Bates v. State
| Citation | 643 S.W.2d 939 |
| Decision Date | 15 December 1982 |
| Docket Number | No. 60512,No. 2,60512,2 |
| Parties | Leroy BATES, Appellant, v. The STATE of Texas, Appellee |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Ross Teter, Dallas, for appellant.
Henry Wade, Dist. Atty., and Steve Wilensky, and Brady Sparks, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Attys., Austin, for the State.
Before ONION, P.J., and TOM G. DAVIS and CLINTON, JJ.
Appeal is taken from a conviction for delivery of heroin; the jury assessed punishment is twenty five years. Appellant advances fourteen grounds of error. We agree that there is reversible error in the case and, accordingly, reverse.
The indictment in the case reveals the prosecution to have been based on the single allegation that appellant "on or about the 6 day of October, [1977] ... did unlawfully, knowingly and intentionally deliver a controlled substance, namely: HEROIN, to R.J. Mack." Yet, the evidence offered by the State, transcribed among more than 500 pages of testimony and argument, reveals the prosecution's conviction that proof of appellant's mere delivery of two pink capsules to undercover narcotics agent Mack on the date alleged would not suffice. Instead, Officer Mack was called to the stand for the initial purpose of detailing his participation "in an undercover operation beginning about the end of August and stretching on into sometime in late November of ... 1977."
Over strenuous and repeated objection, the trial court permitted the prosecutor in the first minutes of trial to elicit testimony regarding Mack's "responsibilities and obligations ... with the undercover narcotics bureau," ("to infiltrate drug traffic in the City of Dallas to seek known drug dealers in the city and crime perpetrated upon the citizens of Dallas County"); and the "purpose" of the undercover operation, ("to seek dealers in the community to cut off some of the main line so that some of the heroin, drugs would not be so readily available for the people that were using drugs, and to possibly cut some of the crimes that were being inflicted upon the community"). Later, Officer Mack's supervisor, J.D. James, was permitted to continue in this vein; asked the "purpose" of the undercover operation, James replied it was "to make heroin cases on heroin pushers." The prosecutor then asked "why" the witness would "go after the heroin pusher or dealer," to which James replied, "It's number one, priority drug for drug abuse to be working on for the drugs itself [sic], and also for the implications that it has in other crimes such as burglaries 1 and--." At this point defense counsel's objection was sustained, the jury was instructed but a motion for new trial was denied. Immediately, the prosecutor continued:
"Q: Would it be fair to say that going after heroin pushers has a very high priority in reducing crime?"
Appellant's objection to this question was overruled. 2
Undercover officer Mack was also permitted to testify over objection, that he had "personal knowledge" of heroin transactions occurring at two Dallas locations, one on Bickers Street and another on El Benito. 3 He reported he first met appellant on September 15th at the latter location, then saw appellant again at the same place on September 19th. But additionally, Mack met with appellant "some six times" at the Bickers address. 4 "As a result of" his conversation with appellant on September 19th, Mack testified he thereafter was looking for appellant in his "official capacity as an undercover narcotics agent" for the "purpose" of making a heroin purchase from him. The six other times the witness met with appellant were rehashed, all over objection, and the witness this time gave each date, the time of day, the Bickers Street location and the length of time he was in appellant's presence. 5
After having his witness again identify appellant as the person he knew to be "Tom Thumb," the prosecutor asked Mack whether he later learned the appellant's name was Leroy Bates. On Mack's affirmative answer, the prosecutor asked whether the witness "had occasion to later confirm this name and other identification by photographs." After appellant's objection was overruled, the prosecutor asked, "was this a photograph shown to you by your supervisor J.D. James?" A defense objection was again overruled. Leaving this line of testimony for the moment, the prosecutor returned to it when James was put on the stand:
The 55-year-old appellant took the stand in his own behalf. He testified that he had been in the "junking" business for the preceding two years. 7 According to appellant, in September of 1977, he needed money to buy some auto parts he had located in Greenville and believed he could double his money on. So he went to an acquaintance, Eugene "Chip" Townsend, for a loan. Townsend said he did not have it, but knew someone else who would lend it to appellant, and took him "to the house that they showed on one of the pictures," a "gambling house" at the El Benito Street address. Townsend introduced appellant to a man named "Black Tommy" who appellant thought was really named Tommy Walkers. 8
"Black Tommy" agreed to loan appellant $250.00 if appellant would agree to pay him $300.00 within five days. When appellant went to Greenville for the auto parts, however, they had been sold to someone else. So appellant used the money to pay bills and buy groceries. 9 When the time came to repay the loan, appellant went to Townsend to explain he was unable to repay it; Townsend again took him to "Tommy." "Tommy" became angry and told appellant he killed people who failed to pay him his money. Finally, "Tommy" told appellant he had some "dope" the latter could "get rid of" for him, and said he was going to put appellant "in with Chip." Appellant was given $150.00 and told to go rent the house on Bickers, which he did.
According to appellant, he was instructed to meet daily with "Chip" Townsend; when he did, Townsend would give him some capsules and tell him to "stay in this house," that he (Townsend) would send people by. 10 In the evening, appellant turned any money and remaining capsules over to Townsend. Appellant conceded he knew the pills contained "dope," but vehemently denied he knew it was heroin. 11 He testified that on October 6, 1977, no one came by other than R.J. Mack, and at that time he gave Mack two capsules for $24.00.
On cross examination, the prosecutor elicited from appellant the fact that he had stayed at the house for approximately three weeks or a little longer, but did not know how many people he had sold "these pills to." Then, apparently in response to appellant's testimony that he did not know the "dope" was heroin, the prosecutor began asking him about when he had become aware he was charged with "the sale of heroin." Appellant testified that he knew what he was in jail for after his arrest, but that he did not look at the indictment served on him right away. Appellant again told the prosecutor he did know what he was charged with, then, illustrative of the tenor of the entire trial, the following transpired:
Q [By STATE]: As a matter of fact you received five copies of the indictments, didn't you?
Q [By STATE]: (interposing) As a matter of fact, you are charged at the present time with the sale of heroin in five separate cases, are you not?
Q [By STATE]: Now, just to get it straight, didn't you think that was serious?
A: Sure I thought it was serious."
In his second and third grounds of error, appellant complains of the trial court's permitting the State to adduce evidence that he had committed four other first degree felony offenses and was presently under indictment for those offenses. Appellant argues, citing numerous authorities, that this evidence was not probative of any issue raised by his defense. The State retorts that the extraneous offenses--all of which were sales of heroin committed within a month of the primary offense--were rendered admissible on the issue of "knowledge" after appellant testified on direct examination that he knew he was selling capsules of "dope" but had no knowledge that they contained heroin, citing Butler v. State, 509 S.W.2d 873 (Tex.Cr.App.1974). As for the trial judge's position on the matter, in his charge, the jury was instructed that testimony regarding the defendant's commission of "offenses other than the offense alleged against him in the indictment in this case," could be considered for no purpose other than in "determining the motive, intent, or identity of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, ...." 12
It is an established generic principle of evidence that proof of prior specific acts of misconduct, similar happenings or extraneous transactions committed by a party is not probative of the contested material issues in the case on trial, and therefore inadmissible. See generally Sanders v....
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