Garry C. Cole v. The State of Texas--Appeal from 232nd District Court of Harris County

NO. 10-89-117-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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GARRY C. COLE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 232nd Judicial District Court

Harris County, Texas

Trial Court # 472,425

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O P I N I O N

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Appellant was convicted of the aggravated assault of a peace officer and his punishment was assessed at eight years in prison, probated, and a $1000 fine. See Tex. Penal Code Ann. 22.02 (Vernon Supp. 1991). He contends the court erred when it refused to allow him to make a bill of exception in question and answer form and refused to allow him to question witnesses about the shooting of William Dozier. The judgment will be affirmed.

Shortly after being assaulted by Appellant and William Dozier in a parking lot, Officer Coons pursued Appellant in an attempt to identify or apprehend him. Appellant escaped only to be apprehended later by other police officers. The evidence conflicted on whether Coons identified himself as an officer before Appellant struck him. After Appellant had fled, Coons and Dozier later confronted each other again, and as a result of this second confrontation, Coons shot and fatally wounded Dozier.

When the court excluded evidence of Coons's shooting Dozier, Appellant sought to include the excluded testimony in a bill by question and answer form. The court refused to allow him to make a bill in that manner, but allowed his counsel to make a bill by stating the substance of the excluded evidence. Point one is based on the refusal to allow a bill to be perfected by question and answer.

Bills of exception must be made in question and answer form at the request of a party. TEX. R. CRIM. EVID. 103(b); TEX. R. APP. P. 52(b). Thus, the court erred when it refused to allow the bill to be made in that form. See Dopico v. State, 752 S.W.2d 212, 215 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd). The question, however, is whether this was harmless error. See TEX. R. APP. P. 81(b)(2). The State argues that the error was harmless because Appellant was allowed to make the bill by stating the substance of the excluded testimony.

Although he was prevented from making the bill in question and answer form, he was allowed to perfect it by stating what the excluded evidence would have been. See Gutierrez v. State, 764 S.W.2d 796, 798 (Tex. Crim. App. 1989). Thus, one cannot say the court did not know what it was excluding. See id. The failure to allow a question-and-answer bill of exceptions was harmless beyond a reasonable doubt because the substance of the excluded evidence has been properly preserved for appellate review. Point one is overruled

Appellant argues in points two through eight that the court erred when it refused to allow him to question several witnesses about the shooting of Dozier. Coons's fatal shooting of Dozier, which occurred subsequent to Appellant's assault of Coons, was not relevant to whether Appellant had assaulted Coons knowing he was a police officer and, thus, evidence of Coons's shooting Dozier was properly excluded. See Tex. R. Crim. Evid. 401, 402. Points two through eight are overruled. The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas, Justice

Cummings and Justice Vance

Affirmed

Opinion delivered and filed July 25, 1991

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