and 05-88-00721-CR

AFFIRMED and Opinion filed September 27, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
Nos. 05-88-00720-CR and 05-88-00721-CR
............................
CHARLES WILLIS SAMPLES, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F88-78693-TL and F88-93764-TL
.................................................................
O P I N I O N
Before Justices Whitham, Baker, and Ovard
Opinion By Justice Baker
        A jury convicted Charles Willis Samples of the offenses of attempted capital murder of a police officer and unlawful possession of a firearm by a felon. He asserts five points of error. Three of these points concern the trial generally. He asserts the trial court erred in improperly restricting his right to cross-examine two police officers offered as witnesses by the State and that the trial court erred in sustaining the State's challenge to a prospective juror. His fourth point of error in each case asserts the evidence is insufficient to support the conviction for each offense. His fifth point in each case asserts that the court erred in overruling his motion to quash the enhancement paragraph in each indictment. We find no merit in these points, and we affirm the trial court's judgments.
        Appellant subpoenaed the personnel files of the two police officers involved in his arrest. Appellant desired to cross-examine the two officers about disciplinary actions, reprimands, or suspensions which may have occurred during the officers' employment as Dallas Police Officers. The trial court refused to permit those lines of cross-examination.         Appellant contends that the entire episode involved a one-on-one confrontation between one of the arresting officers and himself and that the State relied almost completely on that officer's testimony to prove the two offenses charged. Appellant's contention is that the examination would have been proper because it would show any bias or even unreliability in the witnesses which was essential to his defense. Appellant asserts that the trial court's refusal to permit the examination denied him his constitutional right to confrontation of the witnesses, and great latitude should be allowed a defendant in showing any fact which would tend to establish ill feelings, bias, motive, and animus on the part of any witness testifying against him. See Castro v. State, 562 S.W.2d 252, 256 (Tex. Crim. App. 1978). See also Blair v. State, 511 S.W.2d 277, 279 (Tex. Crim. App. 1974).
        The State argues that the trial court's action was correct because the evidence was not admissible under Rule 608(b) of the Rules of Criminal Evidence which provides that specific instances of conduct of a witness for the purpose of attacking his credibility may not be inquired into on cross-examination nor proved by extrinsic evidence. See Tex. R. Crim. Evid. 608(b). The State also contends that such evidence is not admissible where there is no connection between the incidents found in the officer's file and the offense on trial. See Smith v. State, 516 S.W.2d 415, 419 (Tex. Crim. App. 1974); Parker v. State, 263 S.W.2d 949, 950 (Tex. Crim. App. 1953).
        The general rule is that great latitude should be allowed a defendant in showing any fact which would tend to establish ill feelings, bias, motive, and animus on the part of any witness testifying against him. See Smith, 516 S.W.2d at 419-20. Although the mere fact of an arrest or indictment of the witness is not normally admissible for impeachment purposes, where the evidence of an arrest or legal accusation arises out of the same transaction for which the defendant is on trial, it may be admissible for such impeachment of the witness, to show bias, motive, ill feelings, or animus. See Smith, 516 S.W.2d at 420.
        There is no evidence in the record that anything in either officer's file had any connection with the offenses for which Samples was charged. The rejected evidence was not relevant. See Smith, 516 S.W.2d at 420; Huffman v. State, 479 S.W.2d 62, 67 (Tex. Crim. App. 1972). We hold that the trial court did not abuse its discretion in limiting appellant's cross-examination of the two police officers. We overrule points one and two.
        In his third point of error, appellant contends that the trial court erred in sustaining the State's challenge to a prospective juror. During voir dire, the prospective juror indicated his inability to assess a life sentence if the officer was not shot or injured. In answer to the prosecutor's questions, the prospective juror stated that in an attempted capital murder case he would require that there be a serious injury or an actual shooting of an officer before he could assess a life sentence. When specifically asked in a situation where someone was not actually shot could he assess a life sentence, the juror answered "no."
        The juror also testified as follows:
        I suppose what I would qualify on, if there is bodily injury or harm. Often times, I believe someone mentioned earlier that police officers tend to shade information, and I am of a mind that unless it can be proven that murder was attempted and, you know, soundly documented, I don't have any problem moving forward with that evidence and arriving at a life sentence.
 
        But if there is a lot of question and doubt and the officer is not shot or injured and they say someone is charged with attempted capital murder, I would have difficulty assessing a life sentence under those circumstances. Am I making myself clear?
        The trial court has great latitude in allowing a range of questions of prospective jurors in order to examine their qualifications, and appellate review is only for abuse of discretion. See Ussery v. State, 651 S.W.2d 767, 772 (Tex. Crim. App. 1983). The prospective juror's responses to the court and counsel revealed that he would not consider the full range of punishment available under the law. The State is entitled to jurors who will consider the full range of punishment. See Nethery v. State, 692 S.W.2d 686, 691 (Tex. Crim. App. 1985) cert. denied, 474 U.S. 1110 (1986). A prospective juror is subject to challenge for cause by the State when he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for a conviction or for punishment. The State is permitted to challenge a juror who cannot be fair and impartial because he will not consider the full range of punishment. See Nethery, 692 S.W.2d at 691. The trial court did not abuse its discretion in excusing the prospective juror. We overrule point number three.
        In his fourth point of error, appellant contends that the evidence is insufficient to support the conviction for either attempted capital murder of a police officer or possession of a firearm by a felon. When the claim is made that the evidence is insufficient to support the conviction, the standard of review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The reviewing court will look at all the evidence in the light most favorable to the verdict or judgment. Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984).
        The record reflects Officers Williams and Brown were patrolling their regular beat in their car when officer Williams saw a person, later identified as appellant, standing next to a fence by a car and a vacant house. Officer Williams testified he immediately shined his spotlight on appellant and noted he acted startled. Officer Williams testified appellant was facing him at the time, and then appellant turned around and made a motion with his hands to remove something from the front of the waist of his pants and threw whatever it was over the fence. The officers then got out of their car and approached appellant who began walking toward them. Officer Williams stopped appellant and made a patdown search for weapons. While Officer Williams detained appellant, Officer Brown went to the fence where they had observed appellant making the throwing motion and saw a pistol lying on the ground on the other side of the fence. Officer Williams then retrieved the pistol and noted it was fully loaded. Both officers testified that when they saw the pistol on the other side of the fence in the area where appellant made the dropping motion the gun was the only thing in the immediate area, and nothing else was found there. Officer Williams stuck the pistol in the back belt of his pants and pulled his coat over it where only the handle was showing. Officer Williams then approached appellant and told him he was under arrest for having the pistol and made appellant put his hands on top of the car. Appellant took his hands off the top of the car and turned toward Officer Williams. The officer testified he was fearful that appellant would either resist arrest or attempt to flee so he grabbed appellant around the neck to hold him.
        At this point, Officer Brown left the scene to chase the other individual who had been in the car but got out and ran off. Officer Williams was left alone to detain appellant. Officer Williams testified that appellant struggled with him and tried to push away to escape. Appellant put his hands around the officer's waist and took the gun from the back of the officer's pants and pulled it out. At this point, the officer testified he was concerned for his life. The officer and appellant fell to the ground, and the struggle continued with Officer Williams telling the appellant if he did not stop that he might have to shoot appellant. Officer Williams testified that while they were wrestling on the ground that appellant said he was going to kill the officer. Officer Williams testified that when appellant said he would kill the officer, he believed him.
        We first consider the sufficiency of the evidence to support the conviction for possession of a firearm. Appellant contends that the evidence is insufficient to support the conviction for possession of a firearm because no witness testified to actually seeing him in possession of the gun. He argues that both he and his witnesses denied that he had a gun in his possession prior to the time that the two officers arrived at the scene. He contends that the evidence is only sufficient to show that both officers saw appellant go to his waist, remove something from his pants, and make a throwing motion over the fence.
        The trier of fact is free to accept or reject all or a portion of the testimony of any witness. Benjamin v. State, 621 S.W.2d 617, 618 (Tex. Crim. App. 1981). The trier of fact is not required to believe even uncontroverted testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). Questions concerning the credibility of the witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). In our view, the record supports the inference that the appellant was in possession of the pistol and dropped it over the fence, and the evidence is sufficient for any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.
        Appellant's only contention of insufficiency regarding the conviction for attempted capital murder is that there was no evidence that he had his finger on the trigger in an attempt to shoot the officer with the gun. This contention has already been rejected. In Godsey v. State, 719 S.W.2d 578, 583 (Tex. Crim. App. 1986), the Court of Criminal Appeals held that the criminal attempt law allows intervention before the accused has come too dangerously close to committing the intended crime and allows the police "a reasonable margin of safety after the intent to commit the crime was sufficiently apparent to them." Since the only act that the accused did not do was pull the trigger, an act which could have accomplished commission of murder, that court did not believe that the intent of section 15.01 was to draw a line at the "last proximate act." See McCravy v. State, 642 S.W.2d 450, 460 (Tex. Crim. App. 1982) (op. on reh'g). Tex. Penal Code Ann. § 15.01 (Vernon Supp. 1989). The court went on to say that to require some proof that a defendant attempted to fire undermines the notion of attempt offenses in which the act is more than mere preparation that tends but fails to effect the commission of the intended offense. In our view, Godsey is controlling here. The record reflects appellant's actions constituted more than mere preparation, and the evidence is sufficient for any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt. We overrule both of appellant's insufficiency points.
        In his fifth point of error, appellant contends that the trial court erred in overruling his motion to quash the enhancement paragraph of the indictment in each case. Appellant's argument is that the indictment underlying the previous conviction that was alleged for enhancement purposes was fatally defective for failure to properly allege ownership and contained a variance between the indictment, which showed one district court, and the judgment and sentence, which showed another district court.
        The supplement to the statement of facts reflects that the underlying indictment of the enhancement paragraph alleges theft of property from "LeRoy Turner." This is sufficient to allege ownership. See Hightower v. State, 629 S.W.2d 920, 923 (Tex. Crim. App. 1981).
        The contention that a variance between the court number in the indictment and the court number in the judgment constitutes a fatal variance has been determined adversely to the appellant. See Bray v. State, 531 S.W.2d 633, 634-35 (Tex. Crim. App. 1976). We overrule point number five.
        We affirm both of the trial court's judgments.
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
880720.FU05
 
 
File Date[11-02-89]
File Name[880720F]