*1 DUGGAN, HOYT, Before LEVY and JJ. Texas, Appellee. The STATE OPINION
No. 01-85-0829-CR. Texas, Appeals of Court DUGGAN, Justice. Dist.). (1st Houston guilty of the of- found 12, 1986. June vehicle of value fense theft of a motor $20,000,
of over found paragraph of indictment enhancement true, punishment at to be and assessed *2 $1,000 eight years confinement MS. prosecutor]: fine. HERASIMCHUK [the Object Totally to that. ap- He asserts three of error on irrelevant. peal. THE COURT: Sustained. Molina, Q: you Mr. work on all cars Appellant urges in his first time, right?
error that the trial court committed reversi- Yeah, A: but— by failing ble error to allow defense coun- Q: car, good You know a car and fully to a bad sel cross-examine the State’s wit- right? nesses, thereby violating his constitutional
right against to confrontation of witnesses A: Yes.
him. Q: You know if a car is worth much money money, little right? or A 1973 Chevrolet Suburban truck owned A: Yeah. by repairs Victor Boulas was taken for to Q: truck, Boulas’ is it worth much mon- Shop, by Molina’sRadiator owned Ladiasla- ey money? little Later, do Molina reported Molina. object MS. I have police May
truck to as stolen HERASIMCHUK: on 1985. to— May appellant, On a former em- Molina,
ployee of was arrested Galveston THE COURT: Sustained. wrecking after the truck. A: Well— THE Just a COURT: second. Although appellant had worked for Moli- MR. I attempting TATE: am to establish theft, day na until the and had what the value In truck was. gone earlier with him to pick up the truck language problem, view of the I think repairs, from Boulas for the presented only way get that’s the I him can an alibi defense in which he testified that question. answer the If he knows what he had borrowed person the truck from a experi- the value of the from truck is his Mark, picked named who had up him when industry, ence I think that— hitchhiking. he was He testified that he visiting MS. This is argument was his HERASIMCHUK: ex-wife son in Lufkin jury. theft, on the day of got and that he by also hitchhiking. there MR. TATE: competent testify He is about this. charging appellant indictment with THE That’s COURT: sustained. alleged theft of a motor vehicle in pertinent MR. TATE: He works on cars. He part that the truck had a value of over $750 buy doesn’t them and sell them. $20,000; accordingly, the actual value of the truck the time of the theft Appellant contends that the trial court was an essential element the State’s by refusing committed reversible error case. let him cross-examine Molina as to the fair market value the truck after ex- Appellant argues attorney that his change. prevented cross-examining from one witness, Molina, State’s about the vehicle’s Appellant also contests the court’s deci- fully cross-examining value and from Bou- sion to cut off cross-examination of las, owner, regarding truck’s owner, the ve- the truck’s attempt- when hicle’s attorney value. elicited ed to elicit from the witness the basis for on cross-examination of personal Molina that his evaluation of the vehicle’s rusted, extensively truck might market value. Direct examination require repairs prosecutor as much worth of was as follows: damage. Appellant’s for rust attorney, Q you Do [MS. HERASIMCHUK]: Tate, Mr. Occie later asked: approximate know the value of that truck? Q: Molina, MR. TATE: Mr. how much
money you pay for would Mr. Boulas’ Value me? [MR. BOULAS]: truck? How $3000. about In
Q: you summary, testimony How do know it was worth as to physical $3000? condition of the truck showed was, 13-year-old according thé 12 to vehicle put spend A: her. new What Molina, transmission, tires, extremely rusty engine, repairman new new rust); want (“falling apart” therefore me from that Galves- $3000. *3 police ton officer there was “con- testified Q: anyone to buy your Had offered truck, damage” the which siderable to truck? during have done either before or the been A: ma’am. Yes resulting appellant’s in Galveston accident buy it A: When was someone offered to arrest; and that the vehicle at least your truck? (“it hand-painted partially factory- wasn’t May. A: In baked”). value, the As to market the own- Q: they pay? much offer How did to er, Boulas, $4,500 having paid testified to $3,000. A: having for the 1973 vehicle in and to Q: you going to sell the truck to Were later, years May in received an offer ten person? that theft, same as the from a the month the al- A: Yes Ma’am. We made deal buyer $3,000, purchase to the truck for ready. already.” which he “made deal $3,000 then, Q: is that a value Is that of to The State had the burden as over $750? only of The evi- market value the truck. A: Yes ma’am. showing the in the record vehicle’s dence Q: $20,000? it under And is $750, to be in excess of such market value A: Yes ma’am. a primary as offense third-de- to make cross-examination, appellant’s On attor- misdemeanor, gree felony rather than ney explore for Boulas’ sought to the basis subjective opinion testimony of the statement of value. owner, jury’s Boulas. vehicle’s Mr. The Q: you buy truck when it was Did that adequacy as concern of such obvious new? though proof of legally minimal sufficient bought my A: in No. it from brother of the truck was shown market value 1975? [sic] during request, deliberations on written Q: pay much did for the truck you How innocence, guide “NADA to guilt for a or in 1975? cars,” denied. used which the court I pay know. much A: I don’t How jury correctly charge to the The court’s my problem anybody. of problem, not the property,” value of defined “fair market Maybe give him free. me offense of theft set out the lesser included Q: give you it free? Did worth property $200 of over my brother. A: is between me and It $750, forms an- provided separate of buy from Anybody need not know. to find the required swer which him. all, if of of appellant guilty, either theft question. Q: You have answer “over of the value of $750 a truck you pay him for it? How much did $20,000, charged in indict- as under A: 45 hundred. ment,” of or theft a truck value Q: ago? years was 10 And that $750.” “over under A: Yeah. Boulas, testified, Mr. Q: you Appellant When have been al should $3,000, being truck to the value in examination of lowed latitude broad necessarily the market value that is not (particularly whose both witnesses truck? that testimony evasiveness and quoted reflects The of a attorney). owner appellant’s MS. HERASIMCHUK: How hostility testify to its value. piece property may ever, of error is appellant's claim based evidence, exception and a bill excluded THE Sustained. COURT: perfected should have been show what and third are second testimony Boulas both Molina and overruled. been if had would have been al- is affirmed. Nothing lowed to their elicit answers. judge
the record indicates the trial HOYT, JJ., participating. LEVY and also attorney appellant’s refused to allow HOYT, J., dissenting. of exceptions make a bill attor- sought to ney enter such a bill of record. HOYT, Justice, dissenting. As stated Easterling v. I respectfully dissent two reasons. (Tex.Crim.App.1986): S.W.2d 569 instance, In pre- the first trial court ... When defendant contends that his objective vented cross-examination *4 cross-examination of a witness has been value, question State’s on the of witnesses limited, unduly nothing preserved is for necessary a element of the for State by review unless the record shows bill of appellant objected its carry burden. The exception questions or otherwise what he preserved and the error. would adhere to propound wanted to and the he answers holding of line cases that where the expected Nothing been therefrom. has right compromised, of confrontation is no preserved for review. Passmore v. showing required. of harm is Davis v. State, 682 (Tex.Cr.App.1981); 617 S.W.2d 308, Alaska, 1105, 94 S.Ct. 39 (Tex. State, Barnett 615 v. S.W.2d 220 (1974); State, Zuniga L.Ed. 347 v. 664 Crim.App.1981). S.W.2d 366 (Tex.App. Corpus Christi — several, 1983, pet.).
While the record
though
shows
not
no
all,
necessarily
questions
of
appellant’s
the
majority
pre-
The
holds that in order to
sought
counsel
to ask of the witnesses
error,
appellant
serve
the
must show bill
Molina and
any
fails
show
exception
questions
of
what
he wanted to
answers
Accordingly,
that were excluded.
propound
expected
and the answers
there-
nothing
preserved
is
for review.
They
from.
overlook the fact
the
already
questions
record
shows what
the
first
of error
over-
is
appellant
asked
wanted
and what answers
ruled.
therefore,
anticipated;
excep-
no
of
bill
Appellant
remaining
asserts in his two
Furthermore,
necessary.
tion was
estab-
grounds of error that Tex.Code Crim.Proc.
lishing the value of the vehicle was an
37.07,
(Vernon
Ann. art.
4
Supp.1986),
sec.
of
essential element
the State’s case.
If
requiring
give
the court to
instruc-
complainant’s testimony
cannot stand
concerning
tions
eligibility
a defendant’s
cross-examination,
test
was there a
parole
good
receipt
and
cred-
conduct
case in the first instance?
it, is unconstitutional both
it is a
because
Next,
challenges
the constitu-
violation of the separation
powers
re-
37.07,
4,
tionality of article
section
Tex.
quirement
vague.
and because it is
(Vernon 1986),
Code Crim.P.
which makes
mandatory jury
a
parole
instruction on
outset, however,
We note
good
credits for
conduct time in certain
that the
objection
record reflects no trial
cases.
portion
charge
urged
as
here
appeal.
basis for
constitutionality
37.07(4)requires
pun-
Article
that where
appeal
statute
not be raised on
unless
jury,
charge
ishment
must
the issue was first
raised
the trial court.
language
include
set
out
the statute
State,
653,
James v.
635 S.W.2d
655-656
possibilities
parole
relative
1982,
(Tex.App.
Worth
no
good
well as
conduct time credits. The
[2nd Dist.]
—Fort
pet.);
State,
Chaires v.
822 ques should reach the would reverse and re-
Generally, courts constitutionality of a statute cause for a new trial with tion of the mand the di- ground. another only if it cannot reverse on rections to exclude the instructions. State, 172, (Tex. v. 658 S.W.2d 174 Smith in his re
Cr.App.1983). Appellant asks
maining grounds of error that two 37.07(4) Tex.Gode
court find that article
Crim.App.1983). Appellant in his asks re- judicial pow and executive
invasion of the
er, unconstitutionally vague. and that it is
To show a statute to be unconstitutional vague ambiguous, appellant must ly and Terese Mariano ESCALONA Escalona, Appellants, persons demonstrate that of common intel ligence necessarily guess at would meaning application. differ as to its COMBS, Appellee. John W. Jacksonville, 405 Papachristou City 843, 156, 162, 31 L.Ed.2d U.S. 92 S.Ct. No. 01-85-01051-CV. (1972); Aheard v. S.W.2d Texas, Appeals Court (Tex.Crim.App.1979). statute (1st Dist.). Houston *5 application violates vague that is so that law is process the first essential due June 1986. fundamentally Connally defective. See Co.,
General Construction
(1926);
more v.
App.1976); Baker 478 S.W.2d
(Tex.Crim.App.1972);
parte Chemosky,
Ex
(1949).
52,
153 Tex.Crim. necessary pre
In this instance it is not by argument or
serve a fundamental error the error
objection to the trial court and appeal. be first raised on reading reveals careful statute ambiguous hopelessly due to
drafting errors. para- tracks charge given 37.07(4)(a),(b) (c). and Those
graphs from article 42.-
sections are cross-referenced to (a)(2). However, 3f(a)(l) those and
12 sec. 42.12 not contain the
sections of article do 37.07(4)(b) to in matter referred
substantive (c). (2) per- 3g(a)(l) and Section (c) material har-
haps 3g(b) and contain anticipated on
mony should be with what (b) (c). 37.07(4)(a),
reading drafting defects
I would hold that the sufficiently ambiguous persons
are required intelligence would be
common meaning and intent of the
guess at the opinion differ in their
legislature and could proper application.
as to the statute’s