Hopkins v. State, 44388

• Citation: 480 S.W.2d 212
• Decision Date: 22 March 1972
• Docket Number: No. 44388,44388
• Parties: Gregory K. HOPKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 212

480 S.W.2d 212

Gregory K. HOPKINS, Appellant, v. The STATE of Texas, Appellee.

No. 44388.

Court of Criminal Appeals of Texas.

March 22, 1972.

Rehearing Denied June 7, 1972.

M. N. Garcia, Austin, for appellant.

Robert O. Smith, Dist. Atty., Phoebe Lester, Asst. Dist. Atty., and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for unlawful possession of heroin. Trial was before a jury, with punishment assessed by the court at confinement for five years.

The evidence reflects that Frank Marquez, a former heroin addict, contacted Sergeant Bobby Sides of the Austin Police Department in regard to making some undercover purchases of heroin for the police. As a result of the conversation, Marquez came to the Austin Police Station, where he was searched and given five dollars with which to make the purchase. Officer Sides and Marquez then left the police station in an automobile which had been specially prepared for undercover work. Marquez drove, and Officer Sides rode in the trunk, which had been outfitted with a radio for communication. In addition, several holes had been bored in the rear fenders of the car, and the taillight assembly had been removed so that the occupant of the trunk could see out. Sides and Marquez proceeded to a location on East Eleventh Street in the city of Austin, where the car stopped and Marquez got out and approached a group of people who were standing on the sidewalk and asked if he could buy some heroin. One member of the group, Bobby Guice, then signaled to appellant, who was located a short distance up the street in a car. The appellant then came to the location where Marquez and Guice were standing. Guice introduced Marquez to the appellant and told him that 'He (appellant) is allright.' Marquez then gave the five dollars to Guice, who gave it immediately to appellant. The appellant then handed the capsule of heroin to Marquez. Marquez returned to the car and drove away.

From his vantage point in the trunk, Officer Sides was unable to discern the the object which appellant gave to Marquez, but shortly thereafter, the car stopped and Officer Sides took the capsule from Marquez, who testified that it was the same one which he had received from appellant. Also, as Marquez returned to the car, he opened his hand, which held the capsule, so that Sides could see it from the trunk.

Appellant raises two grounds of error. In his first ground he contends that the trial court erred in not granting his motion for mistrial. He contends that certain testimony by Marquez was unduly prejudicial and that it improperly concerned his character and reputation. In particular, he complains of the following portions of Marquez' testimony:

'A Yes, sir. And we talked about an undercover buy for some known dope pushers, you know, that I know.

'Q That you had already had knowledge of?

'A Yes, sir.

'MR. GARCIA: Your Honor, I want to object to any reference to any outside activities by this Defendant, because we are here concerned with this particular Defendant, and I object and except to any extraneous matter.

'THE COURT: The conversation at the Police Department is hearsay. I will sustain the objection.

'Q All right, Frank, as a result of your discussions with the Austin police officers, what, if anything, happened at that time?

'A Yes, sir, we had decided to--we decided to go and try to find some of the people I know who were pushing dope.

'Q All right, and what took place then, if anything?

'A Well, yes, sir, I was searched.

'MR. GARCIA: Your Honor, I object and except to the word used, pushing. I think it is highly prejudicial in this case, and I ask the Court to have it stricken from the record and instruct the jury not to consider it for any purpose.

'THE COURT: Objection will be overruled.

'MR. GARCIA: Note our exception.

'A Yes, sir. Well, I had seen him before, you know. I know that he run around with Bobby Lee Guice, and they sell dope, you know, so--

'MR. GARCIA: Your Honor, I am going to object. This is completely prejudicial as to what they did, not specifically referring to this Defendant, and has nothing to do with this case. It is prejudicial, and I ask the Court to instruct the jury not to consider it for any purpose.

'MR. IRELAND (Assistant District Attorney): Your Honor, we move that that be stricken from the record.

'MR. GARCIA: May we have an instruction from the Court, Your Honor, to the jury?

'THE COURT: Ladies and gentlemen, you will disregard the last question and answer, for any purpose whatsoever.

'Q You say anything to Gregory Kent Hopkins?

'A Yes, sir, I did. You see, at the time that I was there talking to them colored boys, one of them came over there and scored.

'Q Now, scored?

'A To buy some dope.

'MR. GARCIA: Your Honor, I am going to object. This is highly prejudicial. This is the same kind of question and answer I objected to a minute ago, and we ask the Court to instruct the District Attorney not to ask this type of question.

He knows it is prejudicial, and we ask the Court to--

'THE COURT: I will allow the conversation if the Defendant was present and overheard it. If you will establish that as a basis, it is admissible; if not, it is hearsay, and not admissible. Please lay the proper predicate.

'A Oh, you see, I approached Greg right there, you know, and I asked him, 'Say, have you got any dope?'

He said, 'No, man, I haven't got anything,' you know.

Well, he didn't know me, you know. I would have done the same thing if he would have approached me. I probably wouldn't have sold it because--

'MR. GARCIA: Your Honor, I object. This is rambling on the part of the witness. We don't care what he would have done, and to say what he would do under similar circumstances if somebody approached him for buying dope has nothing to do with this Defendant.

'THE COURT: Objection sustained.

'MR. GARCIA: May we have an instruction to the jury, Your Honor, to disregard that complete statement by the Defendant?

'THE COURT: Ladies and gentlemen, disregard the last question and answer.

'A I started talking to another colored boy, and Gregory went off. He headed eastbound and--

'Q On Eleventh Street?

'A On Eleventh Street.

'Q All right.

'A About two or three minutes later, Bobby Lee came across the street from Eleventh.

'Q Bobby Lee? Now, who is Bobby Lee?

'A. Guice.

'Q All right.

'A And he knew me, you know. He had sold to me, so--

'MR. GARCIA: Your Honor, we are not interested in what somebody else has done in this case. We are interested in what has happened in this case, and it is all prejudicial to refer to any actions outside of this particular Defendant, and I ask the Court to instruct the jury not to consider it for any purpose.

'THE COURT: Objection sustained.

'MR. GARCIA: May we have an instruction now?

'Q All right, Frank, just testify as to what you saw and what you did.

'THE COURT: Ladies and gentlemen, consider only the actions.

'MR. GARCIA: Your Honor, at this time, we ask for a mistrial on the grounds that no instruction to the jury can erase from the jury's mind any prejudicial evidence that has been heretofore testified to by this witness, and we ask for a mistrial.

'THE COURT: Request denied.'

Appellant's first objection was sustained by the court. No request for an instruction to the jury to disregard the answer was made, nor was a mistrial requested at that time. Appellant's counsel then objected to the word Pushing, but the objection was overruled. The next objection was sustained, and the jury was instructed to disregard the question and answer. No request for mistrial was made at that time. The next objection was sustained pending a prior predicate. The next objection was overruled on the ground that the witness was testifying as to what he had observed. The objection was not on the ground that it indicated an extraneous offense or that it concerned the appellant's character, which is the ground raised on appeal, but on the basis that the witness was not testifying from first-hand knowledge. The next objection was sustained, and appellant's request for an instruction to the jury to disregard the question and answer was granted. The next objection, which was based on the ground that the witness' answer concerned the actions of persons other than the defendant was sustained. Appellant's request for an instruction to the jury was granted. At this point, appellant made his motion for mistrial. Apparently the motion was based upon the ground that the cumulative effect of all of the various parts of Marquez' testimony to which objection was taken were so prejudicial that only mistrial would be the proper remedy. The motion was denied. The next objection was overruled.

In regard to those instances in which appellant's objections were sustained and the request for an instruction was granted, and where no request for mistrial was made, there was no error. Appellant received all the relief which he requested. Moon v. State, 465 S.W.2d 172 (Tex.Crim.App.1971); Jenkins v. State, 435 S.W.2d 505 (Tex.Crim.App.1968).

Also, the refusal to grant appellant's motion for mistrial was not error. It has long been held by this Court that the error in asking improper questions or in admitting improper testimony may usually be cured by the withdrawal of the testimony and an instruction to the jury to disregard the same, except in extreme cases where the question or evidence is of such a damaging or prejudicial nature as to suggest the impossibility of withdrawing the impression produced in the minds of the jury. Casey v. State, 456 S.W.2d 945 (Tex.Crim.App.1970); White v. State, 444 S.W.2d 921 (Tex.Crim.App.1969); Wheeler v. State, 413 S.W.2d 705 (Tex.Crim.App.1967); Dove v. State, 402 S.W.2d 913 (Tex.Crim.App.1966); Gaines v. State, 400 S.W.2d 925 (Tex.Crim.App.1966); Harris v. State, 375 S.W.2d 310 (Tex.Crim.App.1964); Miller v. State, 79 Tex.Cr.R. 9, 185 S.W. 29 (1916); Hatcher v. State, 43 Tex.Cr.R....