WENFORD LEE FLETCHER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued November 28, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00386-CR
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WENFORD LEE FLETCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-52844-MV
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OPINION
Before Chief Justice Thomas and Justices O'Neill and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Wenford Lee Fletcher pleaded not guilty before a jury to the offense of unlawful possession of cocaine in an amount more than one but less than four grams.   See Footnote 2  Following a trial, appellant was found guilty by the jury. Appellant elected to have the trial court assess his punishment; the trial court assessed appellant's punishment at ten years' imprisonment.
        Appellant presents two issues on appeal: whether the trial court erred in failing to conduct a hearing on, and by denying, his pretrial motion to prohibit the use of prior felony convictions to impeach him as a witness. We affirm.
Procedural Background
 
        On February 13, 2006, pursuant to article 37.07 of the Texas Code of Criminal Procedure and rule 404(b) of the Texas Rules of Evidence, the State gave notice of five extraneous offenses: State of Texas vs. Wenford Fletcher, F-93-618-80, Aggravated Robbery, Deadly Weapon, Dallas County, Texas, October 13, 1993; State of Texas vs. Wenford L. Fletcher, F-92-737-11, Robbery, Dallas County, Texas, October 15, 1993; State of Texas vs. Wenford L. Fletcher, F-92-737-12, Possession of a Controlled Substance, Dallas County, Texas, October 15, 1993;State of Texas vs. Wenford Lee Fletcher, F-05-528-81, Criminal Trespass of a Building, Dallas County, Texas, April 11, 2005; State of Texas v. Wenford L. Fletcher, F-92-667-66, Criminal Trespass, Dallas County, Texas, February 3, 1993.
        Two weeks later, appellant filed a multi-page document entitled “Defendant's Election and Omnibus Pre-Trial Motions.” In paragraph 18 of that document, appellant moved the court to allow him to testify at the guilt/innocence stage of trial free from impeachment by any or all of his prior convictions, as well as any extraneous offenses the State had given notice of intent to use for such purposes. Citing Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992), appellant also requested a hearing outside the jury's presence on the matter.
Factual Background
 
        We briefly set out the facts. Dallas police officer Tom Schwend, a six-year veteran of the Dallas police department, was on patrol when an unidentified citizen told him a “heavy-set black male” was riding around on a bicycle in an Oak Cliff neighborhood selling narcotics. A day or so later, Schwend saw a man fitting that description riding a bicycle in a high drug area without a helmet. That man was later identified as appellant.   See Footnote 3  Schwend and his partner, Daniel Foster, stopped and detained appellant for not wearing a helmet.   See Footnote 4  Both officers began patting down appellant. Appellant was “extremely nervous and shaking.” During the pat-down Foster felt what he believed to be crack cocaine in a pouch on appellant's chest. At that time, appellant “pushed off and began running away.”   See Footnote 5  Schwend chased appellant on foot; Foster followed in the squad car. With Schwend two or three feet behind appellant yelling for him to stop running, appellant reached into his right-hand pocket and began throwing out small plastic ziplock baggies that appeared to contain a white rock-like substance. Appellant went into an alley; there, he took off the pouch he had around his neck and threw it over a fence. Foster cut appellant off with the squad car, and the officers engaged appellant. Not saying anything, appellant walked toward Schwend, with his fists raised in an aggressive manner. Schwend ordered appellant on the ground with his hands behind his back; appellant did not comply. Schwend deployed a Taser. The first shot misfired. Appellant continued toward Schwend. Schwend fired the Taser a second time. The second shot hit appellant with a full current. Appellant fell to the ground, and the officers handcuffed him. No drugs were found on appellant.
        Pursuant to police department policy, a supervisor and the fire department came to the scene.   See Footnote 6  Appellant was checked and everything was “okay.” Schwend retrieved the baggies abandoned by appellant: nine green ziplock baggies and six clear ziplock baggies. Foster retrieved the red pouch appellant threw over the fence.   See Footnote 7  Appellant was taken to jail where he was checked by a nurse and determined to be without injury.
        Appellant testified at trial. Appellant told the jury he was single, 38 years old, had a GED, and worked as a painter.   See Footnote 8  Prefacing with the statement “we're not trying to hide anything,” defense counsel then asked appellant about his prior convictions. Appellant admitted he had prior convictions for aggravated robbery, robbery, and possession of a controlled substance “in the early 90's.”
        Appellant testified that on May 19, 2005, about 5:30 p. m. he was in Oak Cliff on a bicycle when he came into contact with two police officers. Appellant stated the officers stopped him twice on that date. The stops were about two blocks and ten minutes apart. The first time appellant was stopped, the officers asked him about a “dude” who sold drugs up there. Appellant told the police he did not know him and, if he did, he would not tell them. Schwend asked appellant for identification and appellant showed Schwend a “TDC card.” Appellant explained that a “TDC card” was a prison identification card. Appellant talked to the officers about five or six minutes. Appellant did not have a helmet on at that time, but the officers did not say anything to him about not having one. At the officer's request, appellant got off the bicycle. While patting appellant down, the officers asked him if he had a weapon or drugs on him. Appellant replied he did not.
        The second time appellant was stopped by the police, he had a red pouch, which he had found on the street after the officers stopped him the first time. When appellant found the pouch, it had a bag of marijuana in it. Appellant put the pouch around his neck and continued on up the street. When the officers stopped him the second time, appellant got off the bicycle, put his hands on the car and complied with letting the officers pat him down. The officers did not tell him they were looking for a drug dealer on a bicycle. Schwend told appellant “that a crackhead had told them that a black guy was up there selling crack in the area.” The officers took everything out of appellant's pockets and put it on the trunk of the car. When Foster grabbed the pouch and asked appellant what was in it, appellant ran because he knew he had just got out of prison and he didn't want to go back. When appellant ran, he left the items there. Appellant also later testified he threw the pouch over a wooden gate of the first house after he entered the alley. Appellant did not have any packets of cocaine on him and he did not throw any away. After appellant threw the pouch he ran another eight or nine yards before he stopped. Appellant testified Foster hit him with the front fender of his squad car. Schwend told him to get on the ground. When appellant raised his hands to do so, Schwend hit him twice with a Taser. The second time appellant fell to the ground. He did not approach the officer with his fists raised. Appellant admitted at trial he did not have any injuries when he was hit with the squad car. Appellant admitted he had the marijuana in the pouch the second time he was stopped, but denied he had any crack cocaine or threw anything from his pockets.
        On cross-examination, appellant admitted that in October of 1993 he was convicted of aggravated robbery, robbery, and possession of cocaine under 28 grams. He also admitted at the time of his arrest and at the time of trial he was still on parole.
        After the jury found appellant guilty, appellant waived reading of the second paragraph of the indictment and pleaded true to the allegations contained therein. Penitentiary packets of his prior convictions were admitted into evidence without objection. The trial court found the second paragraph true and assessed appellant's punishment at ten years' imprisonment in the Texas Department of Corrections. This appeal followed.
Appeal
 
        On appeal appellant contends the trial court erred in refusing to have a hearing on, and in denying, his motion to testify free of impeachment under the doctrine of Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1993). Appellant contends at least one of the prior convictions may not have been admissible under Theus and that a hearing would have resulted in the exclusion of one or more of the prior convictions.
        Appellant recognizes courts have held that the preemptive introduction of prior convictions during a defendant's direct examination results in a waiver of the right to complain on appeal. See Gaffney v. State, 940 S.W.2d 682 (Tex. App.-Texarkana 1996, pet. ref'd); see also Ohler v. United States, 529 U.S. 753 (2000). Appellant suggests, however, that such waiver rule should not apply under the circumstances in this case, but, rather, that the “meet or beat” exception to that general rule should apply. See Sweeten v. State, 693 S.W.2d 454 (Tex. Crim. App. 1985); Alvarez v. State, 511 S.W.2d 493 (Tex. Crim. App. 1974). Citing Phillips v. State, 312 S.W.2d 644 (Tex. Crim. App. 1958), appellant argues an accused is entitled to “minimize the damage” of inadmissible evidence without waiving error. Finally, appellant contends application of the Theus factors would have disallowed the prior conviction evidence.
        The State responds appellant failed to preserve for review error in each issue. Alternatively, the State argues error, if any, was harmless.
        As required by Theus, appellant did request a hearing in paragraph 18 of his written pretrial motion. However, the record reflects the following exchange later occurred just prior to voir dire being conducted:
        THE COURT: Okay. Anything we need to take up on the record before the jury gets here?         [DEFENSE COUNSEL]: Off the record.
        (Discussions off the record).
        [DEFENSE COUNSEL]: Let's put this on the record. The State and I have gone over the defendant's motions, and we've handed a copy of that to the Judge, where we've agreed on all the motions except for - except for No. 18, impeachment of the defendant. That's the only one we need the Court to rule on, the rest are all agreed to.
        THE COURT: That's denied. Is that it?
        [DEFENSE COUNSEL]: Yes, sir.
        Appellant's motion requested two things: a hearing on the motion and to be allowed to testify free from impeachment by any of the prior convictions listed in the State's notice of intent. As set out above, appellant requested the trial court to rule on his motion contained in paragraph 18, and more specifically, “impeachment of the defendant.” Appellant did not orally object to the lack of a hearing, either before or after the trial court denied his motion.
        In order to preserve an issue for appellate review, an appellant must make a timely and specific objection. Tex. R. App. P. 33.1 (Vernon 2003). The purpose is to allow a trial court to correct its error, if any. See Janecka v. State, 823 S.W.2d 232, 243 (Tex. Crim. App. 1992). Although appellant's written pretrial motion contained a request for a hearing, it is not sufficient to preserve error for failure to conduct a hearing, in light of the later exchange set out above and the duplicity of appellant's request made in one paragraph of an omnibus motion. Moreover, without speculating as the State does, on whether the “off the record” discussion was tantamount to an informal Theus hearing, we do note that only three of the five prior convictions set out in the State's notice of intent were introduced during the guilt/innocence phase of trial. Two were not admitted. Issue one has not been preserved for our review. Moreover, should it be deemed to have been preserved, no harm is shown on the record before us. See Tex. R. App. P. 44.1(b) (Vernon 2003).
        In issue two, appellant complains the trial court erred in admitting the prior convictions at guilt/innocence because their probative value did not substantially outweigh their prejudicial value. The State responds appellant failed to preserve such claimed error and, alternatively, the trial court did not err in allowing the prior convictions for impeachment purposes. The State argues the importance of appellant's credibility was escalated because he was the sole witness at guilt/innocence; therefore, the State's need to impeach, likewise, escalated. The State argues appellant's prior convictions were properly admitted.
Analysis
 
        As appellant recognizes, generally, a complaint about improperly admitted evidence is waived if the same evidence is introduced by the defendant. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993)(op.on reh'g). However, as appellant further recognizes, an exception to this general applies when a defendant introduces evidence in an effort to meet, rebut, destroy, deny, or explain evidence that already has been improperly admitted. Id. (emphasis added). Appellant argues the exception, not the general rule, should apply here.
        It is true the trial court had, in effect, told the State by its ruling on appellant's motion that if appellant did testify, the prosecutor could cross-examine him about, at least, some of his prior convictions. Appellant argues that because of the trial court's ruling, he had no choice but to introduce the evidence during his direct examination to “minimize the damage.” We disagree.
        The facts do not bring appellant within the exception. Here, appellant made a considered choice. He introduced his prior convictions preemptively during his direct examination. At that point, there had not been any improperly admitted evidence which appellant was seeking to “meet or beat.” Appellant had two choices: not to testify, in which event the jury would not have learned of his prior convictions, or wait to see if the State did, in fact, introduce the prior convictions during its cross-examination and attempt to mitigate such evidence on redirect examination. Appellant did neither, choosing instead to make a preemptive strike. By doing so, appellant waived evidentiary error. See Rogers, 853 S.W.2d at 35.
        Because nothing is presented for our review, we resolve appellant's second issue against him without reaching the merits of whether the trial court properly allowed the admission of appellant's prior convictions. We affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
060386F.U05
 
Footnote 1         The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2         A second paragraph of the indictment alleged a prior conviction of aggravated robbery as an enhancement of punishment. Appellant later pleaded true to the allegations in the enhancement paragraph.
Footnote 3         Appellant's book-in sheet showed appellant was 5'11" and weighed 225 pounds.
Footnote 4         Schwend testified such conduct was a violation of a Dallas City Ordinance.
Footnote 5         Schwend explained that “pushing off” meant he pushed off the squad car.
Footnote 6         A field test of the drugs by the supervisor was positive for crack cocaine.
Footnote 7         Chemical analysis of the contents of the nine green baggies contained 1.38 grams of cocaine, and including adulterants and dilutants, 1.8 grams; contents of the five clear baggies contained 1.5 grams of cocaine, and including adulterants and dilutants, 2 grams-for a total of 3.8 grams. The evidence and the chemist's report were admitted at trial without objection.
Footnote 8         Appellant acknowledged that at the time of his arrest he said he did not have a job because it was not a permanent job.