David Fletcher v. The State of Texas--Appeal from 361st District Court of Brazos County

NO. 10-90-138-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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DAVID FLETCHER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 361st Judicial District Court

Brazos County, Texas

Trial Court # 19,395-361

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O P I N I O N

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A jury convicted Appellant of delivery of a controlled substance and the judge set his punishment at thirty years in prison. See Tex. Health & Safety Code Ann. 481.112. (Vernon 1991). Appellant contends that he was denied the right to cross-examine a State's witness. We will overrule this point and affirm the judgment.

Appellant sold five "rocks" of "crack cocaine" to Rafus McGill, a confidential informant working with the Brazos County Narcotics Task Force, and Dan Jones, an investigator with the College Station police department. During the transaction, Appellant and McGill left Jones's sight, so that McGill was the only witness to the delivery. At trial, Appellant sought to cross-examine McGill about his prior use of drugs. After the State's objection was sustained, the proffered testimony was included in a bill of exception.

Appellant complains that the court's refusal to allow him to cross-examine McGill about his drug use denied him the right to "confront and cross-examine a witness in violation of Article 6, U. S. Constitution and Article 1, Section 10, Texas Constitution." A defendant is entitled to a fair opportunity to cross-examine a state's witness. Wright v. State, 491 S.W.2d 936, 939 (Tex. Crim. App. 1973). Such cross-examination must be done with due regard to rules of evidence and is within the sound discretion of the trial court. Id.

The parties agree that specific instances of misconduct may not be used to attack the credibility of a witness and may not be inquired into on cross-examination. See Tex. R. Crim. Evid. 608(b). They disagree, however, on Appellant's purpose in wanting to show McGill's prior drug use. The State contends that the testimony in the bill of exception falls squarely within the prohibition of the rule, while Appellant contends that he sought to "illuminate why the task force was using [McGill] and whether he was still using drugs during the period he was working for the task force." See id.

This question has been answered by the rule enunciated in Epley v. State, 704 S.W.2d 502, 504 (Tex. App.--Dallas 1986, pet. ref'd):

[W]e conclude that testimony of drug abuse is not in itself admissible to impeach a witness. The evidence must show an impairment of mental or moral sensibilities as a result of either recent or habitual drug abuse. No such evidence was offered here.

See also Turner v. State, 762 S.W.2d 705 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd).

Because the rejected testimony shown by the bill of exception does not show recent or habitual drug abuse, we hold that the court properly refused to allow cross-examination of McGill on that topic.

Appellant's point is overruled and the judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Thomas, Justice Cummings,

and Justice Vance

Affirmed

Opinion delivered and filed February 21, 1991

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