Opinion
NO. 09-19-00313-CRNO. 09-19-00314-CR
03-17-2021
DANIEL ANDREW MACGINNIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 1A District Court Tyler County, Texas
Trial Cause Nos. 13,331 & 13,332
MEMORANDUM OPINION
A jury found Appellant Daniel Andrew MacGinnis guilty of possession of a controlled substance, namely methamphetamine, in an amount of one gram or more but less than four grams, and guilty of unlawful possession of a firearm by a felon. In each case, the jury found both enhancement paragraphs to be true and assessed punishment at ninety-nine years of imprisonment for the offense of possession of a controlled substance and life imprisonment for the offense of possession of a firearm by a felon. Raising five issues, MacGinnis appeals. We affirm the trial court's judgments.
Evidence at Trial
Officer Lawrence Hicks with the Woodville Police Department testified that early in the morning on September 29, 2017, he initiated a traffic stop of a pickup truck with a faulty rear license plate light. According to Officer Hicks, he spoke to the driver, MacGinnis, and advised MacGinnis that he "had a license plate light hanging down." There was also a female passenger in the vehicle. Officer Hicks testified MacGinnis was nervous and "talked a lot[.]" Officer Hicks asked MacGinnis if he had any weapons in the vehicle, and MacGinnis told the Officer he had a black powder pistol underneath the seat. Officer Hicks had MacGinnis exit the vehicle for safety reasons because of the possibility of a weapon in the vehicle.
Under the applicable section of the Penal Code that defines a "firearm," certain replicas of an antique or curio firearm manufactured before 1899 are not included in the definition of a firearm if the replica does not use rim fire or center fire ammunition. See Tex. Penal Code Ann. § 46.01(3).
According to Officer Hicks, a "pat down" of MacGinnis revealed MacGinnis had many items in his pockets, including multiple knives. Hicks could not discern whether the items in MacGinnis's pockets were weapons or not, so he asked MacGinnis to empty the contents of his pockets. When he pulled an item out of his pocket, Officer Hicks could tell something else was in the pocket and MacGinnis "immediately turned to the right in an effort to try to put distance between what was still in his pocket" and the officer. According to Officer Hicks, in his experience that meant MacGinnis was hiding something. MacGinnis tried to get his hand into the pocket even though Officer Hicks instructed MacGinnis to stop and not to do so. After he calmed MacGinnis down and stopped him from reaching in his pocket, Officer Hicks found "a small Zip Lock baggy containing methamphetamine[]" in MacGinnis's pocket. Officer Hicks placed MacGinnis under arrest and then looked for the weapon inside the vehicle. Officer Hicks testified that the female passenger told him that she saw two guns in the vehicle and that both guns were loaded.
Officer Hicks testified that underneath the front seat he found "a replica weapon, black powder revolver, loaded with .44 caliber projectiles," and in the back seat behind the driver's seat he found a .22 caliber revolver. Officer Hicks testified that MacGinnis told him that both guns were his. According to Officer Hicks, although the black powder revolver was not a modern firearm, the weapon could still inflict a deadly wound. Under the front driver's seat of the vehicle Officer Hicks also found a pouch containing drug paraphernalia for methamphetamine.
Officer Hicks testified that after he received a copy of the chemist's analysis identifying the substance in MacGinnis's pocket as methamphetamine, he did a criminal history check, and based on that check, he also charged MacGinnis with the offense of felon in possession of a firearm. Officer Hicks testified that he ran the serial number on the .22 caliber weapon through the crime information data base and there was "no record[,]" which means that the serial number had not been entered into the record as "a stolen or suspect weapon." According to Officer Hicks, the NCIC system does not identify a weapon's owner. Officer Hicks testified that the place where MacGinnis was stopped during the traffic stop was not the address listed for MacGinnis's residence. Officer Hicks also testified that MacGinnis was not the registered owner of the truck he was driving.
Officer Troy Costello, an officer with the Woodville Police Department, also testified at trial. Officer Costello previously worked as an officer with the Tyler County Sheriff's Office, and he and another officer were dispatched for an officer-in-need-of-assistance call on the evening that Officer Hicks arrested MacGinnis. When Officer Costello arrived, Officer Hicks had already placed MacGinnis under arrest. According to Officer Costello, Officer Hicks asked him to do a second pat down of MacGinnis and transport him to the sheriff's department. During the second pat down, Officer Costello obtained two syringes and turned them over to Officer Hicks.
Lori Raesz, a forensic scientist with the Texas Department of Public Safety Houston DPS Crime lab, testified that she analyzed the substance from this case and made a report. Raesz testified that she found the substance contained methamphetamine weighing 1.00 gram including dilutants and adulterants. Her report was admitted into evidence.
After the jury found MacGinnis guilty of both offenses, MacGinnis pleaded "true" to each of the enhancement offenses, a conviction in 1984 for second-degree felony sexual assault for which MacGinnis received a ten-year sentence, and a conviction in 2007 for second-degree aggravated assault with a deadly weapon for which MacGinnis had received a five-year sentence. MacGinnis also stipulated to several exhibits that were admitted into evidence at the punishment phase: a conviction in 2007 for aggravated kidnapping for which he received a five-year sentence, a conviction in 1981 for burglary of a habitation with intent to commit theft for which he received an eight-year sentence, a conviction in 1984 for sexual assault as a repeat offender for which he received a ten-year sentence, convictions in 1990 in California for robbery by force, kidnapping, and rape for which he received a total of twenty-six years in prison, and a 1992 California conviction for possession of a weapon by an inmate for which he received a two-year sentence.
During the punishment phase, a Texas Ranger, Sergeant Brandon Best, testified that in 2018 he had identified MacGinnis as a suspect in the murder of Patricia Ann Howell Jacobs, whose body had been discovered in the Neches River in Port Arthur in 1988. Sergeant Best testified that the autopsy showed there was blunt force trauma to Jacobs's head. Her clothing was collected as evidence in 1988 but could not be analyzed for DNA until 2019. Sergeant Best testified that because MacGinnis was a registered sex offender in Texas and California, he was required to submit his DNA samples into a national database. According to Sergeant Best, the DNA found on Jacobs's underwear matched the DNA in the national DNA indexing system for MacGinnis. Sergeant Best testified that the month prior to this trial MacGinnis was arrested for the murder of Jacobs. Sergeant Best testified that the Jacobs case was currently pending and MacGinnis's bail had been set at $1 million. The indictment against MacGinnis for Jacobs's murder was admitted into evidence. According to Best, when he reviewed records of MacGinnis's offenses during his investigation of the murder, he found "a definite pattern, a definite trend" and Best believed MacGinnis was a serial rapist, a serial kidnapper, and a danger to the general public. Best also believed the female passenger that was with MacGinnis when he was pulled over in this case could have been his next victim.
Analysis
In his first issue, MacGinnis challenges the sufficiency of the evidence supporting the jury's finding of actual and knowing possession of the .22 revolver by MacGinnis beyond a reasonable doubt. According to MacGinnis, the evidence is insufficient to support the jury's finding that he possessed the .22 revolver because the two videos admitted at trial prove he did not acknowledge existence of the gun or state that it was his, the .22 was not found on his person but instead found "buried under all the rubbish in the back seat of the truck which was on loan to [him] by his brother[,]" the .22 was not readily apparent or conveniently accessible to MacGinnis, statements on the videos by the female passenger do not "describe or confirm possession of a .22[,]" the .22 was not fingerprinted to confirm MacGinnis's handling of the pistol or ever admitted into evidence, and, despite Officer Hicks's testimony, MacGinnis "steadfastly denied possession of a .22" when questioned at the scene.
In deciding whether sufficient evidence supports a verdict, we review all 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 crime beyond a reasonable doubt." In our review, we consider all the evidence before the jury. In jury trials, the jury acts as the sole judge of the credibility and weight to attach to the testimony. Juries may weigh any circumstantial evidence admitted in the trial in the same way they weigh direct evidence when deciding whether the defendant is guilty. Thus, even though there may not be direct evidence to establish the defendant committed the alleged offense, the cumulative force of the incriminating circumstances may offer sufficient support for a jury's verdict, which allows the verdict to be affirmed on appeal. As the court reviewing the evidence admitted in a trial, our role "is simply to ensure that the evidence presented supports the jury's verdict and that the State has presented a legally sufficient case of the offense charged."
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App, 1999).
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)).
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
See Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018) (citing Hooper, 214 S.W.3d at 13).
Queeman, 520 S.W.3d at 622.
The Court of Criminal Appeals has also explained that our review of "all of the evidence" includes evidence that was properly and improperly admitted. If the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Direct and circumstantial evidence are treated equally: "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt."
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).
Jackson, 443 U.S. at 326.
Hooper, 214 S.W.3d at 13.
To establish unlawful possession of a firearm by a felon, the State must prove the defendant: (1) was previously convicted of a felony offense; and (2) possessed a firearm after conviction and before the fifth anniversary of his release from confinement or supervision, whichever is later. A separate statute defines "[p]ossession." The State can prove the defendant knowingly or intentionally possessed a firearm by introducing either direct or circumstantial evidence to establish the defendant (1) exercised care, custody, or control of the firearm, (2) was conscious of his connection with the firearm, and (3) possessed the firearm knowingly or intentionally. When, as in this case, the State's evidence relating to possession of the firearm is circumstantial, the evidence before the jury must establish the defendant's connection to the firearm was more than fortuitous.
Tex. Penal Code Ann. § 46.04(a)(1). The Defendant stipulated to allegations in the indictment that he was previously convicted of a felony and that the alleged possession of a firearm occurred before the fifth anniversary of his release.
Id. § 1.07(a)(39).
See id.; Greer v. State, 436 S.W.3d 1, 5 (Tex. App.—Waco 2014, no pet.).
See Greer, 436 S.W.3d at 5 (citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)).
The State was not required to establish that MacGinnis had exclusive possession of the firearm. When, however, the evidence before the jury does not establish the defendant had the firearm on his person or that he had exclusive possession of the gun, the evidence in the trial must affirmatively link the defendant to the gun. The affirmative links must show either that the defendant voluntarily possessed the gun or that he "'was conscious of his connection with the weapon and knew what it was.'" The "affirmative links" requirement is designed to protect an innocent bystander from being convicted of possession based solely upon the fact the evidence established the defendant was seen near another person's gun.
See id. (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)).
See Barlow v. State, 586 S.W.3d 17, 23 (Tex. App.—Beaumont 2019, pet. ref'd); Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011) (op. on reh'g), aff'd, 364 S.W.3d 854 (Tex. Crim. App. 2012).
Stout v. State, 426 S.W.3d 214, 218 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (quoting Jones, 338 S.W.3d at 742).
Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) (quoting Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005)).
To determine whether the evidence admitted in the trial sufficiently established affirmative links between the defendant and the firearm, courts look to the following non-exclusive factors: (1) was the firearm in plain view; (2) did the defendant own the vehicle where the firearm was found; (3) was the defendant driving the vehicle where the firearm was found; (4) was the firearm found near the defendant in a location where the defendant could have easily accessed the weapon; (5) was the firearm found on the same side of the vehicle as the defendant; (6) was the firearm found on the defendant; (7) did the defendant attempt to flee; (8) did the defendant's conduct indicate his consciousness of guilt, including extreme nervousness or furtive gestures; (9) did the defendant have any special connection or relationship to the firearm; (10) was the place where the firearm was found enclosed; (11) did the occupants of the vehicle in which the firearm was found give the police conflicting statements about relevant matters; and (12) did the defendant's affirmative statements connect him to the firearm, including incriminating statements made by the defendant when arrested.
Stout, 426 S.W.3d at 218 (citing James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd)).
While courts use the above non-exclusive factors to examine whether the evidence affirmatively links the defendant to the firearm, "[t]he absence of various links" is not dispositive but may be weighed with other links that are present. The logical force of the links must allow a reasonable jury to conclude the defendant possessed the gun.
Swapsy v. State, 562 S.W.3d 161, 165 (Tex. App.—Texarkana 2018, no pet.) (quoting Williams v. State, 313 S.W.3d 393, 398 (Tex. App.—Houston [1st Dist.] 2009, pet, ref'd)).
Id. (citing Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006)).
The evidence the jury had before it included several affirmative links connecting MacGinnis to possession of the .22. First, Officer Hicks testified that MacGinnis admitted the .22 was his. Second, Officer Hicks testified that the female passenger told him that she saw two guns in the vehicle. Third, Officer Hicks's bodycam video recording includes audio of the female passenger telling Officer Hicks that she saw MacGinnis with a .44 and a .22 earlier that evening. Fourth, MacGinnis was driving the vehicle in which the firearm was found, and it was accessible to MacGinnis because it was behind the driver's seat.
MacGinnis argues that the .22 was "buried under rubbish" behind the seat in a truck that was owned by MacGinnis's brother and then loaned to MacGinnis, and that MacGinnis denied any knowledge of that gun. Further, he argues that contrary to Officer Hick's testimony, the video recordings do not depict MacGinnis admitting the firearm was his. The jury could have believed that MacGinnis had possession of the .22 even though it was hidden under some rubbish and could have believed Officer Hick's testimony even if the bodycam recording does not include audio from MacGinnis admitting the .22 was his. We conclude that the logical force of the links established by the evidence submitted at trial would allow a reasonable jury to conclude the defendant possessed the .22 and the evidence allowed the jury to reasonably find MacGinnis guilty beyond a reasonable doubt of possession of the .22 caliber firearm. We overrule issue one.
In his second issue, MacGinnis argues he was not given proper notice of the State's intent to introduce at punishment MacGinnis's recent arrest and indictment for the murder of Patricia Jacobs in 1988. According to MacGinnis, the State filed the Second Amended State's Notice of Intent to Introduce Evidence of Extraneous Offenses, Bad Acts, and Character only four days before trial. MacGinnis argues that the notice was untimely under article 37.07(3)(g), and it was also inadequate under the statute because it failed to include the name of the alleged victim of the crime or bad act. MacGinnis also argues that the trial court failed to hold a hearing to hear evidence of the murder outside the jury's presence as required by the order granting his motion in limine.
To preserve a complaint for our review, a party must have presented the complaint to the trial court in a timely request, objection, or motion stating the specific grounds, if not apparent from the context, for the desired ruling. Further, the party must obtain an express or implicit adverse trial court ruling or object to the trial court's refusal to rule. For an objection to be timely, it generally must be lodged as soon as the basis for the objection becomes apparent. The complaint made on appeal must also comport with the complaint made in the trial court or the error is forfeited.
Tex. R. App. P. 33.1(a)(1); Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016).
Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262-63 (Tex. Crim. App. 2013).
Tex. R. Evid. 103(a)(1); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
MacGinnis asserts he made a timely request for the notice in his motion in limine. We note that "when a document seeks trial court action, it cannot also serve as a request for notice triggering the State's duty under Article 37.07, § 3(g)." Furthermore, his motion in limine did not request that the State give notice of extraneous offenses. And the only objection MacGinnis lodged at trial to such evidence was that the testimony was "unfair" and "prejudicial" because "there's been no trial or conviction." Accordingly, MacGinnis did not preserve the complaint he now makes on appeal regarding the untimeliness and inadequacy of the State's notice of its intent to offer extraneous-offense evidence.
Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998).
See Tex. R. App. P. 33.1(a)(1), (a)(2); London, 490 S.W.3d at 507; Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) ("We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.").
To the extent MacGinnis argues on appeal that the trial court failed to hold a hearing outside the jury's presence to hear evidence of the murder as required by the order granting his motion in limine, he has not preserved this complaint. A motion in limine does not take the place of a timely objection and does not preserve error, whether the motion in limine was granted or denied. MacGinnis did not object to Sergeant Best's testimony that MacGinnis became a suspect in Jacobs's murder until after Sergeant Best had already provided the testimony, and even then, MacGinnis's objection was on the grounds that the testimony was "unfair and prejudicial" and not that he was entitled to a hearing under the order on his motion in limine. Issue two is overruled.
McDuff v. State, 939 S.W.2d 607, 618 (Tex. Crim. App. 1997); Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979).
See Tex. R. App. P. 33.1(a)(1); Stevens v. State, 671 S.W.2d 517, 521 (Tex. Crim. App. 1984) (objection must be made in a timely fashion, or at the earliest possible opportunity, and failure to do so constitutes a waiver of the complaint).
In his third issue, MacGinnis challenges the sufficiency of the evidence supporting the jury's finding that the murder of Patricia Jacobs in 1988 (for which he has not been convicted) was attributable to MacGinnis beyond a reasonable doubt. We construe this contention as a challenge to legal sufficiency of the evidence supporting the alleged extraneous offense pertaining to Jacobs. Although courts of appeals review sufficiency of the evidence supporting a conviction, "'we do not review the sufficiency of the evidence of an extraneous offense to support the jury's assessment of punishment.'" Rather, we construe such arguments as a challenge to admission of the extraneous-offense evidence. The only objections MacGinnis made at trial to the complained-of testimony were that the testimony was "unfair and prejudicial." On appeal he does not argue that the trial court abused its discretion in overruling his objections, but we construe his challenge in this issue to the admission of the extraneous-offense evidence in the context of the objections he made at trial. In doing so, we review the admission of extraneous offense evidence under an abuse of discretion standard.
See Thompson v. State, 425 S.W.3d 480, 491 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).
Id. (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)).
The Texas Code of Criminal Procedure article 37.07, section 3(a)(1) governs the admissibility of evidence during the punishment phase of a non-capital trial and provides,
. . . evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible,
regardless of whether he has previously been charged with or finally convicted of the crime or act.In the punishment phase, the jury's purpose is to determine what sentence should be assessed. "The policies that operate during the punishment phase of a non-capital trial include (1) giving complete information to the jury to allow it to tailor an appropriate sentence for the defendant; (2) the rule of optional completeness; and (3) whether the appellant admits the truth during the sentencing phase." "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." The factors to be considered by the trial court in determining whether Rule 403 bars the admission of evidence include: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).
Ellison v. State, 201 S.W.3d 714, 719-20 (Tex. Crim. App. 2006).
Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004) (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)).
Tex. R. Evid. 403.
Erazo, 144 S.W.3d at 489.
The trial court could have concluded that the evidence had probative value in that it helped the jury tailor the sentence to the defendant by assisting the jury to decide whether MacGinnis poses a danger to the community and whether he would be likely to reoffend once he is released. The testimony did not take long to present to the jury, and the evidence was not so inherently inflammatory that it would be likely to cause the jury to act in an irrational, indelible way. The trial court could have determined that the prejudicial effect of the extraneous offense evidence offered in punishment did not unduly outweigh its probative value. We conclude that the ruling was well within the "zone of reasonable disagreement." We overrule issue three.
See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
In issue four, MacGinnis argues the trial court erred in allowing the Texas Ranger, who was not designated as an expert witness, to testify to his conclusions and opinions that MacGinnis was a serial killer and rapist and that MacGinnis would have raped the female passenger if the officer had not pulled him over the night of the arrest. MacGinnis's objections during punishment and during the testimony in question never challenged whether Sergeant Best was properly disclosed or named as an expert or whether he was qualified to render expert opinions and, therefore, this complaint was not preserved for appellate review. We overrule issue four.
See Tex. R. App. P. 33.1(a)(1); Thomas, 505 S.W.3d at 924; Saldano, 70 S.W. 3d at 889.
In issue five, MacGinnis argues that the State's "evidence and argument" regarding MacGinnis's "possession of a black powder replica of a firearm, together with the definition provided to the jury about the possession of a firearm, was prejudicial to Appellant in that it caused confusion in the jury's minds about which firearm [Appellant] was alleged to possess, leading to a conviction of Felon in the Possession of a Firearm." According to MacGinnis, even though his possession of the black powder replica pistol is not a violation of section 46.04, the State "intentionally confused and misled the jury about whether this weapon could be considered by the jury in convicting Appellant[]" by (1) having Officer Hicks testify that the replica pistol could be lethal; (2) having Officer Hicks lump together testimony of MacGinnis's admission to possessing the guns; (3) failing to provide the part of the definition excluding the black powder pistol from the definition of a firearm in the jury charge or his argument; and (4) deliberately confusing the jury in closing argument. MacGinnis complains about that part of the State's closing argument as follows:
Right off the bat Mr. MacGinnis admitted to this Court and to you that he was a convicted felon. Right off the bat when he was stopped, did he have any weapons in the car? I have a black powder pistol .44 caliber. Now why did he mention black powder pistol? Is it because it's not defined as a firearm? But yet can he use it as such? Can it be possessed by a felon? So, not only was he out [in] the middle of the night with meth and meth paraphernalia and a pistol, he had another pistol. He didn't want to tell them about that one because he knew it was illegal for him to possess it. That one right there. (Indicating)
MacGinnis's appellate brief fails to provide a legal argument regarding any of the State's allegedly prejudicial evidence regarding the black powder replica pistol. A defendant forfeits his right to complain on appeal about an improper jury argument if he fails to timely object to the argument or to pursue his objection to an adverse ruling during the trial. If a trial court sustains an objection asserting an improper jury argument, to preserve error on appeal, the complaining party must additionally request an instruction to disregard an offending argument if such an instruction could cure the prejudice. If the prejudice arising from an erroneous jury argument is incurable, the complaining party must move for a mistrial. In this case, the defense did not make these complaints during the trial, did not request an instruction to disregard the testimony of the State Trooper, and did not move for a mistrial in relation thereto.
See Tex. R. App. P. 38.1(f), (i).
See Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004).
See McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998).
Id.
We review unpreserved error only if the error is so egregious and created such harm that the appellant did not receive a fair and impartial trial. A harm evaluation entails a review of the whole record, including the jury charge, contested issues, weight of the probative evidence, arguments of counsel and other relevant information.
See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
Id.
In closing argument, defense counsel made statements about the replica pistol that implied that MacGinnis initially informed Officer Hicks about that black powder replica pistol, but not the .22, because he did not know about the .22. The State, rebutting such argument, suggested that MacGinnis instead only mentioned the replica pistol because he knew that one was legal, and he did not mention the .22 because he knew it was illegal. After reviewing the entire record, we conclude that Appellant has not demonstrated egregious harm. For these reasons, the trial court would not have erred in denying an instruction to disregard or a motion for mistrial.
See id.
See Young v. State, 137 S.W.3d 65, 70-71 (Tex. Crim. App. 2004) (explaining requirements for an instruction to disregard and motion for mistrial).
Next, we address MacGinnis's argument that the trial court erred in failing to include within the jury charge that part of the definition for "firearm" that excluded the black powder pistol from the definition. We review claims of jury charge error under a two-pronged test. We first determine whether error exists. If error exists, we then evaluate whether the error caused harm. The degree of harm required for reversal depends on whether that error was preserved in the trial court. When error was preserved in the trial court, we must reverse if the error is "calculated to injure the rights of [the] defendant[.]" This standard requires the reviewing court to find that the defendant "'suffered some actual, rather than merely theoretical, harm from the error.'" We consider "'the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel[,] and any other relevant information revealed by the record of the trial as a whole.'" When no proper objection was made at trial and the accused claims that the error was "fundamental," he will obtain a reversal only if the error is so egregious and created such harm that he "'has not had a fair and impartial trial'" and appellant can establish "'egregious harm.'"
See Almanza, 686 S.W.2d at 171.
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
Id.
Id.
Tex. Code Crim. Proc. Ann. art. 36.19.
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008)).
Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at 171).
Almanza, 686 S.W.2d at 171.
The jury charge provided the following definition:
"Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.The definition provided to the jury did not include the statutory exception for "a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition." During opening statements, the prosecutor explained as follows:
When [Officer Hicks] checked the vehicle, the truck, he looked underneath the seat to see if he could find a gun; and sure enough, there was a black powder gun. Any of you who know anything about pistols, that's not described as a firearm. A [] magnum black powder gun; but in the process of talking with the witness, she said there's another gun in that car, a .22. And after his inspection of the car, he found the .22 behind the driver's seat within reach of the driver and charged him with the offense of felon in possession of a firearm.The jury heard evidence from which the jury could have concluded that the .22, not just the black powder replica, was in MacGinnis's care, custody, or control, and the jury also heard evidence and argument indicating that the .22, and not the black powder replica, is a "firearm." Nothing in the record indicates that the lack of the portion of the definition of firearm describing a black powder replica would have confused the jury or caused the jury to misapply the law. Even assuming without deciding that the trial court erred in failing to provide the part of the definition excluding the black powder pistol from the definition of a firearm in the jury charge, considering the jury charge as a whole and the entire record before us, Appellant has failed to establish that the alleged error is so egregious and created such harm that he did not have a fair and impartial trial. We overrule Appellant's fifth issue.
See Tex. Penal Code Ann. § 46.01(3).
See id.
See Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ("[The] failure to give an abstract instruction is reversible only when such an instruction is necessary to a correct or complete understanding of concepts or terms in the application part of the charge.").
See Almanza, 686 S.W.2d at 171. --------
We affirm the trial court's judgments.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on January 28, 2021
Opinion Delivered March 17, 2021
Do Not Publish Before Kreger, Horton and Johnson, JJ.