Johnson v. State, A14-91-00457-CR

• Decision Date: 17 December 1992
• Docket Number: No. A14-91-00457-CR,A14-91-00457-CR
• Citation: 846 S.W.2d 373
• Parties: Maxie Clinton JOHNSON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 373

846 S.W.2d 373

Maxie Clinton JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. A14-91-00457-CR.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 17, 1992.

Rehearing Denied Jan. 14, 1993.

Petition for Discretionary Review Granted in Part and

Remanded in Part May 12, 1993.

Charles Freeman, Houston, for appellant.

Rikke Burke, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

SEARS, Justice.

This is an appeal from a conviction for the offense of delivery of a controlled substance. The jury assessed punishment at six years probation. We affirm.

On January 25, 1990, Officer Davis, an undercover Houston Police Officer, approached a residence at 11002 Long Gate Street to conduct a narcotics investigation. Members of the Southeast Tactical Unit Raid Team waited in a van a few blocks away. Officer Davis knocked on the door, and was asked by Appellant what he needed. The officer replied that he wanted a "dime," which is street slang for 1/8 of a gram of crack cocaine. Appellant told Ronald Harden, a State's accomplice-witness, to get the man "what he wanted." Harden got a rock of cocaine and gave it to the officer. The officer purchased the cocaine with a previously photocopied ten dollar ($10) bill. Officer Davis returned to his car, and radioed to the Raid Team that he had made a narcotics purchase.

The Raid Team immediately approached the residence at 11002 Long Gate. The door was closed and locked. Without knocking on the door or requesting permission to enter, the officers used a battering ram to break down the door and gain entry. Once inside, they found Appellant standing next to the kitchen stove, which had crack cocaine lying on top. Appellant was initially placed under arrest for possession of a controlled substance. When searched, the police found the previously photocopied ten dollar ($10) bill in his pocket. The officers discovered crack cocaine, a sawed-off shotgun and a .25 caliber automatic pistol at the scene of the arrest. Appellant brings thirty-nine points of error.

In points of error two through twenty-nine, Appellant complains that he has been denied a fair trial because resummoned and/or rescheduled jurors were placed in his array. Appellant has shown no violation of either State or Federal law by the Court in allowing individuals who had rescheduled their jury duty, to serve on this array. Further, he has demonstrated no harm. Being rescheduled for jury duty does not make an individual unfit for service. Further, it in no way affects one's ability to render a true and fair verdict. Appellant's attorney has brought these identical issues before this Court in two prior appeals. In two unpublished opinions ¹, this Court ruled that a defendant is not denied a fair trial simply because individual jurors on his panel have been rescheduled for jury duty, or previously excused from jury duty.

Appellant also made challenges to the array and challenged individual jurors for cause. A challenge to the array must be made pursuant to TEX.CODE CRIM.PROC.ANN. art. 35.07 (Vernon 1992). Article 35.07 provides:

Each party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or acquittal.

Appellant neither presented evidence to the trial court which would comply with Article 35.07, nor evidence which would establish a valid challenge for cause. Accordingly, we overrule points of error two through twenty-nine.

In his first point of error, Appellant contends that he has been deprived of a sufficient record on appeal. He requested that the Clerk of the trial court include certain juror information in the transcript in order to support his position that the make-up of the array denied him a fair trial. Appellant presented none of this information to the trial court. If an appellant desires an appellate review of evidence, he must have offered that evidence at the trial court level for inclusion in the record on appeal. Miller v. State, 736 S.W.2d 643, 648 (Tex.Crim.App.1987). It is evident from the record that the evidence Appellant requested be included as part of the transcript was never entered into evidence. Therefore, that information is not before this Court for our review. We overrule Appellant's first point of error.

In point of error number thirty, Appellant claims that the trial court erred in overruling his "best evidence" objection to State's Exhibit 1.

State's Exhibit 1 was a photocopy of the ten dollar ($10) bill used to make the narcotics purchase. Officer Davis testified that the copy "fairly and accurately portray[ed] the $10 ... bill ... used on that day." He stated that the original bill was unavailable because the "money" is reused until it is either lost or returned to the City at the end of the month. He did not know its whereabouts at the time of trial. Appellant objected to the admission of the copy, based upon the "best evidence rule."

TEX.R.CRIM.EVID. 1004 provides that "the original is not required and other evidence ... is admissible if ... [the] originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith." The purpose of Rule 1004 is to allow the admission of the "best obtainable evidence of [a document's] contents, if the document cannot as a practical matter be produced." Ortiz v. State, 651 S.W.2d 764, 766 (Tex.Crim.App.1983). Officer Davis established that the loss of the original was not intentional, and that State's Exhibit 1 was a fair and accurate copy. We overrule Appellant's thirtieth point of error.

In his thirty-first point of error, Appellant contends that the State violated TEX.R.CRIM.EVID. 611, by allowing Officer Davis to compare an item in evidence with an item not in evidence.

During redirect examination, the prosecutor asked Officer Davis to compare the serial number on State's Exhibit 1 with the serial number in the offense report, which identified the bill found in appellant's pocket. The Officer, without reading the serial number aloud, testified that they were "one [in] the same numbers." Appellant's counsel objected that this was beyond the scope of Rule 611.

TEX.R.CRIM.EVID. 611 provides that:

if a witness uses a writing to refresh his memory ... [then] an adverse party is entitled to have the writing produced ... to inspect it, to cross examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

Rule 611 is an "entitlement" rule. When invoked, it entitles a party to production, inspection, cross examination on and introduction of the writings reviewed by a witness. Young v. State, 830 S.W.2d 122, 124 (Tex.Crim.App.1992).

The offense report was produced for the Appellant, and he had ample opportunity to inspect it, cross examine Officer Davis about it, and introduce into evidence any relevant portions. It was not error for the Officer to check the report and testify that the serial number in the report and on State's Exhibit 1 were identical. Further, Appellant has shown no harm. We overrule point of error thirty-one.

Appellant asserts in points of error thirty-three, thirty-five and thirty-six that the admission of testimony regarding a sawed-off shotgun and a .25 automatic pistol found at the scene of the arrest violated TEX.R.CRIM.EVID. 403. He claims that any probative value was substantially outweighed by the danger of unfair prejudice.

It is the general rule in Texas that the State is entitled to show the circumstances surrounding an arrest. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985) . The admission of such evidence is reviewed under an abuse of discretion standard. Id.

Where possession of a weapon is involved ... such fact is usually relevant as a circumstance of the offense because arguably the weapon is intended by the defendant to be used, exhibited or simply possessed for protection or threat.

Couret v. State, 792 S.W.2d 106, 108 (Tex.Crim.App.1990). The discovery of these weapons was contemporaneous with the discovery of the narcotics and the arrest of the Appellant. We cannot say that the trial court abused its discretion by admitting testimony concerning all items discovered during the arrest. Accordingly, we overrule points of error thirty-three, thirty-five and thirty-six.

In his thirty-fourth and thirty-seventh points of error, Appellant claims that the trial court harmed his defense by making improper remarks to appellant's trial counsel. The Court requested at one point that defense counsel "Please frame your question. Quit trying to hide the bull and let's work through it." Later, the Court instructed defense counsel to have his exhibits pre-marked, stating, "in this Court the rules have been posted for two years. We pre-mark. No one in this courtroom needs to stand around watching you mark exhibits."

To constitute reversible error, a comment by the trial court must be "reasonably calculated to benefit the State or [to] prejudice the defendant's rights." Kincade v. State, 552 S.W.2d 832, 835 (Tex.Crim.App.1977). These statements, at most, were unguarded responses to Appellant's repetitious questioning and delay. Appellant's attorney should have known the rules of the Court and abided by them. We overrule points thirty-four and thirty-seven.

In point of error thirty-eight, Appellant contends that the trial court violated TEX.CODE CRIM.PROC. art. 36.25, by sending all of the exhibits to the jury room before the jury requested the evidence. He claims that the Court's actions were a "comment on the evidence."

Article 36.25 provides that "upon request" any exhibits admitted into evidence shall be submitted to the jury. In the case of Robinson v. State, 704 S.W.2d 565 (Tex.App.--Beaumont 198...