Gary Len Caldwell v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-232-CR

GARY LEN CALDWELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 20,917-272

O P I N I O N

A jury convicted Gary Caldwell of possession of a controlled substance, cocaine, and assessed punishment at sixty-nine years. On appeal, Caldwell has four points of error. He argues that the court erred in allowing the State to use a chart during voir dire to illustrate the enhanced range of punishment resulting from prior convictions. Second, he contends the court should have submitted an instruction on whether the arresting officer had probable cause to arrest him. He also alleges that the court erred in admitting into evidence a "pen packet" used for enhancement purposes during the punishment phase of the trial. In his final point, Caldwell argues that the court erred in denying a mistrial after an objection was sustained during closing argument on punishment. We affirm.

Bryan police officers approached Caldwell after observing his involvement in a drug transaction. They arrested him after seeing him drop a bag of crack cocaine. A Brazos County grand jury indicted Caldwell for the possession of a controlled substance. The indictment also alleged two prior convictions for enhancement.

In his first point, Caldwell complains about the court allowing the prosecution to use a chart during voir dire showing successive increases in the minimum range of punishment that could be assessed based on the number of prior convictions. He argues that the chart informs the jury of the prior convictions contained in the indictment.

Error results when the enhancement paragraphs in the indictment are disclosed to the jury before the hearing on punishment is held. Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon 1987); Frausto v. State, 642 S.W.2d 506, 508 (Tex. Crim. App. 1982). However, both parties have the right to question the jury and inform the potential jurors during voir dire of the ranges of punishment available during the sentencing phase of the case if enhancement circumstances are proved by the state. Id. Counsel may not, however, go into specific allegations during voir dire of the prior convictions of the defendant. Frausto, 642 S.W.2d at 509. Allowing counsel to explain the potential ranges of punishment is the best method of deciding which jurors should be struck peremptorily for possible bias during the punishment phase of the trial, if a party decides to strike jurors for that reason. Bevill v State, 573 S.W.2d 781, 783 (Tex. Crim. App. 1978)

The record does not reflect that the prosecutor mentioned Caldwell's prior convictions during voir dire. We find no error from the court allowing the prosecution to use a chart during voir dire to illustrate the effect of prior convictions on the minimum range of punishment when the defendant's prior convictions are not discussed or disclosed. We overrule point one.

In his second point, Caldwell complains about the failure to give a probable-cause instruction in the charge. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 1991). Caldwell asserts that the evidence raises a question of the existence of probable cause to arrest, entitling him to a jury instruction that the evidence obtained as a result of the search following his arrest should not be used if the jury believes the arrest occurred with no probable cause.

The accused has a right to have the jury instructed on any defensive issue, such as an article 38.23 instruction, raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). The court must include a probable-cause instruction in the charge only if there are disputed fact issues concerning an officer's right to search or how the evidence was obtained. Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986); Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). An instruction on probable cause is not required, however, if the evidence shows that facts and circumstances existed to establish there was probable cause as a matter of law. Davis v. State, 474 S.W.2d 466, 469 (Tex. Crim. App. 1971). If there is no fact issue regarding the legality of a search, it is a question of law and thus one the court decides. Campbell v. State, 492 S.W.2d 956, 958 (Tex. Crim. App. 1973); Cantu v. State, 754 S.W.2d 512, 515 (Tex. App San Antonio 1988, no pet.).

Seizure of abandoned property without a warrant does not violate the Fourth Amendment of the United States Constitution, unless police use inappropriate procedures in obtaining the evidence. California v. Hodari, U.S. , 111 S. Ct. 1547, 1550, 113 L. Ed. 2d 690, (1991); Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698, 4 L. Ed. 2d 668 (1960); Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986). Abandonment consists of two components: first, an intent to abandon the property, and, second, the decision to abandon must be freely made, not the result of police misconduct. Comer, 754 S.W.2d at 659. When contraband is thrown, dropped, or placed away from the accused in a public place, abandonment occurs. Washington v. State, 810 S.W.2d 313, 314 (Tex. App. Houston [14th Dist.] 1991, pet. ref'd). To resolve abandonment, one must determine whether the accused voluntarily abandoned the property independent of any police misconduct. Comer, 754 S.W.2d at 659.

Caldwell clearly abandoned the property in this case. The officers witnessed what they determined from their experience and training to be a drug transaction. As they approached the group, they observed Caldwell throw the "baggy" of cocaine to the ground. There is no evidence of misconduct on the part of the police. Thus, when officer Thane recovered the cocaine, the seizure did not violate the Fourth Amendment. Consequently, there is no fact issue on the validity of the search, and the court properly denied Caldwell's request for an instruction under article 38.23. We overrule the second point.

Caldwell contends in his third point that the court erred by overruling his objection to a pen packet admitted into evidence during the sentencing phase of the trial. The exhibit was admitted in complete and redacted forms over several objections. The theme of all the objections was that the pen packet contained orders revoking probation and that these orders contained the circumstances surrounding the revocation of probation.

An order revoking probation must be included in a pen packet before a sentence of probation may be counted as a final conviction for enhancement purposes. Elder v. State, 677 S.W.2d 538, 539 (Tex. Crim. App. 1984). Although a revocation order must be included in the pen packet, the conditions and circumstances leading to the revocation are not to be included as part of the prior criminal record for enhancement purposes. Brown v. State, 667 S.W.2d 630, 634 (Tex. App. Ft. Worth 1984), aff'd, 692 S.W.2d 497 (Tex. Crim. App. 1985).

In looking at the final form of the exhibit as admitted and submitted to the jury, we find no specific acts, grounds or circumstances present regarding the violations leading to revocation of probation. We overrule point three.

Caldwell asserts in his fourth point that the court erred in denying his motion for a new trial because of improper jury argument in the sentencing phase of the trial. During closing argument, the State misstated when Caldwell was convicted of a prior crime to be used to enhance his punishment, saying it occurred while he was "on parole" instead of when he was an inmate in prison. Caldwell moved for a mistrial after the judge sustained his objection and instructed the jury to disregard the statement of the prosecutor.

An instruction to disregard is presumed to cure most errors. Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985). When an instruction is given and the court denies the defendant's motion for mistrial, error results only when the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision, and is so inflammatory that its prejudicial effect cannot be reasonably expected to be removed from the jurors' minds by the instruction to disregard. Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871, 107 S. Ct. 239, 93 L. Ed. 2d 164 (1986); Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991); Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985). If an instruction can be said to remove the prejudicial effect of the improper argument, no error results from the overruling of a motion for mistrial. Hernandez, 819 S.W.2d at 820.

A misstatement of when Caldwell's prior conviction occurred was improper argument. However, the instruction to disregard removed any prejudicial effect from the minds of the jurors; the court did not err when it denied Caldwell's motion for mistrial. We overrule his fourth point and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 21, 1993

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