Hodge v. State

• Decision Date: 28 April 1982
• Docket Number: Nos. 61,358-61,362,No. 2,s. 61,358-61,362,2
• Citation: 631 S.W.2d 754
• Parties: James Ronald HODGE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 754

631 S.W.2d 754

James Ronald HODGE, Appellant, v. The STATE of Texas, Appellee.

Nos. 61,358-61,362.

Court of Criminal Appeals of Texas, Panel No. 2.

April 28, 1982.

Kerry P. Fitzgerald, Dallas, for appellant.

Henry Wade, Dist. Atty., Maridell J. Templeton and Sue L. Lagarde, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and W. C. DAVIS and TEAGUE, JJ.

OPINION

ONION, Presiding Judge.

These are appeals from five convictions for the delivery of heroin, where the punishment was assessed by the jury at eleven (11) years' confinement in each case following a guilty verdict.

Appellant contends in his first three grounds of error that the prosecutor committed reversible error in her argument during the penalty stage of the trial "by inviting the jury to apply the parole law in assessing punishment."

The pertinent portion of the argument follows:

"MS. LA GARDE (Prosecutor): ... Ladies and Gentlemen, today you are the they that is being referred to and you have the chance now to do something about the dope pushers in Dallas County, at least insofar as this Defendant in the five cases that you found him guilty of. You have the chance to assess a substantial number of years and at least keep him off the streets for whatever period of time to serve the sentence that you decide is appropriate in this case.

"MR. TETER (Defense Counsel): We object to the statement of counsel, it violates-we object to the last statement of counsel insofar as it is a direct violation of the directions of the Court. Judge, I don't want to repeat it, it will only make it that much worse.

"MS. LA GARDE: Your Honor, I have no way of knowing what sentence they will assess.

"MR. TETER: Your Honor, if you want to rule on it, we would ask the Jury to be excused while the Court Reporter reads to you the- "MS. LA GARDE: Judge, in the interest of time I will withdraw the portion of my argument.

"MR. TETER: I will ask for a mistrial.

"THE COURT: The Court will sustain the objection and overrule the motion for the mistrial. Go ahead.

"MS. LA GARDE: I have no way of knowing what the sentence you people will deem appropriate in this case so therefore, I have no way of knowing how long he will serve because I don't know what you are going to assess.

"MR. TETER: We object to the same thing, it is purely a reference to what you instructed the Jury not to consider.

"THE COURT: Ladies and Gentlemen, I will instruct you that it is no concern of yours how long a person will serve any sentence you decide to impose, that is in the Court's charge.

"MR. TETER: We will have to move for a mistrial.

"THE COURT: The Court will overrule." (Emphasis supplied.)

It is well established in this state that an argument designed to circumvent the trial court's jury instruction not to discuss the matter of parole in assessing punishment is improper and it serves no useful or legitimate purpose. Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); Woerner v. State, 576 S.W.2d 85 (Tex.Cr.App.1979); Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978); Jones v. State, 564 S.W.2d 718 (Tex.Cr.App.1978); Kincaid v. State, 534 S.W.2d 340 (Tex.Cr.App.1976); Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975); Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1969); Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App.1963). However, we do not find that the prosecutor's remarks constituted reversible error.

Here the appellant had been convicted of five cases of delivery of heroin. The State had a right to argue that the jury assess a substantial number of years in punishment to keep him "off the streets." There was no mention of the parole laws or that the appellant would gain an early release. We disagree that the argument was an allusion to the parole law. See and cf. Givens v. State, 554 S.W.2d 199 (Tex.Cr.App.1977).

Even if it could be argued that the prosecutor was on verge of making improper remarks before being interrupted by objections, we will not speculate as to what her remarks might have been. Carrillo v. State, supra. Further, even if it could be argued that the statements were a subtle reference to the parole law, we note that the court sustained the first objection and in response to the second objection instructed the jurors that it was no concern of theirs how long a person will serve a sentence that is imposed, and that such instruction was in the court's charge. Any possible error was cured by the court's prompt action. The court did not err in overruling the mistrial motions. Appellant's contention is overruled.

Next, appellant contends that the trial court erred in denying his motion for a mistrial when a police officer indicated that appellant was a known narcotic dealer.

The testimony follows:

"MS. LA GARDE: I would like for you to describe briefly to the Jury how that particular undercover operation worked?

"WITNESS: Basically the Drug Abuse Section of the Dallas Police Department acquires the services of another officer from outside of our division, in this case it would be a black officer from the Central Patrol Division, that officer would be placed on the street in an undercover capacity to seek out and make heroin buys from known heroin pushers within the Dallas City Limits.

"MR. TETER: Your Honor, we object to him implying that this Defendant is a known heroin pusher, it is totally unresponsive and it is deliberate on his part and it prejudices this man's right to have a fair trial.

"THE COURT: Well, I will sustain the objection.

"MR. TETER: We would ask the jury to be instructed to disregard it.

"THE COURT: Ladies and Gentlemen, disregard the answer of this witness to the last question.

"MR. TETER: We would ask that the witness be instructed to conform with the rules of evidence which he is well experienced and not offer any more unresponsive statements of that nature.

"THE COURT: Just try to answer the question.

"MR. TETER: We would ask for a mistrial.

"THE COURT: The Court will overrule."

The answer referred to general procedures in the police department regarding undercover work. It was responsive to the question asked. It did not necessarily, standing alone, at the time the question was asked, refer to the appellant as a known heroin pusher. The objection was sustained and the jury was instructed to disregard. The instruction was sufficient to cure the error, if any. Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Dugger v. State, 543 S.W.2d 374 (Tex.Cr.App.1976); Hernandez v. State, 530 S.W.2d 563 (Tex.Cr.App.1975).

In appellant's next five grounds of error, he contends that the court erred in admitting the testimony of E. H. Foerester that State's Exhibits Nos. 1A, 2A, 3A, 4A and 5A contained heroin because the State failed to lay the proper predicate pursuant to the Business Records Act, Article 3737e, V.A.C.S., and because the introduction of Foerester's testimony violated the best evidence rule.

State's Exhibits Nos. 1A, 2A, 3A, 4A and 5A were plastic packages each containing a powdery substance. Foerester, an assistant toxicologist with the Dallas County Criminal Investigation Laboratory, testified from the records of the laboratory as to the results of the analysis of the State's Exhibits. The results showed that the substance in each package was heroin.

This court has consistently held that the Business Records Act, Article 3737e, supra, is applicable to criminal cases. Kemner v. State, 589 S.W.2d 403 (Tex.Cr.App.1979); Simmons v. State, 564 S.W.2d 769 (Tex.Cr.App.1978); Williams v. State, 549 S.W.2d 183 (Tex.Cr.App.1977). Where the proper predicate has been laid, this exception to the hearsay rule is to be liberally construed. Kemner, supra; Simmons, supra; Williams, supra. Specifically, appellant complains that Article 3737e, § 1(a) and (b), supra, were not complied with prior to Foerester testifying as to the results of the analysis.

Appellant's objection at the trial court was a general objection that the proper predicate had not been laid pursuant to the Business Records Act. Appellant did not indicate in his objection that § 1(a) and (b) of Article 3737e had not been established. Ordinarily error such as this may be cured or corrected if the issue is promptly and specifically brought to the attention of the trial judge. Williams, supra. Since the objection made in the trial court was not the same as urged on appeal, appellant has not properly preserved his argument for review. Williams, supra.

Appellant also complains that the laboratory reports were the best evidence and as such should have been introduced.

Foerester testified from the reports. Appellant's counsel cross-examined Foerester from the reports. If the accuracy of the records were in doubt, then counsel could have raised the question. Alvarez v. State, 508 S.W.2d 100 (Tex.Cr.App.1974); Cozby v. State, 506 S.W.2d 589 (Tex.Cr.App.1974). Appellant's contention is overruled. ¹

In appellant's next five grounds of error he contends that the State failed to prove that the substance sold by appellant was heroin. Specifically, appellant argues that there was no expert testimony to prove that the powdery substance sold to the undercover officer was heroin. Appellant's contention is totally without merit. The State, through its witness, E. H. Foerester, clearly established that the powdery substance in State's Exhibits Nos. 1A-5A was heroin.

Appellant also claims the trial court committed reversible error in preventing him from cross-examining Officer Mack, the undercover agent, as to his financial condition at the time cases were filed against the appellant and others in order to demonstrate bias and motive.

Appellant first attempted to get the court to permit him to show Officer Mack's financial condition, his divorce, the details of his divorce, child support payments, etc. The court refused to permit such testimony. Later in perfecting his bill of exception appellant simply elicited...