Mack Harvey Coleman, a/k/a Snowman v. The State of Texas--Appeal from 27th District Court of Bell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-159-CR
MACK HARVEY COLEMAN,
a/k/a SNOWMAN,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 38,648, HONORABLE JACK W. PRESCOTT, JUDGE

PER CURIAM

A jury found appellant guilty of delivering less than 28 grams of cocaine, a controlled substance. Tex. Health & Safety Code Ann. 481.112 (Pamph. 1991). The district court assessed punishment at imprisonment for fifteen years.

Stephen Wyatt testified that he purchased four rocks of crack cocaine from appellant for $100. Wyatt was a "cooperating individual." Following his own conviction for possession of cocaine, Wyatt acted as a government informer in approximately fifty cases, including appellant's. Daniel Sanchez, a military policeman working undercover, testified that he was with Wyatt and witnessed the transaction.

Appellant's first two points of error concern jury voir dire. First, appellant contends the court erred by overruling his objection to a question propounded to venire member Smith by the prosecutor. Smith had previously served as a juror in a criminal case. The prosecutor asked Smith if the jury in that case assessed punishment; Smith answered affirmatively. At this point, appellant objected to the prosecutor inquiring into the outcome of the previous trial.

It is customary not to ask venire members with previous jury experience the outcome of the earlier trial, and it has been held that a trial court does not abuse its discretion by prohibiting such questioning. Redd v. State, 578 S.W.2d 129 (Tex. Cr. App. 1979). But appellant cites no authority holding that it is error to permit such questions. Moreover, appellant did not object to the question when it was asked, but only after the question was answered. Finally, we fail to see how appellant was harmed, since Smith did not serve on the jury. Reversible error is not presented.

Appellant's second point of error complains of the overruling of his challenge for cause to venire member Saage. However, appellant did not request an additional peremptory challenge or assert that an objectionable juror sat on the case. Thus, no harm is demonstrated. Harris v. State, 790 S.W.2d 568, 581 (Tex. Cr. App. 1989).

In point of error three, appellant urges that the trial court erred by granting the State's motion in limine relating to the cross-examination of Wyatt. By its motion in limine, the State asked that appellant be precluded from asking Wyatt his current address without first demonstrating a need for this information. After defense counsel objected that he anticipated asking the witness the town in which he lived, but not his address, the court granted the motion. The court advised defense counsel that "I will . . . let you be fully heard on that outside the presence of the jury if we get to that point and we see any kind of compelling need for that." During his subsequent cross-examination of Wyatt, defense counsel did not return to this subject.

Having never sought to cross-examine Wyatt as to his residence, appellant presents nothing for review. Contrary to the argument in his brief, the trial court did not "telegraph" to the defense that he would not permit cross-examination on that subject under any circumstances. The ruling on the motion in limine merely required a preliminary showing of relevance before such questioning. We find no abuse of discretion in this. See Castle v. State, 748 S.W.2d 230 (Tex. Cr. App. 1988).

Appellant's next point of error is based on the following exchange between the prosecutor and Sanchez:

 

Q. And working undercover before are individuals transferred frequently who work undercover?

 

A. Yes, sir.

 

Q. Could you tell the members of the jury why that is?

 

A. Occasionally we'll have fear of life transfers where threats are made against agents or people that assist the agents.

 

MR. POTTER: Your honor, we object to this. It is completely not relevant to this inquiry. There hasn't been fear of life situation brought here and we feel this is entirely inflammatory and we object to it, sir.

 

MR. CONVERY: I'm not suggesting that there is. I think I can tie it up pretty quickly, Your Honor.

 

THE COURT: All right. Objection overruled.

 

MR. POTTER: Thank you, Your Honor.

 

THE COURT: Limit it to what happened in this case.

 

MR. POTTER: Thank you.

 

Q. Investigator Sanchez, a narcotics officer whether he be civilian or military is he of any value undercover once he's been identified by the local narcotics community?

 

A. No, sir.

 

Appellant argues that the State was seeking to inflame the minds of the jurors by its questioning of Sanchez. However, it is not clear that the witness' reference to "fear of life transfers" was what the prosecutor had in mind when he asked why undercover officers are often transferred. In any event, Sanchez did not testify that he had been threatened, and there is no evidence of threats to any other person in the record. We conclude that the overruling of appellant's objection was at most harmless error. Tex. R. App. P. Ann. 81(b) (Pamph. 1991).

Another State witness was Temple police officer Dan Wills. Wills testified that he heard Sanchez report over the police radio that he "had just bought from a black male subject who was wearing a letterman's jacket with an R on it which was gray in front of the Groovy Grill." Appellant's hearsay objection to this testimony was overruled, a ruling he brings forward as a point of error. We conclude that no error is presented, as the testimony was directed to establishing what was said rather than the truth of what was said. McKay v. State, 707 S.W.2d 23, 33 (Tex. Cr. App. 1985); Tex. R. Cr. Evid. Ann. 801(d) (Pamph. 1991).

In three points of error, appellant complains of the overruling of his objections to allegedly leading questions asked by the prosecutor. The mode of interrogation of witnesses is subject to the control of the trial court. Tex. R. Cr. Evid. Ann. 610(a) (Pamph. 1991). Leading questions should not be used during direct examination except as may be necessary to develop the witness' testimony. Id. at (c). To the extent that the questions to which appellant objected were leading, we find no abuse of discretion in the trial court's rulings. These points of error are overruled.

Appellant's last points of error concern jury argument. First, appellant contends the court erred by overruling his objection to the following statement by the prosecutor in his opening argument:

 

Mr. Potter brought out to the fact that this team of Wyatt and Sanchez made some 60 cases. Did he go into each one of them in detail, show you how they were a sham? No. The only evidence that you have is the testimony --

 

MR. POTTER: Your Honor, may it please the court. We feel that it's improper argument on the part of the State to imply that there is a way that we can go into 60 cases and show how each one is a sham. Your Honor, we feel that those would not be relevant inquiry and that they would be subject to objection by the State and ruling to exclude them by the court and therefore, Your Honor, we object to that sort of argument.

 

The prosecutor responded that appellant had "opened this door." The court agreed and overruled the objection, but instructed the jurors that they were to consider the argument "under the evidence and the evidence alone."

The defense strategy in this cause was to challenge the credibility of Wyatt and Sanchez. When he made the statement in question, the prosecutor was responding to defense counsel's efforts to discredit the witnesses during cross-examination. To the extent that this argument improperly sought to place the burden of proof on appellant, it was harmless beyond a reasonable doubt in light of the court's instruction to the jury.

Next, appellant complains that the prosecutor went outside the record when he asked the jury "if [appellant] makes a transaction like that every half an hour or so how much do you think he's making? How much do you think he makes selling?" The evidence was that appellant sold Wyatt four rocks of cocaine for $100 in a transaction that took a few minutes. The prosecutor's argument was a reasonable deduction from that evidence. The court did not err in overruling appellant's objection.

Appellant urges that the prosecutor again went outside the record by telling the jury that "[t]his is a rather typical case, a quick sale in front of a bar late at night." An officer testified that the police received daily reports of drug sales being made openly on the streets. There was testimony that the instant transaction took place in an area known for drug dealing. The prosecutor's remark was a reasonable deduction from this testimony.

Finally, appellant contends the prosecutor misstated the law when, in closing, he said that in order to acquit appellant the jury must believe that Sanchez "lied and fabricated a transaction that really never took place." Contrary to appellant's contention, we do not believe that this was an attempt to place the burden on appellant to prove his innocence. Sanchez testified that he saw appellant sell cocaine to Wyatt. In order to find appellant not guilty, the jury would necessarily have to disbelieve this testimony. No error is presented.

The judgment of conviction is affirmed.

 

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Affirmed

Filed: June 12, 1991

[Do Not Publish]