Hadden v. State

• Decision Date: 19 March 1992
• Docket Number: No. 13-90-323-CR,13-90-323-CR
• Citation: 829 S.W.2d 838
• Parties: Tony HADDEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 838

829 S.W.2d 838

Tony HADDEN, Appellant, v. The STATE of Texas, Appellee.

No. 13-90-323-CR.

Court of Appeals of Texas,

Corpus Christi.

March 19, 1992.

Opinion on Motion for Rehearing April 30, 1992.

Richard L. Manske, Manske & Manske, El Campo, for appellant.

Daniel W. Shindler, Dist. Atty., Matagorda County Courthouse, Bay City, for appellee.

Before GILBERTO HINOJOSA, KENNEDY and DORSEY, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

Appellant was convicted of burglary of a habitation. After considering evidence of enhancing convictions and appellant's conduct in the instant case, the jury assessed punishment at forty years' confinement. We reverse and remand.

The evidence reflects that appellant entered the habitation of Pier (Bubba) Lee, Jr., in Matagorda County, and stole several items, including two deer rifles, three shotguns, a pistol, a VCR, and some money. An accomplice corroborated these facts, and appellant confessed. Certain people who received the stolen goods identified the property and stated that appellant sold the property to them. Evidence of guilt was substantial, and the factual sufficiency of the evidence is not challenged.

Appellant's first point of error alleges that the indictment is defective in two respects: 1) that both a felony and a theft must be alleged in the indictment; and 2) that the elements of the offense were alleged in a different order from that found in the statute.

The indictment alleged that appellant:

did then and there intentionally and knowingly, without the effective consent of Pier Lee, Jr., the owner thereof, enter a habitation and did attempt to commit and commit theft ...

Appellant was charged with burglary of a habitation. TEX.PENAL CODE ANN. § 30.02(a)(3) (Vernon 1990). This statute provides:

(a) A person commits an offense if, without the effective consent of the owner, he:

(3) enters a building or habitation and commits or attempts to commit a felony or theft.

The general rule regarding the sufficiency of an indictment is that the indictment must "state everything necessary to be proved." Davila v. State, 547 S.W.2d 606, 608 (Tex.Crim.App.1977); TEX.CODE CRIM.PROC.ANN. art. 21.03 (Vernon 1989). As the statute quoted above makes clear, to prove burglary the State must establish that the defendant entered the habitation and committed or attempted to commit either a theft or any felony. Allegations that both were committed are not required in the indictment. Davila, 547 S.W.2d at 608. This indictment is not deficient in that respect.

Appellant also argues that the indictment is deficient because it fails to allege attempt and commission of theft in the same order as these elements are set forth in the statute. All that is necessary is that the indictment list the elements of the offense. TEX.CODE CRIM.PROC.ANN. art. 21.03. The indictment did so. Simply changing the order of allegations in the indictment from that in the statute did not render it defective. This indictment sufficiently apprised the defendant with the acts charged, and no confusion or misunderstanding was caused by this insubstantial variation from the statutory language. See Sanders v. State, 642 S.W.2d 860, 862 (Tex.App.--Fort Worth 1982, pet. ref'd). Appellant's first point of error is overruled.

By appellant's second point he complains that reversible error occurred when a police officer testified at trial that appellant had signed other confessions in connection with other crimes. He asserts that this and other improperly offered evidence of extraneous offenses violates TEX.R.CRIM.EVID. 404(b).

The statement of facts reflects that the officer was asked whether he agreed to ask the D.A. for leniency in return for a statement from the defendant. The officer then stated:

A Maybe I should clarify something for you, sir.

Q All right.

A The previous ten days before that, Mr. Hadden gave us approximately eight to ten statements in reference to burglaries he had committed.

Appellant's counsel: I object to testimony on his own here and request that the jury be instructed to disregard it.

The Court: Disregard the prior statement.

During subsequent questioning, the police officer interjected that the defendant was under investigation for an "organized criminal activity charge." In addition, while appellant's counsel was questioning the same officer about the defendant's initials on the confession, the following transpired:

Q Okay. What did you tell him?

A I tell him, 'after you have read this whole statement and you reviewed the statement, would you please look it over, put your initials in the proper places, indicating that you have read everything on this page and understand what you are reading.'

Q Okay. Where do you tell him the proper places are?

A The proper places?

Q Yes.

A He knows where the proper places are. Mr. Hadden has signed numerous statements.

Appellant's Counsel: Your honor, again I am going to object to him testifying about things not being asked, non-responsive. He's doing it in an attempt to prejudice my client and I would ask the court to instruct the jury to disregard it and I would move for a mistrial.

The Court: Listen to his question and answer only his question. The motion for mistrial is denied.

The State argues that this alleged error was not preserved or is harmless because of the overwhelming evidence of guilt.

The proper method of preserving error in the admission of improperly offered evidence is for appellant's counsel to: 1) state a timely specific objection, 2) obtain a ruling on the objection from the trial court, 3) move for an instruction for the jury to disregard, 4) obtain a ruling on the instruction and if sustained, have the jury instructed, 5) move for a mistrial, and 6) obtain a ruling on the motion for mistrial. These steps must be taken in sequence, and counsel cannot object and move for an instruction and mistrial without obtaining a ruling on the objection. See DeRusse v. State, 579 S.W.2d 224, 236 (Tex.Crim.App.1979). ¹

There are exceptions, however, to this rigorous procedure. Objections may be implicitly overruled. For example, in Coe v. State, 683 S.W.2d 431, 435-36 (Tex.Crim.App.1984), the following occurred:

A No sir, they were the other complaining witnesses in the other robberies.

Appellant's counsel: I ask for a mistrial.

The Court: Overruled.

The jury was then instructed to disregard the previous statement. By instructing the jury, the court implicitly sustained the objection. Like this case, Coe involved extraneous offenses. And the Court held this procedure sufficient to preserve error.

In the instant case, appellant preserved error because the trial court implicitly sustained the first objection by instructing the jury to disregard the officer's reference to other "statements." At that point, however, no reversible error occurred because an instruction to disregard generally ² is sufficient to cure error in admission of extraneous offenses. Moody, at 890; Coe, 683 S.W.2d at 436. Thus, the "door was not opened" and error in subsequent references to extraneous offenses was not waived.

Appellant also preserved error the second time the officer testified to other "numerous statements." This time the officer was instructed to answer the questions asked. This implicitly sustained the objection. Coe, 683 S.W.2d at 436. The motion for mistrial was overruled. This preserved error regarding whether the second reference to "other statements" signed by the defendant required a new trial. Id; see also Nixon v. State, 653 S.W.2d 443, 444 (Tex.Crim.App.1983) (overruled motion for mistrial preserved error).

The issue presented is whether it was error for the State, through its witness the police officer, to repeatedly and intentionally present to the jury the fact that appellant made other statements to the police. We find that this was error.

"The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State's pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions." Young v. State, 159 Tex.Crim. 164, 261 S.W.2d 836, 837 (App.1953). The primary rationale for the rule is that the issue in a criminal case is whether the defendant committed the crime alleged, and not whether he or she is a criminal generally, or whether the defendant's history of committing crimes increases the probability that the defendant committed the crime involved in the instant case. See Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168 (1948); Boutwell v. State, 719 S.W.2d 164, 174 (Tex.Crim.App.1985). Exceptions to the rule exist, but are not pertinent here. See TEX.R.CRIM.EVID. 404(b). The State does not contend otherwise. We hold that the repeated and intentional proffer of testimony by the State's witness regarding prior transactions with the police was error in this case. The next issue is whether the error was reversible.

In Harris v. State, 790 S.W.2d 568, 586-88 (Tex.Crim.App.1989), the Court of Criminal Appeals articulated the proper standard of review for determining whether error in a criminal trial was harmless. Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or punishment.

TEX.R.APP.P. 81(b)(2). The scope of review is the entire record. Harris, 790 S.W.2d at 586. The evidence is viewed in a neutral, impartial, and even-handed fashion, and unlike the legal and factual sufficiency standard of review, not in the light most favorable to conviction. Id; (distinguishing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

Harmful error...