Marcus Wayne Hardge v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed August 2, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00455-CR

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MARCUS WAYNE HARDGE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1045309

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

Appellant, Marcus Wayne Hardge, appeals his conviction for felony possession of cocaine with intent to deliver. In a single issue, appellant argues the trial court erred when it excluded the testimony of a defense witness when the witness violated Texas Rule of Evidence 614. We affirm.

Factual and Procedural Background

On October 27, 2005, Harris County homicide detectives Wischkoski and Pinkins were conducting an investigation. Wischkoski received information from a civilian informant, who then led Detective Wischkoski to a residential neighborhood where the informant identified appellant as appellant drove into the neighborhood. Appellant drove into a driveway and got out of his vehicle. Appearing to notice Detective Wischkoski=s parked vehicle, appellant got back into his vehicle and drove off. Detective Wischkoski followed and when appellant stopped for a stop sign, Detective Wischkoski pulled up next to appellant, showed his badge and asked appellant to pull over. Appellant made a left turn and then turned into a driveway. Detective Wischkoski then instructed appellant to get out and move to the back of his vehicle, which appellant did.

Detective Wischkoski patted appellant down for weapons and informed appellant they were investigating another offense and wanted to speak to him regarding their investigation. Appellant cooperated with the detectives and gave his verbal consent to search his vehicle. Detective Wischkoski then asked appellant to sign a written consent form. After appellant read the form, he signed it in the presence of detectives Wischkoski and Pinkins. As Detective Wischkoski moved to search appellant=s vehicle, appellant told Detective Wischkoski Ait was under the driver=s side seat.@ Not knowing what appellant meant, Detective Wischkoski asked appellant what was under the seat. Appellant told Detective Wischkoski it was in a purple bag. Detective Wischkoski then retrieved a purple Crown Royal bag from under the driver=s side seat. Inside the bag, Detective Wischkoski discovered 54.42 grams of cocaine.

At the start of appellant=s trial, appellant invoked Texas Rule of Evidence 614, commonly referred to as Athe Rule.@ Tex. R. Evid. 614. The Rule provides that, at the request of a party, the trial court shall order witnesses excluded from the courtroom so that they cannot hear the testimony of the other witnesses. Id. Following the State=s case in chief, appellant called Shantel McCall to testify. One of the State=s prosecutors then informed the trial court she had observed Ms. McCall propping the courtroom door open listening to the testimony of the State=s witnesses. The following exchange then occurred:

[APPELLANT=S COUNSEL]: I want to make sure you know I didn=t know anything about that.

TRIAL COURT: Of course not. Bottom line is the effect is the same.

[APPELLANT=S COUNSEL]: I agree. So that takes care of her testimony.

THE COURT: Okay.

* * *

[APPELLANT=S COUNSEL]: Defense would rest and close.

The jury found appellant guilty of felony possession of cocaine with intent to distribute. Tex. Health & Safety Code Ann. ' 481.112(d). Appellant=s conviction was enhanced by two prior felony convictions and the jury sentenced appellant to seventy-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Tex. Pen. Code Ann. ' 12.42(d).

Discussion

In a single issue, appellant argues the trial court abused its discretion when it excluded Ms. McCall=s testimony as a sanction for violating Rule 614. In response, the State asserts appellant waived this issue on appeal as appellant did not assert any type of objection or complaint in response to the trial court=s decision to exclude Ms. McCall. We agree with the State.

Generally, a specific objection pointing out reasons for error is necessary to preserve error for appellate review. Tex. R. App. P. 33.1(a)(1)(A). Requiring a party to lodge an objection with the trial court (1) ensures that the trial court will have an opportunity to prevent or correct errors, thereby eliminating the need for a costly and time-consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to respond to complaints; and (3) promotes the orderly and effective presentation of the case to the trier of fact. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). A defendant must object when the trial court excludes the testimony of one of his witnesses. Madrigal Rodriguez v. State, 749 S.W.2d 576, 578 (Tex. App.CCorpus Christi 1988, pet. denied). In addition, the issue raised on appeal must comport with the specific objection voiced at trial. Id. Here, the record indicates that not only did appellant not lodge a contemporaneous objection to the trial court=s exclusion of Ms. McCall, but voiced agreement with the trial court that exclusion was an appropriate sanction for Ms. McCall=s violation of the Rule. Since no objection was voiced during appellant=s trial, this issue has not been preserved for appellate review. Id. We overrule appellant=s only issue on appeal.

Conclusion

Having overruled appellant=s single issue on appeal, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 2, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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