WILLIAM HALL, JR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 21, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01089-CR
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WILLIAM HALL, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause No. F88-95155-HU
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OPINION
Before Justices McClung, Thomas, and Ovard
Opinion By Justice Ovard
        William Hall, Jr. was convicted by a jury of possession of cocaine. After finding two enhancement paragraphs true, the jury assessed punishment at ninety-nine years' confinement. In this appeal, Hall asserts five points of error: (1) the evidence was illegally seized; (2) he was denied effective assistance of counsel; (3) omission of the trial court's charge in the transcript requires reversal; (4) the prosecutor's argument regarding "dealing in drugs" is reversible error; and (5) the evidence is insufficient to prove that the first alleged prior conviction became final prior to the commission of the offense alleged in the second prior conviction.
        We agree, as asserted in point of error five, that the state failed to prove that the first prior conviction became final prior to commission to the second prior conviction. We overrule the remaining points of error. Accordingly, we remand the case to the trial court for a punishment hearing in accordance with Texas Code of Criminal Procedure Annotated art. 44.29(b) (Vernon Supp. 1989).
        On August 5, 1987 at approximately 11:30 a.m., Dallas Police Officer Steve Nelson was showing a new recruit an area containing apartments known to the police to be drug houses. Nelson observed a male walk out of one of the apartments toward a parked vehicle. Nelson followed the male as he turned and walked back toward the complex. The recruit approached the driver of the vehicle. As Nelson followed the male, Nelson and Hall, a bystander, inadvertently bumped into one another as Nelson went around a corner of the complex. There was no apparent connection between Hall and the male being followed by Nelson.
        When they initially bumped, Hall's back was against the building and he put his left hand behind his back. Nelson knew the area to one of heavy gun concentration and assaultive offenses. For his own safety, Nelson grabbed Hall's arms and demanded to see what Hill had in his hands. A fight ensued. While hitting and kicking Nelson, Hall threw a matchbox to the ground. After subduing and arresting Hall, Nelson recovered the discarded matchbox, which contained cocaine.
        Hall argues, in his first point of error, that his detention was illegal and that any evidence obtained as a result of the detention was inadmissible. He specifically contends that his abandonment of the cocaine was the result of an illegal detention. Abandonment consists of two components: 1) a defendant must intend to abandon property, and 2) a defendant must freely decide to abandon property; the decision must not merely be the product of police misconduct. Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1988) (op. on reh'g). The validity of the search of allegedly abandoned evidence will turn on the nexus between the alleged abandonment and the legality of the person's detention. Hawkins v. State, 758 S.W.2d 255, 260 (Tex. Crim. App. 1988). Generally, a police officer may conduct a limited detention of an individual for investigative purposes if the officer has a reasonable suspicion that some activity out of the ordinary has occurred, some suggestion to connect the detainee in the unusual activity, and some indication that the activity is related to crime. See Terry v. Ohio, 392 U.S. 1, 19-27 (1968); Stone v. State, 703 S.W.2d 652, 654 (Tex. Crim. App. 1986). A limited search for weapons after a temporary detention is permissible where a reasonably prudent person in the officer's circumstances would be warranted in the belief that his safety was in danger. Perez v. State, 548 S.W.2d 47, 49 (Tex. Crim. App. 1977).
        The initial confrontation between Hall and Nelson was inadvertent. Nelson had reason to be apprehensive for his own safety. The event occurred in an area known for aggravated assaults, shoot outs, weapons, and drugs. As they bumped into one another, Hall's back was against the wall and he put his left hand behind his back. Hall stated, "Please, let me go. I didn't do anything." Nelson, concerned for his own safety and the possibility that Hall carried a weapon, grabbed Hall's arms and ordered him to drop what was in his hands. Hall started fighting, hitting, and kicking Nelson. As they were fighting, Hall tossed a matchbox. The matchbox was subsequently determined to contain cocaine and was retrieved after Hall was restrained and arrested. We determine that Nelson's actions were reasonable under the circumstances. The detention was affected only after circumstances reasonably indicated that Nelson's safety was in jeopardy and that a crime might be committed. See Lopez v. State, 681 S.W.2d 788, 790-91 (Tex. App.--Houston [14th Dist.] 1984, no pet.). We hold that the detention of Hall was not illegal, unreasonable, nor the result of police misconduct.
        Further, there was no objection to the seizure of the cocaine, nor to the detention of Hall, and no motion to suppress the evidence filed. Without an objection to the evidence, nothing is preserved for our review. Weatherspoon v. State, 501 S.W.2d 909, 911 (Tex. Crim. App. 1973). We overrule Hall's first point of error.
        In point of error two, Hall claims he was denied effective assistance of counsel because his counsel failed to challenge the legality of his detention. On appeal, Hall must demonstrate that counsel's representation so undermined the proper functioning of the adversary process that the trial cannot be relied upon for producing a just result. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 727 S.W.2d 53, 57 (Tex. Crim. App. 1986). He must show that counsel's representation was below the standard of reasonableness and but for counsel's errors, the result of the proceeding would likely have been different. Strickland, 446 U.S. at 687, 694; Hernandez 726 S.W.2d at 55. Reasonably adequate assistance of counsel is viewed from the totality of the entire representation and not solely by sole acts or omissions of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
        Upon review of the entire record, we initially note that Hall was represented at trial by two counselors. Hall's counselors filed at least ten important pretrial motions. The State's witnesses were thoroughly cross-examined. Appropriate objections were urged throughout the trial on Hall's behalf. Proper arguments for Hall were made at all stages of the trial. Hall's counselors afforded him an overwhelmingly competent and reasonable representation based upon the facts presented. As we previously determined, Hall's detention was not illegal and the cocaine was admissable. Even if it was determined that the cocaine was inadmissable, we hold the entire representation was reasonable under the circumstances of this case. Hall's second point of error is overruled.
        In his third point of error, Hall contends that an omission in the transcript of the trial court's charge on the guilty--not guilty phase of the trial is reversible error. He argues that this omission denies him review of the charge for egregious harm, due course of law, and due process of law under the U.S. Constitution, Amendments V and XIV, and the Texas Constitution Article 1, section 19. The transcript indicates "not found" for the trial court's charge on the guilty--not guilty phase of the trial. It was not presented for our review.
        The Court of Appeals shall presume that the court's charge was certified by the judge and filed by the clerk before it was read to the jury, unless such matters were made an issue in the court below, or it otherwise appears contrary from the record. Tex. R. App. P. 80(d). Pursuant to an order of this Court, the trial court conducted a hearing regarding the missing charge. At the hearing, a copy of that charge, provided by the court reporter in the case, was admitted, and is now a part of our record. The trial judge stated that a visiting judge presided at the jury trial. The reporter informed the trial court that this was a copy of the charge that she gave to the judge to read and give to the jury. Further, according to the reporter, a copy was provided to each counsel in the case. The objection by appellant, at the hearing, was that this copy was not the original, not an exact copy submitted to the jury, and that the copy did not contain the judge's signature. He now argues on appeal, that there is no way to determine that this charge is a true and correct copy because it does not contain the judge's signature.
        Since the reporter provided a copy of the charge that she gave to the judge to read and give to the jury, we determine that the record now contains a charge substantially the same as that given the jury. This is sufficient for our review. See, e.g., Danny Ray Harris v. State, No. 69, 366, slip op. 1, 5-10 (Tex. Crim. App. June 28, 1989) (substituted transcription of pretrial hearings sufficient); Broussard v. State, 471 S.W.2d 48 (Tex. Crim. App. 1971) (substitued copy of indictment sufficient for lost indictment); Fine v. State, 68 S.W.2d 192, 195 (Tex. Crim. App. 1933) (substituted charge for lost charge held substantially same). Appellant has failed to demonstrate any error in the charge, and we do not determine any. Appellant's third point of error is overruled.
        In his fourth point of error, Hall contends that the State's argument that he was "dealing in dope" is reversible error. Proper jury argument may include references to: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). As a general rule, an instruction to disregard improper argument will cure the error unless its prejudicial effect cannot be cured by the instruction. Brown v. State, 692 S.W.2d 497, 502 (Tex. Crim. App. 1985); Anderson v. State, 633 S.W.2d 851, 855 (Tex. Crim. App. [Panel Op.] 1982).
        The record reveals that the argument presented by the State was not supported by the evidence and did not fall within any of the permissible categories for proper jury argument. We strongly disapprove of the State's argument. However, after a prompt objection and request for instruction by Hall's counsel, an immediate instruction to disregard was given to the jury by the trial court. We hold that the prompt instruction to disregard, under the facts of this case, cured the error. Brown, 692 S.W.2d at 502; Anderson, 633 S.W.2d at 855. Hall's fourth point of error is overruled.
        Hall contends in his fifth point of error, that the evidence was insufficient to prove that the first prior conviction alleged in the indictment became final prior to the commission of the offense alleged in the second prior conviction. The State must plead and prove that the alleged first prior conviction became final before the commission of the offense in the alleged second prior conviction. Porter v. State, 566 S.W.2d 621, 621-22 (Tex. Crim. App. [Panel Op.] 1978); Tyra v. State, 534 S.W.2d 695, 697-98 (Tex. Crim. App. 1976); Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 1989).
        Hall pled not true to both prior alleged convictions. The record, as the State concedes, is devoid of any evidence to prove the date of commission of either alleged prior conviction. As the State did not meet its burden to provide evidence of the dates of the commission of the crimes, we sustain Hall's fifth point of error, and remand this case to the trial court to proceed with the punishment stage of the trial as provided by the Texas Code of Criminal Procedure Annotated art. 44.29(b) (Vernon Supp. 1989).
 
 
                                                          
                                                          JOHN OVARD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
881089F.U05
 
 
 
File Date[12-21-89]
File Name[881089F]