was entered on August 30, 2007. Ford was present at the eviction hearing. Although Ford testified that he spoke with his landlord at the hearing about paying the past due rent, the landlord denied ever speaking to Ford at the hearing, or about paying the past due rent. A week after the judgment, a writ of possession was issued and, five days later, a towing company was called to move the travel trailer. The landlord testified that when the constable came to serve the writ, they got “rid of everything that [was] there.” Two weeks after the towing company was called, Ford showed up at the landlord’s business wondering where his trailer was. Ford’s reason for not knowing that his trailer was gone was that his bicycle, on which he traveled from Elm Mott to Waco daily, had become unusable and he was staying with various other people in Waco.

Based on a review of the evidence in the light most favorable to the verdict, any rational trier of fact could have found Ford guilty of Failure to Comply with Sex Offender Registration beyond a reasonable doubt. Accordingly, the evidence is legally sufficient. Further, considering all of the evidence in a neutral light, the jury was rationally justified in finding Ford guilty of Failure to Comply with Sex Offender Registration beyond a reasonable doubt. Accordingly, the evidence is factually sufficient.

Ford’s first issue is overruled.

Extraneous Conviction

In his second issue, Ford contends that the trial court erroneously admitted an extraneous conviction during the guilt/innocence phase. The conviction about which he complains is a 1991 conviction for arson. However, the trial court did not admit this conviction, Ford did.

Prior to Ford testifying, his counsel approached the court for a ruling on whether the arson conviction could be used for impeachment purposes. Ford’s counsel argued that the conviction was too remote. After hearing argument from the State on the issue, the trial court decided that if Ford took the stand, the arson conviction was “fair game.” When Ford later took the stand, he admitted that he had been convicted of arson in 1991 and explained the circumstances surrounding the arson.

A defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error. Ohler v. United States, 529 U.S. 753, 760, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000). Because Ford preemptively introduced evidence of the prior arson conviction on direct examination, he waived his right to complain about this evidence on appeal. See id.; see also Johnson v. State, 981 S.W.2d 759, 760 (Tex.App.-Houston [1st Dist].1998, pet. refd).

Ford’s second issue is overruled.

Mistake of Fact

In his third issue, Ford complains that the trial court erred in not instructing the jury on his mistake of fact defense.

“It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Penal Code Ann. § 8.02(a) (Vernon 2003). A mistake of fact constitutes a defense only if it negates the culpable mental state. Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990) (emphasis added). A defendant is entitled to an instruction on any defensive theory if the issue is raised by evidence at trial. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999). If the evidence viewed in a light favorable to appellant does not establish a mistake of fact defense an instruction is not required. Id.

As stated previously, Ford was charged with failing to comply with the Sex Offender Registration Program requirements. Pursuant to article 62.102, a person commits an offense if the person

1) is required to register; and
2) fails to comply with any requirement of chapter 62

Tex.CRIM. Peoc. Ann. art. 62.102(a) (Vernon 2006). The requirement with which Ford was cited for failing to comply was the change of address requirement. See Id. art. 62.055 (Vernon Supp.2009). This article provides, “if a person required to register ... intends to change address, ... the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority ... and provide the authority ... with the person’s anticipated move date and new address.” Id. (a).

The challenge here is determining the culpable mental state and whether Ford negated the culpable mental state so as to entitle him to an instruction on mistake of fact. Article 62.102 has no stated culpable mental state. “If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” Tex. Penal Code Ann. § 6.02(b) (Vernon Supp. 2009). Since no state of mind is specified for article 62 offenses, proof that the defendant acted intentionally, knowingly, or recklessly is sufficient. See Tex. Penal Code Ann. § 6.02(c) (Vernon Supp.2009); O’Briant v. State, No. 05-05-00067-CR, 2005 WL 2853795, *3, 2005 Tex.App. LEXIS 9004, *8 (Tex.App.-Dallas Nov. 1, 2005, no pet.) (not designated for publication). See also Aguirre v. State, 22 S.W.3d 463 (Tex.Crim.App.1999) (“... the silence of a statute about whether a culpable mental state is an element of the offense leaves a presumption that one is.”) The State alleged that Ford “intentionally and knowingly and recklessly fail[ed] to report ... the Defendant’s anticipated move date and new address ... not later than the seventh day before the intended change.” The jury was charged on those three mental states. Thus, Ford was required to negate those three culpable mental states to be entitled to an instruction on mistake of fact.

Ford’s theory at trial was that he did not realize his trailer would be moved after the eviction hearing. He argued at trial that he was entitled to the instruction because he was mistaken as to the fact that his trailer was removed and a writ of possession had been served on the property while Ford was absent. He contended the mistake of fact went to his intent to move which was an element of the offense. Ford follows the same argument on appeal. Intent to move is part of an element of the offense; however it is not one of the culpable mental states charged or one that is required to be negated to entitle Ford to the requested instruction.

But, even if Ford’s mistake about the removal of his trailer negates the intentional culpable mental state, it does not negate the reckless culpable mental state. The jury was instructed that “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Tex. Penal Code Ann. § 6.03(c) (Vernon 2003). If Ford was mistaken about whether his trailer would be removed, he was aware that he had to comply with the Sex Offender Registration Program requirements. Further, a judgment of eviction had been entered against him; and Ford consciously disregarded the risk that he would be forced to move.

Ford’s alleged mistake of fact does not negate the reckless culpable mental state. Accordingly, the trial court did not err in denying Ford’s request for an instruction on mistake of fact.

Ford’s third issue is overruled.

Illegal Sentence

In his fourth issue, Ford contends the trial court erred by rendering an illegal sentence. Ford’s complaint is that he was wrongfully sentenced within the punishment range of a first degree felony when he should have been sentenced within the range of a second degree felony. More specifically, he argues that an enhancement of punishment under article 62.102(c) from a third degree felony offense to the punishment for a second degree felony offense cannot be further enhanced to the punishment for a first degree felony offense under article 12.42(b). We disagree with Ford.

The indictment by which Ford was charged was entitled, “Failure to Comply with Sex Offender Registration (Enhanced) Article 62.102, Texas Code of Criminal Procedure.” It was also noted below the title that the offense was a third degree felony enhanced to a second degree felony. Failure to comply with the sex offender registration requirements is a third degree felony if the offender is required to register for life and verify his registration information once each year. Tex.Code Crim. Proc. Ann. art 62.102(b)(2) (Vernon 2006). The indictment alleged that Ford was required to verify his registration annually for life. Included within the indictment was an enhancement allegation that in 2006, Ford had been previously convicted of failing to comply with the Sex Offender Registration Program. Article 62.102 provides that “[i]f it is shown at the trial of a person for an offense ... under this article that the person has previously been convicted of an offense ... under this article, the punishment for the offense ... is increased to the punishment for the next highest degree of felony.” Id. art. 62.102(c).

Shortly before trial, the State filed an amended notice of enhancement which included the prior 2006 failure to comply with registration conviction and added an arson conviction from 1991. This was done, the State asserted prior to voir dire, not to punish Ford as a habitual offender, but to punish Ford as a first degree felon. Taking into account Ford’s 2006 conviction for failing to comply with the sex offender registration program and the arson enhancement allegation, the State argued that the punishment for Ford would be elevated from a third-degree felony to a first degree felony. See id.; Tex. Penal Code Ann. § 12.42(b) (Vernon Supp.2009). Ford did not disagree.

Ford complains on appeal, however, that his sentence as a first degree felon was unauthorized and is void. He argues that the enhancement allegation regarding the 2006 conviction for failing to comply with the Sex Offender Registration Program did not enhance the current offense of failure to comply under article 62.102(c) but only enhanced the punishment for the current offense from a third degree felony to a second degree felony. Thus, his argument continues, when the State attempted to also enhance punishment through section 12.42(b) of the Texas Penal Code, it could not because the current offense had not been elevated to a second degree felony. Ford contends that the current offense remained a third degree felony and the State could only enhance the punishment through section 12.42(a)(3) to a second degree felony. Tex. Penal Code Ann. § 12.42(a)(3) (Vernon Supp.2009) (“... if it is shown ... on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.”).

Although Ford did not make this complaint to the trial court, a “void” or “illegal” sentence is one that is not authorized by law and may be raised for the first time on appeal. See Ex parte Pena, 71 S.W.3d 336, 336 n. 2 (Tex.Crim.App.2002); Levy v. State, 818 S.W.2d 801 (Tex.Crim.App.1991). “A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003). Consequently, a contemporaneous objection is not necessary to preserve the error for appellate review. LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App.1992).

While there may have been other ways to properly bring Ford’s punishment to that for a first degree felony, the critical question for this proceeding is whether the language of article 62.102(c) elevates the level of the offense, or whether it is only a punishment enhancement. The resolution of this issue is not as simple as it might first appear. The legislature has not been entirely consistent in the language it uses when it comes to enhancement of punishment or enhancement of the level of the offense with the resulting increase in the range of punishment. This is in part because of the many ways the legislature has chosen to allow enhancements over the years and their choices of what constitutes elements of the offense versus punishment enhancements.

In some instances, what is a punishment enhancement only is very clear. If a statute increases the minimum or maximum of years of confinement by a specified number of years, without referencing the offense level, it is thus clear this is only a punishment enhancement. An example of such a statute is section 481.134 of the Texas Health and Safety Code. Subsection (c) of that section provides, “the minimum term of confinement or imprisonment for an offense ... is increased by five years_” Tex. Health & Safety Code Ann. § 481.134(c) (Vernon Supp.2009). See also Tex. Penal Code Ann. § 12.50(c) (Vernon Supp.2009) (“If an offense ... is punishable as a Class A Misdemeanor the minimum term of confinement for the offense is increased to 180 days.”); Tex. Penal Code Ann. § 22.021(f) (Vernon Supp.2009) (“The minimum term of imprisonment for an offense under this section is increased to 25 years if....”).

If the statute applies a multiplier, such as twice the years otherwise applicable, to the minimum or maximum number of years without reference to the level of punishment, it is likewise clear that this is a punishment enhancement rather than an enhancement of the level of the offense. An example of such a statute is section 7.188 of the Texas Water Code. That statute provides, “If it is shown at the trial of the defendant that the defendant has previously been convicted of the same offense under this subchapter, the maximum punishment is doubled with respect to both the fine and confinement, unless the section creating the offense specifies otherwise.” Tex. WateR Code Ann. § 7.188 (Vernon 2008).

Alternatively, if the statute makes reference, not to the minimum or maximum number of years of imprisonment, but rather references only the offense level thus leaving the range of punishment for the normal range by reference to the level of the offense, it is clear that is an enhancement of the level of the offense. An example of this type of statute is section 49.09, subsection (a) of the Texas Penal Code. Typically, the punishment for an offense under section 49.04, Driving While Intoxicated, is a Class B misdemeanor with a minimum term of confinement of 72 hours. Tex. Penal Code Ann. § 49.04 (Vernon 2003). Under subsection (a) of section 49.09, “... an offense under Section 49.04, ... is a Class A misdemean-or_” Tex. Penal Code Ann. § 49.09(a) (Vernon Supp.2009) (emphasis added).

The difficulty comes when the statute, after defining the level of the offenses, also provides an enhancement in punishment with reference only to another level of offense. In such a situation, is it only the punishment that is enhanced or, because the offense is explicitly being punished at a higher level is it actually the level of the offense that has thus been enhanced? From the language of the statute alone it is not always easy to determine. For example, in State v. Webb, the phrase “shall be punished for” was held to be an enhancement of punishment only when it involved a non-aggravated state jail felony. See State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App.2000). Whereas in Young v. State, the phrase “is punishable as” in a certain provision regarding drug-free zones was held to be an enhancement of the level of the offense. See Young v. State, 14 S.W.3d 748, 751 (Tex.Crim.App.2000).

This issue is further complicated by two issues. First, except for prior convictions, any finding that is going to enhance the maximum punishment level must be determined by the selected fact finder. See Barrow v. State, 207 S.W.3d 377, 379 (Tex.Crim.App.2006) (interpreting Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny). Second, even if it is an enhancement of an offense, is it the type of offense for which enhancements can be stacked? See State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App.2000). The legislature did not make all enhancements of offenses equal.

Ford relies on two opinions from the Court of Criminal Appeals to support his argument. See State v. Webb, 12 S.W.3d 808 (Tex.Crim.App.2000); see also Ex parte Coleman, 59 S.W.3d 676 (Tex.Crim.App.2001). Webb may be instructive, but it is not controlling. The issue in Webb was whether a state jail felony conviction, enhanced to the punishment range for a second degree felony under section 12.42(a)(2) may be enhanced further to the punishment range for a habitual offender under section 12.42(d). The controlling factor in Webb was that the offense for which the defendant was tried was a non-aggravated state jail felony. In that instance, the Court held that other language in 12.42(d)’s reference to “felony” did not include the non-aggravated “state jail felony” and that it could not be subject to multiple enhancements notwithstanding that aggravated state jail felonies could be so enhanced.

That is not the issue here. Ford was not tried for a non-aggravated state jail felony punishable under section 12.35(a). See Tex. Penal Code Ann. § 12.35(a) (Vernon Supp.2009). Rather, Ford was tried for a third degree felony because he had to register for life and report annually. See Tex.Code CRIM. Proc. Ann. art. 62.102(b)(2) (Vernon 2006). This case, therefore, is not controlled by Webb.

Webb is instructive, however. When deciding whether two provisions in the repeat and habitual offender provision allowed for multiple enhancements, the Court determined that

Both §§ 12.42(a)(3) and 12.42(d) allow for enhanced punishment of an aggravated state jail felony (i.e., a § 12.35(c) state jail felony), which is itself an enhancement of a state jail felony (i.e., a § 12.35(a) state jail felony). Thus the legislature has explicitly provided for certain forms of “multiple enhancements” of state jail felonies (i.e., enhancement of both offense and punishment), and the type that the state argues for in the instant case is not among them.

State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App.2000). This passage makes it clear that an enhanced offense may be further enhanced if the legislature provided for it and did not otherwise exclude or prevent it.

This interpretation is supported by the Court of Criminal Appeal’s opinion in Young v. State, where the Court stated that subsection (b) of section 481.134 in the Texas Health and Safety Code, a drug-free zone aggravating provision similar to Texas Penal Code section 12.35(c), increased the level of the offense of delivery or manufacture of a controlled substance. Young v. State, 14 S.W.3d 748, 751 (Tex.Crim.App.2000); Tex. Health & Safety Code Ann. § 481.134(b) (Vernon Supp.2009); Tex. Penal Code Ann. § 12.35(c) (Vernon Supp.2009). Importantly, the drug free zone provision mentioned in Young is not only an “aggravated” state jail felony, as that term is used in Webb, but is also an “aggravated” third degree felony.

Like subsection (c) of Texas Penal Code section 12.35 and subsection (b) of Texas Health and Safety Code section 481.134, subsection (c) of article 62.102 provides “[i]f it is shown at the trial of a person for an offense ... under this article that the person has previously been convicted of an offense ... under this article, the punishment for the offense ... is increased to the punishment for the next highest degree of felony.” Id. art. 62.102(c). We see no discernable difference between the language used in subsection (c) of section 62.102 and in subsection (c) of section 12.35 and subsection (b) of section 481.134, both of which the Court of Criminal Appeals has construed as an elevation of the level or grade of the offense and not merely an enhancement of the punishment range. Thus, using the teachings of both Webb and Young, subsection (c) of article 62.102 increases the offense level from a third degree felony to a second degree felony.

Because the offense level was increased, the State could and did further enhance the offense through the use of Texas Penal Code section 12.42(b) from punishment as a second degree felony to a first degree felony. Ford was sentenced within the range of a first degree felony and the trial court did not, then, render an illegal sentence. Ford’s fourth issue is overruled.

Conclusion

Having overruled each issue on appeal, we affirm the trial court’s judgment.

      . Ford was placed on probation for this offense in 1988. His probation was revoked in 1991 and he was sentenced to 5 years in prison. The judgment was introduced into evidence during the punishment phase of the trial.

      . The parties do not dispute that a culpable mental state is required.

      . We limit our discussion to Webb. Ex parte Coleman is a per curiam opinion that cites to Webb but provides no explanation as to whether the same type problem with the use of enhancements existed as existed in Webb.

      . "(b) An offense otherwise punishable as a slate jail felony under Section 481.112, 481.113, 481.114, or 481.120 is punishable as a felony of the third degree, and an offense otherwise punishable as a felony of the second degree under any of those sections is punishable as a felony of the first degree, if it is shown at the punishment phase of the trial of the offense that the offense was committed:
      (1) in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground; or
      (2) in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility.”
      (emphasis added)

      . "(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
      (1) a deadly weapon ... was used or exhibited during the commission of the offense ...; or
      (2) the individual has previously been finally convicted of any felony....”