Rodney Leon Sandles v. The State of Texas--Appeal from 248th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-204-CR

RODNEY LEON SANDLES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 248th District Court

Harris County, Texas

Trial Court # 667,609

O P I N I O N

This is an appeal by Appellant Sandles from his conviction for delivery of cocaine, enhanced by two prior felony convictions, for which he was assessed confinement for twenty-six years in the Institutional Division of the Texas Department of Criminal Justice.

On March 17, 1993, Officers Higgins and Chaison of the Houston Police Department went to a location that was known for illegal narcotics trafficking. Appellant Sandles asked the officers if they wanted to buy a watch. The officers said, "No." Appellant then asked Officer Chaison what he wanted, and the officer replied that he wanted a "twenty" or $20 worth of crack cocaine. Officer Higgins then said to Appellant, "It's for me man. I want it now, I need it." Appellant said he did not have the cocaine but he could get it. Appellant went to an apartment near the location and returned shortly thereafter with a Mr. Roach [a co-defendant]. Appellant approached Officer Higgins and said that Mr. Roach would give the officer the crack cocaine. Mr. Roach then handed Officer Higgins the rock of crack cocaine and Officer Higgins handed Roach a $20 bill. The officers left the location and the arrest team arrested Appellant and Roach. The analysis of the substance sold to Officer Higgins revealed it was 213.3 milligrams of 89.9% pure cocaine.

Appellant was convicted under the law of parties; the jury found the two prior felony convictions to be "true", and assessed Appellant's punishment at 26 years in prison.

Appellant appeals on four points of error.

Point one: "There is insufficient evidence that Appellant had the intent to promote or assist in the commission of the offense."

In reviewing the sufficiency of the evidence, we must determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, S.Ct., 443 U.S. 307, 319; Rabbani v. State, (Tex. Crim. App.) 847 S.W.2d 555, 558.

Appellant asserts the evidence is insufficient to show he was acting with intent to promote or assist Mr. Roach's delivery of the crack cocaine to Officer Higgins. Officer Higgins wanted to purchase $20 worth of crack cocaine; Appellant did not have any; he left and returned with co-defendant Roach who handed the cocaine to the officer and received a $20 bill.

Proof of a defendant's culpable state of mind is nearly always proved by circumstantial evidence. We have reviewed all the evidence and have concluded that the requisite mental state existed. Appellant was standing at a location where illegal narcotics trafficking was common. He told Officer Higgins that he would get the cocaine and did get Mr. Roach who actually transferred the cocaine to the officer.

The evidence is clearly sufficient to show that Appellant was guilty of acting with the intent to promote or assist Roach's delivery of the cocaine to Officer Higgins.

Point one is overruled.

Point two: "There was no instruction on the defense of entrapment raised by the evidence."

The record reflects there was no objection to the trial court's charge to the jury; therefore, no error has been preserved for the purpose of appeal. Tex. R. App. P. 52(a); Thomas v. State, (Tex. Crim. App.) 701 S.W.2d 653, 656. Moreover, the defense of entrapment was not raised by the evidence and was not even asserted at trial.

Point two is overruled.

Point three: "During the guilt or innocence stage of the trial, the prosecutor made an impermissible jury argument striking at the appellant over the shoulders of his counsel in an attempt to prejudice the jury against the appellant."

During final arguments in the guilt-innocence phase, Appellant's counsel argued as follows:

[Officer Higgins] says [the location where appellant was arrested] is a drug spot, high crime area, or whatever. And they are in there to do what? Sweep out the young black men out of that area. They don't want them on that corner; and [a police officer] just can't walk out there and say, "Okay, you are out of here, you are standing up; you are a black male; and you don't belong in this community. The man was coming out of a store. So, therefore, you don't belong here. We are taking you off."

Following Appellant's above argument, the prosecutor argued:

First thing we want to say is, I resent like hell, like hell, this lawyer, whom I like and respect, three times during his final argument, suggesting that this is some racist conspiracy on the part of HPD, knowing full well that the record does not reflect that; but I do want it to reflect that Officer Higgins is black. As you sit in this courtroom, you can see them. You saw them. Officer Chaison is black. Derrick Sanders, the chemist, is black.

But what is he trying to do? What he is trying to do where he starts criticizing the police officer, when he starts talking about the police making sweeps, and just sweeping up all these young black men? We are talking about anger here. He is trying to shift the anger.

Appellant is complaining about the prosecutor's above argument. In the first place, no objection was made to the argument; therefore no error has been preserved for the purposes of appeal. Tex. R. App. P. 52(a).

In any event, the complained-of State's argument was in response to the argument of Appellant's trial attorney. Coble v. State, (Tex. Crim. App.) 871 S.W.2d 192, 204. Specifically, the trial prosecutor can, in his argument, challenge the improper injection of the issue of race into the trial by the defendant's attorney. McDuffie v. State, (Tex. App. Beaumont) 854 S.W.2d 195, 216. The prosecutor did not err in his final argument to the jury.

Point three is overruled.

Point four: "The trial court committed reversible error by allowing evidence of extraneous offenses during the punishment stage."

In the punishment phase, the State offered pen packets to substantiate Appellant's prior felony convictions. Appellant's counsel objected, but did not object that the pen packets contained references to unadjudicated offenses, but alleged only the pen packets were not properly authenticated. The court overruled Appellant's objection and admitted the pen packets into evidence.

Prior to the showing of the pen packets to the jury, the prosecutor offered to redact the information on unadjudicated offenses but defense counsel refused to agree to such a deletion. The complained of information was that Appellant's probation had been revoked in one of the cases for failure to report and pay probation fees, and that the robbery conviction had originally been indicted as an aggravated robbery but was reduced to robbery. In the burglary conviction the pen packet revealed that the first paragraph of the indictment had been abandoned by the State.

To properly present error on appeal, a point of error must correspond to the objection made at trial because an objection stating one legal theory may not be used to support a different legal theory on appeal. Turner v. State, (Tex. Crim. App.) 805 S.W.2d 423, 431.

In light of the refusal of Appellant's counsel to allow the deletion of the references to the unadjudicated extraneous offenses from the pen packets prior to their publication to the jury, an objection raised after admission is untimely. No error has been preserved. Tex. R. App. P. 52(a).

Pen packets for five prior felony convictions were introduced. The State urged the jury to assess punishment at confinement for life. They jury, however, assessed Appellant's punishment at twenty-six year, only one year more than the minimum possible punishment.

Any error in the admission of the portions of the pen packets referring to extraneous unadjudicated offenses did not contribute to the jury's punishment verdict. Tex. r. App. P. 81(b)(2).

Point four is overruled and the judgment is affirmed

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 7, 1994

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