Martin, Roderick Wayland v. The State of Texas--Appeal from 21st District Court of Washington County

Affirmed and Memorandum Opinion filed March 24, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00933-CR

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RODERICK WAYLAND MARTIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 13,783

M E M O R A N D U M O P I N I O N

Appellant Roderick Wayland Martin appeals from his conviction for the felony offense of delivery of a controlled substance. In three points of error, appellant argues that (1) the trial court improperly restricted his cross-examination of a witness, (2) the trial court erred in denying his motion for mistrial based on improper jury argument, and (3) the evidence was legally and factually insufficient to support his conviction because of a variance between the indictment and the evidence presented at trial. We affirm.

CROSS-EXAMINATION

One of the State s key witnesses was Eric Stom, a police informant who purchased cocaine from appellant. Appellant sought to undermine Stom s credibility through cross-examination regarding his prior felony convictions. On direct examination, Stom testified that he had been convicted of a felony or a crime of moral turpitude. On cross-examination, appellant s attorney clarified that Stom had been convicted of two felonies, with one being a crime of moral turpitude. Appellant s attorney asked Stom what exactly he had been convicted of, and the State objected. Through an offer of proof, appellant s attorney established that Stom had been convicted of possession of a controlled substance and forgery. The trial court sustained the objection but allowed appellant s attorney to establish that Stom was a drug user who first started using cocaine at age sixteen and used cocaine and marijuana almost daily until he was put on probation in 1990. In his first point, appellant argues that the trial court erred in limiting his cross-examination of Stom because evidence regarding the type of offenses Stom had been convicted of would have further undermined his credibility.

Though the accused is entitled to great latitude in impeaching a witness s character, the extent of cross-examination is not unlimited. Hoyos v. State, 951 S.W.2d 503, 506 (Tex. App. Houston [14th Dist.] 1997), aff d, 982 S.W.2d 419 (Tex. Crim. App. 1998). Trial courts have considerable discretion in imposing reasonable limits on cross-examination, including how and when such impeachment will occur and what evidence is material for that purpose. Id.; Villarreal v. State, 750 S.W.2d 314, 319 (Tex. App. Dallas 1988, pet. ref d). Further, although the fact that a witness has been previously convicted of a crime may be introduced into evidence, the details of that offense are inadmissible. Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986).

Here, the jury had abundant information from which to assess Stom s credibility, including that he had two prior felony convictions with one being for a crime of moral turpitude and details about his history of illegal drug use. In light of this evidence, the additional impeachment value of the name of the offense is minimal at best. Accordingly, we find the trial court did not abuse its discretion in so limiting appellant s cross-examination of Stom, and we overrule appellant s first point.

IMPROPER JURY ARGUMENT

During voir dire, a prospective juror indicated that she knew appellant because he had volunteered at the Boys and Girls Club where she worked. In closing argument, the prosecutor, after urging the jury to find appellant guilty, stated, Because there comes a time when we begin to realize that those people who volunteer at the Boys and Girls Club, why are they volunteering for those kinds of things? I suggest to you . Appellant objected, and the trial court sustained appellant s objection and instructed the jury to disregard but denied appellant s request for a mistrial. In his second point, appellant contends this was error as the prosecutor s argument, which implied that appellant sold drugs or used drugs with children, was improper and injected harmful facts outside the record.

We review a trial court s denial of a motion for mistrial for abuse of discretion. Herrero v. State, 124 S.W.3d 827, 835 (Tex. App. Houston [14th Dist.] 2003, no pet.). Mistrials are an extreme remedy for curing prejudice and should be exceedingly uncommon. Id. at 835 36. In most instances, an instruction to disregard the remarks will cure any error. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994). We presume the jury obeys an instruction to disregard, and a mistrial is necessary only if the remark is so flagrant or offensive that its effect could not be overcome by such an instruction. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000); Herrero, 124 S.W.3d at 836. We need not decide whether the prosecutor s argument was improper because, even if improper, it was not so flagrant or offensive as to warrant a mistrial. See Wesbrook, 29 S.W.3d at 115 16 (holding that where the jury had been instructed to disregard it, even a prosecutor s comment inviting the jury to speculate on the existence of evidence not presented does not warrant reversal unless it is flagrant or offensive). We overrule appellant s second point.

VARIANCE BETWEEN INDICTMENT AND EVIDENCE

In his third point, appellant complains that because the indictment misspells the informant s name Stone instead of Stom and because the indictment was never officially amended to correct this error, the evidence is legally and factually insufficient to support his conviction. Not every variance between an indictment and the evidence is fatal. Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). Rather, only a material variance will render the evidence insufficient to support a conviction. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). In determining whether a variance is material, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). Appellant has made no attempt to establish that the variance was material. Appellant s defense did not depend on the name of the informant, and he is in no danger of being prosecuted again for selling the same cocaine proved at trial. See id. at 258; see also Stevens, 891 S.W.2d at 650 (finding variance based on typographical error in indictment not fatal). We hold the variance is not material, and since appellant s sufficiency claim is based solely on the variance, we overrule appellant s third point.

Having overruled appellant s three points of error, we affirm the judgment of the trial court.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 24, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).