*1 “Q: heavy? Is it very
A: Q: Do you [*] Pretty [*] much, think if [*] yes. [*] hit [*] somebody [*] Leroy BATES, Appellant, that, Texas, Appellee. great ado The STATE of damage? deal of No. 60512. A: Yes.
Q: that, If hit somebody Texas, do Appeals of Court of Criminal you think it would have hurt them 2. Panel No. more than with your hand? 15, 1982. Dec. A: It probably would have fractured
them.”
Jan.
Rehearing Denied
Compare
Limuel v.
(Tex.Cr.App.1978).
We hold the evidence is sufficient to
support judge’s the trial finding appel
lant committed the offense attempt by
threatening the imminent infliction of seri
ous bodily injury on Bea. ground
This of error is overruled.
Appellant’s ground second of error
alleges the trial court erred in failing to
insure the reporter court made a statement
of facts of the arguments final on punish
ment.
We first note appellant does not contend
that he was deprived of an opportunity to
make argument trial court on the
issue of punishment; indeed, transcrip-
tion of the reporter’s court notes indicates
otherwise. Neither does appellant cite a
case punishment in which a new hearing
has prosecutorial been ordered due to argument
committed in the made to the judge,
trial sitting jury,4 without a we
venture to say that there is none.
In the event appellant lodged timely
specific objection any improper argument prosecutor which was adequate to
preserve the question for review by this
Court, we are satisfied the trial court disre-
garded the argument.
Under the presented, circumstances shown;
hold no reversible error
ground of error is overruled.
The judgment of conviction is affirmed. fact, arguments 4. In made to the “Motion for the “... and all final Court Reporter” and the State in Direct Court lowing request counsel for the defense contains the fol- styled arguments: the above and numbered cause.” final
The indictment in the case reveals the prosecution to have been based on the sin- gle allegation “on or about the 6 day October, [1977] ... did unlaw- intentionally and deliver a fully, knowingly HEROIN, substance, namely: controlled Yet, R.J. Mack.” the evidence offered among more than 500 transcribed reveals pages testimony argument, and prosecution’s proof conviction that delivery pink cap- mere of two Mack on agent sules to undercover narcotics would, not suffice. In- alleged the date stead, Mack was called to the stand Officer par- his detailing for the initial purpose operation be- ticipation “in an undercover August the end of and ginning about in late Novem- stretching on into sometime ber of ... 1977.” repeated objection, Over strenuous and permitted prosecutor trial court elicit the first minutes of trial to obli- “responsibilities Mack’s and gations ... with the undercover narcotics bureau,” traffic in the (“to drug infiltrate drug dealers City of Dallas to seek known upon the city perpetrated in the and crime “pur- County”); citizens of Dallas (“to seek operation, pose” of the undercover community to cut off some dealers in the Teter, Dallas, appellant. Ross for the main line so that some for drugs readily not be so available would Wade, and Wil- Henry Atty., Dist. Steve using drugs, and people that were Attys., Asst. Dist. ensky, Brady Sparks, the crimes that were possibly cut some of Dallas, Huttash, Atty., Robert State’s community”). La- being inflicted Austin, Walker, Attys., Alfred Asst. State’s James, ter, J.D. supervisor, Mack’s Officer for the State. vein; continue in this permitted ONION, P.J., Before and TOM G. DAVIS oper- the undercover “purpose” asked the CLINTON, JJ. ation, was “to make heroin replied James it prosecutor pushers.” cases on heroin OPINION “go “why” then asked the witness CLINTON, Judge. dealer,” to which pusher after the one, priority “It’s number replied, James for a conviction Appeal is taken from on for working to be drug drug abuse heroin; pun- jury assessed delivery impli- for the [sic], and also drugs itself years. ishment is twenty as other crimes such it has in cations We of error. grounds advances fourteen defense point At this burglaries1 and —.” in the agree there is reversible sustained, objection counsel’s and, case reverse. accordingly, throughout emphasis supplied cated. 1. All opinion otherwise indi- writer of unless
was instructed but witness having again identify a motion for new trial After as the he knew be “Tom person was denied. Immediately, prosecutor Thumb,” the asked wheth- prosecutor Mack continued: the appellant’s er he later learned name “Q: it to say going Would be fair Leroy Bates. On Mack’s affirmative after heroin pushers high has a very answer, asked whether the *3 priority in reducing crime?” “had to later this witness occasion confirm Appellant’s objection question this was to by photo- and name other identification overruled.2 graphs.” appellant’s objection After was Undercover officer Mack was also permit- overruled, asked, “was this a prosecutor the testify ted to objection, over that had he to photograph by your supervi- shown “personal knowledge” of heroin transac- objection sor James?” A defense was J.D. occurring locations, tions at two Dallas one again Leaving this line of testi- overruled. on Bickers Street and Beni- another on El moment, prosecutor for the the re- mony reported to.3 He he first met on appellant turned to it when James was on the put 15th September location, at the latter then stand: saw appellant again the place at same on James, I “Q: Officer take it that some- September 19th. additionally, But Mack prior time to this time knew the appellant met with “some six times” the name Defendant both his street Bickers address.4 “As a result of” con- his of Tom Thumb and also his true versation with on September Leroy name of Bates. 19th, Mack testified he thereafter was look- A: Yes. ing for appellant capacity in his “official as Were to confirm that with Q: you able an agent” undercover narcotics the identification records? “purpose” of making a heroin purchase Yes I A: was. from him. The six times other the witness Q: And were able to con- further met rehashed, with were all over firm that with a photograph objection, and the gave witness this time you obtained from identification date, each the day, time the of Bickers records? Street location and length the of time he was in appellant’s presence.5 A: Yes.”6 By grounds six, through appel- police 2. of error four in identification of [officer’s complains allowing court,]” lant prosecutor of the “promised” trial court’s the and the court he was not testimony implying to adduce he attempting “go to into” extraneous offenses. pusher” respon- “known a heroin and thus correctly Defense counsel observed that the burglary.” sible for “other crimes such as had not witness’ identification impeached. But the his been court overruled changed 3. Earlier Mack has described how he eliciting objection, again prosecutor’s the appearance dress to “infiltrate certain only going pledge prove that he was to one sale community.” the areas of Asked to tell the of the but would establish “the rest “type into, of environment” he went appellant.” met with times [Mack] responded: community trained officer “The drugs being granted continuing where the were sold.” At least Defense counsel managed jury twice he objection to tell the and a “full bill.” had, “majority people” of the aat location places” were, 4, weapons. 1, “some there 5. The dates were October October October Thus, by presentation 11, 12, 25,1977, the tone 6, of the of its case all October October October prosecution did the seek to taint prosecution later dates which alleged other than offense. prove appellant had delivered to Mack and for which was under indictment. presence jury, 4. Outside of the defense was, course, 6th October date objected pointing counsel out no there was alleged offense on trial. reason for the State to offer evidence of times number of oth- witness met presence jury, defense Outside attempt er than on October 6th “unless it’s an unsuccessfully argued the State’s tac- counsel try ... to to cause the to there believe that preju- an intentional to tics constituted effort than more one offense committed implemented in and were dice the defendant argued Defendant.” The “goes faith: validity evidence bad establish the 55-year-old appellant According appellant, took the he was stand instructed Townsend; to meet daily “Chip” in his own behalf. when He testified that he had did, give he Townsend would him some been in the “junking” pre- business for the capsules “stay and tell him to in this ceding years.7 According appellant, two house,” (Townsend) peo- that he would send September he needed money In the ple by.10 evening, appellant turned buy parts some auto he had located in any money remaining capsules over to Greenville and he believed could double his Townsend. he knew conceded money on. he went to an acquaintance, So pills “dope,” vehemently contained but Eugene “Chip” Townsend, for a loan. denied he knew it was heroin.11 He testi- it, Townsend said he did not have knew 6,1977, fied that on October one came someone else who would lend it to Mack, other than R.J. and at that time lant, and took him “to the house that gave capsules Mack two for $24.00. showed on one of the pictures,” “gam- *4 examination, prosecutor On cross elic- bling house” at the El Benito ad- Street appellant ited from the fact that he had appellant dress. Townsend introduced to a for three stayed approximately at the house man named “Black Tommy” appellant who longer, weeks or a little but did not know thought was named really Tommy Walk- many pills how he had sold “these people ers.8 Then, apparently response to.” to “Black Tommy” agreed to loan testimony lant’s that he did not know the if appellant agree pay to him $250.00 heroin, began was “dope” prosecutor within five days. $300.00 When asking him about had become when he went to parts, Greenville for the auto how- charged aware he was “the sale of ever, they had been sold to someone else. Appellant heroin.” testified that he knew So money pay used the to bills arrest, jail what he was in for after his and buy groceries.9 When the time came to that not indictment he did look at loan, repay went to Townsend right away. Appellant again served on him it; explain to he was repay unable to Town- he told the he did know what again send with, took him “Tommy.” then, “Tom- charged illustrative my” trial, became angry following and told he tenor of the entire tran- spired: killed people who pay failed to him his
money. .Oh, Finally, “Q: just got told did know? —You “Tommy” you know. through saying he had that didn’t “dope” “get some the latter could When did him, you— rid of” for going and said he was put Honor, object. appellant “in Your Chip.” Appellant [DEFENSE]: arguing He is with the witness. given go and told to rent the $150.00 Bickers, house on which he did. Honor— object, I Your [STATE]: testimony clearly po- judge regarding implies “This the admissi- cutor trial department already lice picture bility had an identification forms of Walker’s illness and death which shot, mug which could refer to a ground of error. the basis of twelfth concerning prior prior arrests or convictions. * * * previous That tied in with the testimo- his wife 9. had testified that ny purpose of the witnesses that the of their dependent had five children. operation purchases was to make heroin exactly from his words—known known — during the De- 10. Officer Mack was recalled dealers_” users or time, he acknowl- fense’s case in chief. At this edged complaint grounds This forms the basis of Eugene introduced Townsend had eight appeal. error seven and on anytime him he need- and told him that, according appellant, 7. Before he had around, dope (Townsend) ed and he was not years Grocery worked for five at a Tom Thumb go Bickers and Mack should to the house on Store, thus, his nickname. “Tom him. Thumb” would “take care of’ State, however, 8. The established that later confirmed Undercover Officer Mack Tommy Walkers had been a bedridden invalid word “heroin” was never used in the transac- years for several before his recent death. It tions. parte prose- an ex discussion between the (All talking citing Butler v. simultaneously) counsel contained (Tex.Cr.App.1974). 509 S.W.2d go THE COURT: Let’s ahead and an- position' on the judge’s As for the trial question. swer the matter, charge, was instruct- in his THE May say WITNESS: I some- defend- ed thing? of “offenses other than ant’s commission say any- may THE COURT: You not alleged against him in the in- the offense thing. Just answer the questions. case,” in this could be considered dictment Q [By As a of fact matter STATE]: “determining other than in purpose you received five copies of indict- motive, intent, identity or of the de- ments, you? didn’t fendant, the of- any, if in connection with object. To which we [DEFENSE]: fense, any, alleged against him in the if Q [By copies All those STATE]: case, in this ....”12 indictment indictments were for the of heroin sale generic princi is an established It ple proof prior specific evidence We (interposing) ob- [DEFENSE]: misconduct, similar happenings acts ject— extraneous transactions committed Q [By (interposing) As a STATE]: party probative ma is not of the contested fact, matter charged are trial, terial in the case there issues time with the sale of heroin generally fore inadmissible. See Sanders cases, are not? 108 (Tex.Cr.App.1980); 604 S.W.2d *5 To object, which we [DEFENSE]: State, (Tex.Cr. Murphy 587 v. S.W.2d 718 Your Honor. a App.1979) and cases cited there. In crimi THE COURT: Overruled. proceeding, the admis nal when State seeks Q Now, [By it get to STATE]: of sion an extraneous or similar transaction straight, didn’t think that was seri- by committed the accused which constitutes ous? offense, a introduction of criminal A: I thought Sure it serious.” that “extraneous is in offense” transaction herently prejudicial, since the accused has In grounds error, his second and third of against no notice he will be called to defend appellant complains of per- the trial court’s it, “propensity and to commit is his crimes” mitting the to State adduce evidence that the guilty to whether is of not material he had committed four other degree first which the specified charged conduct is felony offenses and presently under State, (Tex. Rubio v. 607 498 State. S.W.2d indictment for those offenses. Sanders, Cr.App.1980); Murphy, su supra; argues, citing authorities, numerous that pra, and cited cases there. this evidence probative any was not of issue But, Rubio, supra, raised at defense. as was observed in The retorts State (Concurring Opinion): extraneous 506 offenses —all of which were sales heroin committed within a as evidentiary principles, “[T]hese month of the primary offense —were ren- most, give must in circumstances some dered admissible on the issue of “knowl- way. consti- For extraneous transactions edge” after testified on direct ex- com- tuting offenses shown to have been amination that he selling cap- knew he was may mitted the accused13 become ad- “dope” sules of prosecu- knowledge showing by had no missible a proved by charge, lodged 12. To this heroin and the intent is not defense counsel following objection, extraneous in this case.” offensefs] was overruled: which “It is the contention of the that the Defense always required It is commission only basis for extraneous offenses be ad- clearly proved offense is the extraneous mitted, they all, if were at admissible perpetra- been its the accused shown have objections, were admitted over our Sanders, State, supra; Carrillo 591 tor. only question identity be of the (Tex.Cr.App.1979); Ransom v. 876 S.W.2d the Defendant and not to motive or intent. (Tex.Cr.App.1974); S.W.2d 810 see 503 delivery There is motive in involved (1961). also 23 T.J.2d Evidence § tion both that the transaction is relevant some heroin. Officer Simmons instead case; and, to a material in issue agreed buy gram gave $50.00 relevancy value of the evidence out- A Butler three bills. few moments $20.00 weighs inflammatory its or prejudicial later, went Simmons Butler’s vehicle potential. where he observed Butler hand $10.00 determining
In this evidentiary wrapped yellow Hayes, balance around a balloon to in a case established direct turn, evidence14 who in handed it to Simmons. After the court must consider whether the ma- rested, the defense called the co- State terial issue to which the extraneous con- defendant, Johnny Hayes, who testified contested, and, so, duct is relevant is if in Butler not at the time “was of the looking to the attributes of the extrane- knowledge had no transaction and ous offense as shown by the deter- sale.” He claimed Butler had arrived after mine whether its admission would be struck, bargain and when the her- assistance resolving to the Simmons, oin was handed to Butler was contested issue before it.” [emphasis that a transaction was unaware oc- original] and footnotes [citations omitted] curring presence. in his The witness also testified, apparently gratuitously, Applying this analysis to the facts of the case, instance was the time he had ever been instant we first observe that the issue sale of heroin. “identity” was never involved contest- Thus, ed by though material, him.15 examination, the elic- Thus on cross State extraneous offenses were not admissible objection Hayes’ admission ited without upon that uncontested Appellant’s issue. plea guilty that he had entered a to a however, defensive testimony, did raise con- sale, alleged to have been charge of heroin tested issues regarding his “motive” in sell- committed five weeks before approximately ing heroin to doing Mack —he claimed to be Again, the transaction on trial. without it, profit, not for but to avoid death objection, was asked whether he had Hayes hands of Tommy” “Black his “knowl- —and told at the time of the extra- Officer Foster edge” that the substance sold was heroin. offense, neous that he was out of question us, then, before is whether having just grams, sold ten and then had *6 fact that “charged at the taken Foster Butler’s house present time with the sale of in heroin bought officer where undercover cases,” prove tends to that he was gram Hayes from Butler. vehe- heroin not motivated aby death threat and knew in mently denied Butler’s involvement the capsules contained heroin at the time of transaction. Officer Foster extraneous So offense, commission of the primary rebuttal; in he by was called State thereby theory. rebuts defensive contacting Hayes day testified that persuaded We are not that it does. sale, prior Hayes advised him Butler, State, supra, cited illus- by grams he had sold ten of heroin and if trates well the case in which extraneous go some would have to Foster wanted offenses tend demonstrate the scienter of took Foster partner’s Hayes to “his house.” the accused that is in issue. Butler’s house where Foster give observed Butler “for his Butler, Hayes $500.00 In supra, the State’s evidence es- drugs.” share of the sale of Foster then co-defendant, tablished that Butler and his related, objec- B. over an “extraneous offense” Johnny Hayes, met undercover officers lot; tion, purchased grams Foster and in a that he also two parking Simmons But- ler asked Foster whether he to buy wanted heroin from Butler. testify
14. When the case is one of circumstantial
evi
15. While
did
that Officer Mack
dence,
court,
process applies
very
a different
in determin
looked
different
in
he never denied
State,
Mulchahey
ing
admissibility.
selling
capsules
v.
1977 at
See
him two
on October
(Tex.Cr.App.1978);
Etchiesen v.
S.W.2d 112
house.
the Bickers Street
1978);
(Tex.Cr.App.
In
offenses,
of the extraneous
the fact
extraneous
offense revealed
Butler to be Hayes’ “partner”
stood under
indictment
in the sale of
this,
heroin.
In
therefor,
view of
unpersuaded
Butler’s defense
we are
that their ad-
that he “didn’t know a
any
heroin transaction mission could have been of
assistance to
one,”
when he saw
was demonstratively
less
resolving
the material
issues
persuasive if
*7
Thus,
not
regarding
motive,
obliterated.
the
appellant’s
intent or
court correctly concluded the extraneous
guilty knowledge,
by
which were contested
transaction constituting a collateral sale of
compare
defensive testimony.
See and
heroin was “admissible to show
Sanders, supra.
[Butler’s]
intent and his guilty
knowledge,
[be-
therefore,
We hold
that because the col-
cause
tended to defeat and
discredit
it]
lateral matters foisted into the trial
defensive theory of lack of
knowl-
guilty
prosecutor were irrelevant
material
edge.”
By case, ap mony, admitting in the instant the trial court’s them con- pellant’s defense raised very narrow issue: stituted error.17 proscribed by (B) required culpability; Elements offenses the Con- » are, by trolled Substances Act virtue of V.T. * * * ever, alone, Code, 1.03(b), Penal And neither one nor the C.A. as in other can § same code; penal constitute an offenses defined offense. our at a mini- they always mum include: reject 17. We also the State’s additional conten- “(A) conduct; the forbidden testimony appeal appellant’s tion on direct
946 Moreover, talking review of the record counsel simultaneously] “[All whole, before us including as a evidence go “THE Let’s COURT: ahead and adduced, the punish- issues raised and the question. answer the assessed, ment there can be question May say “THE I WITNESS: some- that the error prejudicial committed was thing? year appellant no prior old who had “THE may COURT: You not say felony record. anything. questions. answer the Just Accordingly, judgment of conviction “Q. [By you As a matter fact State] is reversed and this cause is remanded to indictment, five copies received the trial court.18 you? didn’t object. To which we “[Defense]: DAVIS, Judge, TOM dissenting. G. “Q. [By All of those copies of State] Appeal is taken from a for conviction indictments were for the sale of her- delivery of heroin. After finding oin— guilty punishment assessed at 25 [Interposing) We ob- “[Defense]: years. majority The judgment reverses the ject— of conviction and remands this case to the “Q. [By (Interposing) As a mat- State] so, doing trial court for new trial. In fact, charged are you ter majority imper- found the trial court time the sale of heroin in missibly allowed the State to adduce evi- cases, are not? dence had committed object, To we which “[Defense]: degree four other felony first offenses and Your Honor. was presently under indictment for those “THE COURT: Overruled. majority offenses. following found the Now, “Q. [By get it State] questions posed the State to on straight, didn’t that was seri- you think cross-examination constitute error: ous? “Q. Oh, did just got know? —You I was serious.” thought Sure it “A. through saying didn’t know. When you— did It clear from the record that Honor, Your object. “[Defense]: only objection testimony lant’s to this was a He is arguing with the witness. objection preserve does not general which object, I your review. Honor— for Williams
“[State]: “implied ‘pills’ Indeed, stage during that he sold Mack chief. to Officer the case in occasion,” thus, more than one gave rendered the her- Officer Mack appellant’s the extraneous offenses and indict for was on trial oin transaction which ments therefor admissible. For it pages of tran- consumes no more three than permitted, objection, State that was over to set scription! global limits on the “context” of the offense on Plausibility further of the claim is strained trial, during adducing highly the case in chief repeatedly by the the disclaimer advanced prejudicial wholly irrelevant evidence re brief that was not referenced State’s garding “purpose” of Mack’s undercover implicated in matters adduced the collateral operation, pursuing “dope the “reason” during chief. It is the State’s case in pushers,” the “reason” Mack the Bick went to What, then, posit appropriate to the rhetorical: house, ers Street the “number Mack of times” interjecting purpose them was the State’s there, met with the fact that Mack into trial? through police identified records and short, argument the State’s comes full In police confirmed &at identification with other and reveals itself to be untenable. circle *8 State, Gaston Compare v. officers. S.W.2d 574 1978). (Tex.Cr.App. 120 appellant’s ground of also sustain 18. We would Thus, if argument by thirteen which an “stayed” behest at the house Bickers at the stage punishment encouraged prosecutor at the “Chip” loca- and never left Townsend the sentence to differentiate between “pills,” implied, money tion as the State length of time would assess contends, on more that he sold to Officer Mack penitentiary, actually spend in the lant would occasion, than one it was because of the presume will a retrial went meticulous manner which the State others, error, along be will avoided. setting erecting backdrop about
947 S.W.2d 183 (Tex.Cr.App.1977); Smith v.
State, 513 A (Tex.Cr.App.1974). S.W.2d
general objection to the admission of extra
neous offenses is insufficient to preserve e.g., McWherter See,
such error for review. State,
v.
Carr v. (Tex.Cr.App. S.W.2d 816 Williams v.
1980); supra; Smith v.
State, supra. judgment should be af
firmed.
I dissent.
Walter Mike Joe aka COLEMAN
Garon, Appellant, Texas, Appellee.
The STATE of
No. 61979. Texas,
Court of Appeals Criminal
En Banc.
Dec.