Donald Wayne Lindley v. The State of Texas--Appeal from 8th District Court of Hopkins County

NOS. 12-02-00360-CR

12-02-00361-CR

12-02-00362-CR

12-02-00363-CR

12-02-00364-CR

12-02-00365-CR

 
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

DONALD WAYNE LINDLEY,

 
APPEAL FROM THE 8TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
HOPKINS COUNTY, TEXASMEMORANDUM OPINION

Donald Wayne Lindley pleaded guilty to six counts of delivery of a controlled substance. The jury assessed punishment at three terms of ninety years of imprisonment, two terms of ninety-nine years of imprisonment, and one term of twenty years and a $5,000.00 fine. In one issue applicable to each case, Appellant contends the trial court allowed an improper question on cross-examination. We affirm five of the judgments. We modify one judgment to reflect the sentence assessed by the jury, and affirm as modified.

 

Background

On cross-examination of Appellant, the prosecutor asked: "Didn't you think that was bad? It's bad enough you sell dope. But to sell dope next to a school where kids are do you think that's a little bit worse?" Counsel for the defense lodged an objection, stating: "In this situation there's no evidence been introduced in the record that any dope was sold to children at a school." The prosecutor responded, "I'm not alleging anything like that." The trial judge then commented, "I'll sustain if that were the statement, but I don't believe that was it." The prosecutor clarified, "The statement was selling dope in an area where the school is next door." Appellant answered, "Yeah, I think that's bad, sir."

Earlier, also during cross-examination of Appellant, he described the locations of his three drug suppliers. He explained that someone named Willie supplied the crack cocaine for the first two drug sales to the undercover officer. He said that Willie lived in an apartment complex on Calvert Street, next to the school. On direct examination of Matthew Hooper, the undercover officer who made five of the six buys involved here, the officer explained that he first met Appellant at a city park. He explained that the park has playground equipment and basketball courts and that "children often go there." He then explained the location of the first two drug buys. He and Appellant went to an apartment complex on Calvert Street, right next to the intermediate school. No objections were made to any of these references to the school or children playing in the park.

 

Issue Presented

In his sole issue, Appellant asserts the trial court erred by allowing the State to imply that he was selling drugs to school children. Appellant argues that, in light of the absence of any evidence that he actually sold drugs to children, the prosecutor's reference to a school, made during cross-examination of Appellant, was made merely to inflame the minds of the jurors so they would give him a greater sentence.

 

Discussion

First, we note that Appellant's objection misinterpreted the prosecutor's question. The prosecutor asked Appellant if he thought it was bad to sell drugs near an area where children are. He did not ask if the drugs were being sold to children, or imply that they were. Further, the objection was vague. A specific objection is required to inform the trial judge of the basis of the objection. Young v. State, 820 S.W.2d 180, 185 (Tex. App.-Dallas 1991, pet. ref'd). A general objection is tantamount to no objection. McCarley v. State, 763 S.W.2d 630, 632 (Tex. App.-San Antonio 1989, no pet.).

The trial court's comment indicates it realized the complaint had no merit. However, the court never ruled on the objection. As soon as the prosecutor clarified his question, Appellant answered without waiting for a ruling. In order to preserve alleged error, the complaining party must obtain an adverse ruling from the trial court. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Additionally, both Appellant and Officer Hooper had testified, without objection, that two of the offenses occurred at an apartment complex next door to a school. Officer Hooper also testified that he and Appellant met in a park where children play. Error is defaulted when the same evidence is presented elsewhere without objection. Nenno v. State, 970 S.W.2d 549, 563 (Tex. Crim. App. 1998).

Nonetheless, we determine that the prosecutor's question was relevant and not improper. The question at issue arose during cross-examination of Appellant at the sentencing phase of his trial. A witness may be cross-examined on any matter relevant to any issue in the case. Tex. R. Evid. 611(b). Whether the sale of illegal drugs takes place in isolation or where innocent bystanders, particularly children, might be affected is a factor the jury might legitimately consider when determining the appropriate sentence to assess a drug dealer. The State is allowed to argue to the jury that they may protect the community by assessing a lengthy prison sentence. Tejerina v. State, 786 S.W.2d 508, 513 (Tex. App.-Corpus Christi 1990, pet. ref'd). It is common knowledge that the possession and sale of narcotics near a school threatens the health and safety of the children. United States v. Crew, 916 F.2d 980, 983 (5th Cir. 1990) (recognizing that any drug-related activity in the vicinity of a school endangers children). The State's interest in protecting children has led to passage of a statute allowing enhanced penalties for drug-related offenses committed near school property. See Tex. Health & Safety Code Ann. 481.134 (Vernon 2003). In asking the complained-of question, the State was indicating to the jury that it should consider the safety of any nearby children when assessing Appellant's punishment. We conclude it is permissible to allow the jury to hear the defendant agree that it is "bad" for him to sell drugs near a school. We overrule Appellant's sole issue.

Conclusion

Our review of the record reveals that the judgment in trial court cause number 9915453 does not reflect the sentence assessed by the jury. The jury assessed a sentence of twenty years and a $5000.00 fine in cause number 9915453, while the judgment indicates a ninety-year term of imprisonment together with a $5000.00 fine. Where the formal judgment does not reflect the jury's verdict as to punishment, the appellate court has authority to modify the lower court's judgment by correcting it when it has the necessary information before it. Tex. R. App. P. 43.2(b); Stokes v. State, 688 S.W.2d 539, 542 (Tex. Crim. App. 1985). We hereby modify the judgment in cause number 9915453 to reflect a sentence of twenty years of imprisonment and a $5000.00 fine. As modified, the judgment in cause number 9915453 is affirmed. We also affirm the trial court's judgments in each of the five other causes before us.

SAM GRIFFITH

Justice

 

Opinion delivered August 27, 2003.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

 
(DO NOT PUBLISH)