*1 RANKIN, Appellant, Carey James Texas, Appellee.
The STATE of
No. 01-92-00830-CR. Texas, Appeals (1st Dist.).
Houston 13, 1994.
Jan. Dissenting
Opinion from Denial Rehearing July En Banc
28, 1994. Burén, Shearer,
E. Scott J. Van Jr./R. Houston, appellant. for Holmes, Curry/Kim Whit- B. John Jr./Alan Harris, tington, appellee. for HUTSON-DUNN, DUGGAN Before HEDGES, JJ. ON MOTION
OPINION REHEARING FOR HUTSON-DUNN, Justice. rehearing, filed motion Appellant has grant. opinion issued which we withdrawn, 28,1993, is Court on October following in lieu issued earlier one. Carey
Appellant, James charged by one count of indictment with weighing substance possession of a controlled *2 grams. trial, jury Simpson less than 28 After a he As soon as Officer received this car, pled message by dispatch patrol was convicted and true two to enhance- radio to his punishment ment appellant began squirming kicking counts. The assessed and the at 25-years Simpson’s patrol confinement. car. back seat of Officer Simpson appellant Officer told to sit When 8, 1992, On March Officer K. Ma- William still, appellant attempt- that he was claimed lanson County Depart- of the Harris Sheriffs get ing position. in a more comfortable dispatched ment a family was answer dis- appellant police A at call. search the station turbance When Officer Malanson ar- did revealed that he not have a controlled apartment, rived the appellant at he heard person on substance his at that time. How- arguing apartment. and a woman inside the ever, under door, a search the back seat of Officer Officer Malanson knocked on the iden- himself, up Simpson’s patrol baggie car a that requested they tified turned open and appeared minutes, contained what to be a rock of door. After several Officer Malan- crack rock son cocaine. The of crack cocaine was apartment by appel- was admitted to the found the same side of the back that lant’s wife. seat appellant sitting had been on. apart- When Officer Malanson entered the Simpson Officer testified that he searched ment, glass he noticed broken and hole in shift, patrol began his car he his and when one of apartment. the walls in the Appel- there was no crack cocaine in the vehicle at appeared timid, lant’s wife nervous and and Simpson that tíme. Officer that also testified Officer Malanson noticed that she had a knot no one had been in the back patrol seat on her appellant head. She stated that had day except car appellant. on that pushed her into wall. Appellant denied that the crack cocaine Officer Malanson testified that enter- found the back unit his. ing apartment, performed pat he down However, appellant admitted that on the However, weapons appellant. search for morning purchased of the incident he had appellant and his wife that testified Officer cocaine, worth dollars of crack but testified performed Malanson a full appel- search of had he thrown down the sink because lant turning pockets included inside problem. he realized he had a cocaine He out. argument testified that with wife During Officer investigation, Malanson’s concerned the 30 dollars that he owed for appellant told the officer that had a he crack purchased. crack that he had problem. cocaine Appellant and his wife had took support wife the stand in apparently arguing been over fact that he of her husband. She testified she was pay needed 30 dollars to for some crack standing right appellant by when he threw purchased. cocaine he had the crack down sink. cocaine Appellant placed under arrest for as- point In appellant his first sault. His hands were handcuffed behind his contends that the trial court erred back, over he placed and was back Offi- objection ruling appellant’s to the State’s Simpson’s patrol cer unit transported and arguments closing during guilt/innocence police Simpson station. While Officer phase of the trial: station, transported appellant police to the (Prosecutor) apartment Well, Officer Malanson you remained at the what if choose and During deputies? you interviewed wife. to believe the What if course of the conversation with choose to believe Mr. Rankin? That wife, See, okay, Officer Malanson formed the prove too. don’t have to appellant may have day happened. been in time don’t have of a controlled prove substance. Officer Malanson where were when Simpson, contacted Officer you charge, who was still en the coke. If will all I read the station, police 8th, route requested have to do is that on March Simpson that Officer appellant Carey search James in Harris crack County, Texas, cocaine. intentionally know- did or, substance, hey, already he had thrown it down
ingly possess a
name-
controlled
yesterday—
sink as he testified
ly
in an amount
less than 28
weight,
including
grams
aggregate
(The Court)
up.
Time is
and dilutants.
adulterants
(Prosecutor)
*3
you find
de-
again
—then
(The Court) Two minutes.
guilty.
simple.
It’s that
fendant
(Prosecutor)
gentlemen, he
Ladies and
Counsel)
Honor,
Your
once
(Appellant’s
up
or
in
got
testified that he
7:00
8:00
object
again
going
improp-
I am
for the
morning, went to the friend’s house and
jury argument,
er
record.
it,
bought
bought 30 dollars’
smoked —
(The Court) Very
That is overruled.
well.
worth,
brought
part of it
the rest
smoked
Bailiff,
out, please.
Mr.
take them
home,
fight
trying
it
had
of
a
with
wife
argument by
that this
Appellant contends
then, well,
beg
off of her. And
$30
improper
because it misstates
State was
story is
their
threw it
side that
Appellant
further contends that
law.
hap-
of
He testified that all
down.
argument contributed to
convic-
State’s
8th,
pened
He admitted
on March
1992.
tion, and the conviction should be reversed
day.
He
that he had the crack on
Tex.R.App.P. 81(b)(2).
according to
all of the elements.
admitted
Counsel)
(Appellant’s
Objection, Your
jury argument
falls into
Proper
That is
of the law.
Honor.
a misstatement
1)
categories:
four
a summation of the evi
allegation
The
would
2)
dence;
from
reasonable deductions drawn
the officer set
have to be as of the time
3)
evidence;
arguments
response
a
to the
report,
a previous
in
not
forth
the offense
4)
counsel;
plea
a
for law
opposing
or
subject
possession; and that is not the
State,
Harris v.
827 S.W.2d
enforcement.
the indictment.
—
949,
denied,
-,
963,
113
cert.
U.S.
Court)
(The
overruled.
That is
(1992).
381,
A mis
17 903, (Tex.Crim.App.1985); point of error is 696 S.W.2d 906 first sustained. (Tex. State, 388, 719 Drew S.W.2d 391 Because we have sustained first 1986), aff'd, App. Dist.] 777 [1st — Houston point of we need address his sec- 74 (Tex.Crim.App.1989). S.W.2d Such an point ond of error. election, required requested, if must be made before the of the State’s case-in- close judgment court of the trial is re- State, 467, chief. Crosslin v. 90 Tex.Crim. versed, and remanded. the case is 905, (App.1921); S.W. O’Neal v. 772 (Tex.Crim.App. DUGGAN, Justice, dissenting. 1988). majority’s dissent from banc the en re- *4 However, in this case motion for elec- grant fusal to motion the for rehear- State’s required tion was because the State intro- ing. grant I motion would the to rehear en only possession, evidence of act of duced one banc, opinion panel upon our issued withdraw i.e., the cocaine found in the rear of the appellant’s rehearing, motion and affirm patrol appellant car. When took the stand judgment. original pan- the trial court’s The possessing and admitted cocaine in earlier el, part, analysis of which I erred in the morning, the an act that would also fit within appellant’s in our on motion for re- indictment, the terms of the he was admit- hearing, in appellant’s which we reversed ting that he an committed extraneous of- conviction. fense; admitting he was not that he commits charged proved up by ted the offense and the panel opinion The on motion for Appellant may State. not be convicted for rehearing correctly acknowledges appel- that committing an extraneous offense. There- lant was to required not demand that the fore, we improper hold that it was for the make an election because State “the State argue to that appellant State could be con- only posses- introduced one act evidence of solely victed on the basis his admission sion, i.e., the cocaine found the rear of the possessed that he cocaine earlier patrol car.” Election was not involved. morning, which he later flushed down the case-in-chief, When the its ap- State rested sink. pellant was not without notice of what act he During pre- was called to defend. the Having closing argu decided that the case, appellant sentation of the defense’s by ment made the State was we must placed judicial jury before the confes- now decide whether defendant was harmed separate possession the fact of act sion by such required error. We are to reverse all one that met the elements of judgment, the unless the error made no con the requiring indictment. The basis for tribution conviction. Tex. R.App.P. simply 81(b)(2). present; State’s election the presented only State one of the two fact support In of his contention that the scenarios shown. argument State’s contributed to his convic- tion, appellant points during out that deliber- panel opinion rehearing pro- The then ation, jury stated, sent out a note which erroneously, ceeds to I believe —that state — (sic) our “Is decision based on “[wjhen appellant took stand and admit- just of the cocaine from the car or possessing earlier [on ted cocaine the same day?” he cocaine sometime that day], an act also that would fit within the judge responded by The trial referring the indictment, admitting terms of the he was jury charge. the court’s The offense; that he committed an extraneous merely set out the elements the offense. admitting was not he committed charged up by light jury’s proved In and the State.” question during of the delib- offense added.) (Emphasis quoted proper application erations about the The and italicized of the (1) law, point up majority’s we cannot two conclude that words errors: misstate- rejecting by appellant’s during closing ment the law the the offense proved State argument jurors’ judicial by labelling had no effect on deci- confession as “extrane- ous,” contrary sion convict. to the well established definí- (2) term; assuming only App.1983); Benson v. tion of that and (Tex.Crim.App.1982). an indict- 714-15 Whether State’s evidence allowed jury testimony or chose to believe the State’s ment. confession, judicial either the defendant’s offense “extraneous” every that met version constituted evidence judi- Appellant argues in his brief that indict element of the offense set out in the prior uncharged cial to “a confession was charge. ment and uncharged of- possession,” or “an collateral prosecutor did not would hold panel opinion’s fense.” The characterization closing argument by inviting err defense-proved possession as an “ex- of the defen- to consider both State’s erroneously accepts traneous offense” evidence, of the to convict dant’s versions argument. under either. judicial posses confession grant for en would the State’s motion not an of sion of cocaine was extraneous hearing, panel’s opinion banc set aside fense, interpreted. This the term is as judg- rehearing, and affirm the trial court’s previously accepted recognized has defi ment. “any as nition of an “extraneous offense” act *5 misconduct, resulting prosecu of whether JJ., MIRABAL, WILSON, HEDGES, not, charging is tion or not shown in the join in the dissent. State, papers.” McDonald v. 692 S.W.2d 169, 1985, (T ex.App.—Houston [1st Dist.] 173 'd) added); State, pet. (emphasis v. ref Gomez 113, 114 (Tex.App. Corpus
626 S.W.2d — 'd); State, 1981, pet. Shugart v. Christi ref 288, (Tex.App.
796 294 S.W.2d — Beaumont ref'd). 1990, posses Clearly, the of pet. act appellant judicially
sion cocaine to which precisely is described indict confessed GREATSINGER, Stephen Appellant, S. ment; charging “shown in the is therefore v. papers;” consequently an extrane and is ous offense. Texas, Appellee. The STATE What evidence suffices an indict- No. 01-93-00344-CR. allegations? ment’s Texas, Appeals of opinion’s panel second erroneous basis Dist.). (1st Houston judicial striking down confes- improper proof under the indictment sion as 3, March 1994. judicial confession was not State,” “proved up by but the defense. sufficiency know of limitation proof
evidence that restricts of the elements one side or the other.
of an indictment to routinely
Jurors are instructed that are judges proved, of the facts exclusive witnesses, weight
credibility and the given They are not
be to the evidence. any proof
instructed that element must party
come from one or other.
Further, sufficiency it is settled that well measured
of the evidence is State, jury. 111 given Boozer 608, (Tex.Crim.App.1984); Orte
S.W.2d (Tex.Crim.
ga v.