Brazzell v. State
| Decision Date | 14 June 1972 |
| Docket Number | No. 45415,45415 |
| Parties | Pete BRAZZELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Bobby Joe Mann, Mineral Wells, for appellant.
Sam Cleveland, Dist. Atty., Stephenville, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DALLY, Commissioner.
The conviction was for the sale of heroin; the punishment was assessed by the jury at forty years imprisonment.
Appellant was tried upon a plea of guilty before a jury. The evidence shows the appellant on March 1, 1971, in Mineral Wells, sold narcotics to Bobby Adams, an undercover agent for the Texas Department of Public Safety.
The first ground of error urged is that 'The court erred in allowing evidence of inferred extraneous offenses being prior sales of marihuana, to be admitted to the jury over an objection by the appellant, even though a motion in limine had been filed with the court and granted by the court precluding the submission of such evidence.'
The appellant is here attempting to rely upon a motion In limine to preserve error to the admission of testimony which he contends was not admissible. Generally, a motion In limine will not preserve error to the admission of inadmissible evidence. The violation of a motion In limine may entitle a party to relief, but any remedies available with regard to such a violation are with the trial court. If its order has been violated, the trial court may apply the sanctions of contempt or take other appropriate action. But for error to be preserved on appeal with regard to the admission of inadmissible evidence, objection thereto should be made at the time the evidence is offered.
In this case, the appellant had filed a motion In limine requesting the court 'to instruct the District Attorney to make no inquiry, suggestion, or allusion to the matters hereinafter stated in the presence of the jury without having first taken up such matters with the court, outside of the presence of the jury and having first obtained a ruling from the court which would permit the admission of the same or a part thereof into evidence.' The motion In limine also requested that the witness Bobby Adams be instructed not to volunteer information or make any statement in the presence of the jury with reference to matters set out in the motion, one of which was 'That there are other indictments and alleged extraneous offenses with which the defendant is charged and/or alleged to have committed.'
During the trial under direct examination, the undercover agent Adams testified that while he, Adams, was in his car in Mineral Wells, the appellant approached him and then the following occurred:
'Q. (By Prosecutor) What did he say?
'A. We spoke, I asked him where he was going and he said he was going to Fort Worth, and then he asked if I wanted to buy some more stuff.
'Q. If you wanted to buy some more stuff? And what was your answer when he said that to you?
'A. I told him yes.
'Q. You told him yes. Well, go ahead and tell--
(Defense Attorney) 'Your Honor, objection.
'Q.--What occurred relative to that?
(Defense Attorney) 'Objection, Your Honor. (Thereupon, the attorneys approached the bench.)
'THE COURT: Overruled.
(Defense Attorney) 'Let the record note exception of the defendant to the action of the court in denying its request for hearing out of the presence of the jury with reference to the motion in limine and the witness's answer to the last question of the prosecution.'
The record does not reveal what was said at the bench and it is not shown that the appellant's objection was that the testimony was evidence of an extraneous offense. We conclude that the error, if any, was not preserved. See and compare Beard v. State, 458 S.W.2d 85 (Tex.Cr.App.1970); Padgett v. State, 364 S.W.2d 397 (Tex.Cr.App.1963); Gonzales v. State, 172 Tex.Cr.R. 449, 361 S.W.2d 393 (1962); Gentry v. State, 105 Tex.Cr.R. 629, 290 S.W. 543 (1926). This ground of error is overruled.
In appellant's second ground of error he alleges 'The court erred in refusing to allow Mr. Mann, one of the court-appointed counsel for the appellant, to ask a prospective juror, without...
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