McGee v. State

• Citation: 689 S.W.2d 915
• Decision Date: 28 March 1985
• Docket Number: No. C14-83-105-CR,C14-83-105-CR
• Parties: Don Carlos McGEE, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 915

689 S.W.2d 915

Don Carlos McGEE, Appellant, v. STATE of Texas, Appellee.

No. C14-83-105-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

March 28, 1985.

Rehearing Denied May 16, 1985.

Stephen G. Schulz, Galveston, for appellant.

Miguel Martinez, Dist. Atty., Houston, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

JUNELL, Justice.

Appellant was convicted of delivery of less than 200 grams of a controlled substance, Pentazocine, under Tex.Rev.Civ.Stat.Ann. art. 4476-15 §§ 4.02(d)(4)(U), 4.032(b) (Vernon Supp.1985). His sentence was enhanced by one prior felony conviction, and he was sentenced to twenty years' confinement and fined $5000.00. We affirm the conviction.

A recitation of facts is unnecessary.

In grounds of error one and two, appellant argues that his conviction should be reversed because the state did not allege and the court did not charge that the quantity of Pentazocine he delivered had a "potential for abuse associated with a depressant effect on the central nervous system." In ground of error three, he argues that, even if the indictment and charge had contained that language, the evidence was insufficient to establish that he delivered a quantity with a potential for abuse. Appellant derives these arguments from the language of Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 4.02(d)(4)(U) (Vernon Supp.1984):

(d) Penalty Group 3. Penalty Group 3 shall include the following controlled substances:

* * *

* * *

(4) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with depressant effect on the central nervous system:

* * *

* * *

(U) Pentazocine, its salts, derivatives, or compounds or mixtures thereof;

In the indictment, the State alleged that Appellant:

on or about the ... 13th day of ... February.... A.D. One Thousand Nine Hundred and Eighty-Two, and anterior to the presentment of this indictment in the County of Galveston and State of Texas, did then and there intentionally and knowingly deliver to Eddie Collins a controlled substance, to-wit: Pentazocine in the amount of less than 200 grams by aggregate weight including any adulterants or dilutants by the actual transfer of the said controlled substance from Don Carlos McGee to Eddie Collins,

The charge tracked the language of the indictment.

As the State correctly points out, the term "having a potential for abuse" modifies the word "substance," not the word "quantity." See Sheffield v. State, 623 S.W.2d 403 (Tex.Crim.App.1981); Sheffield v. State, 635 S.W.2d 862 (Tex.App.--Tyler 1982, no pet.). Thus, the State was not required to allege or prove, and the court was not required to charge, that appellant delivered a quantity of Pentazocine which had a potential for abuse associated with a depressant effect on the central nervous system. Since the indictment and charge were properly drawn and the testimony of the undercover narcotics officer was sufficient to prove the allegations, grounds of error one, two and three are overruled.

In ground of error four, appellant asserts that he did not receive a fair trial because, during voir dire, the State "convey[ed] to the jury the fact that [he] had a prior felony conviction." Appellant represents to this court that the prosecutor asked each potential juror a question similar to the following:

Could you consider a 20 year sentence that we have been talking about earlier if you found in a proper case that a Defendant had been previously convicted of a felony? Could you consider that punishment if you found he again pushed drugs?

Appellant then attempts to analogize these facts to facts in cases which hold that the admission into evidence of an extraneous offense is incurable, reversible error, see Newman v. State, 485 S.W.2d 576, 578 (Tex.Crim.App.1972), regardless of whether an objection was lodged. See Navajar v. State, 496 S.W.2d 61 (Tex.Crim.App.1973).

We first observe that appellant has misrepresented the facts to this court. Of the thirty-one veniremen, the prosecutor asked twenty of them a general question such as whether they could assess the maximum range of punishment if it were shown that appellant had a previous felony conviction. Although courts have expressed disapproval with such a question to the panel as an entirety, they have held that it is permissible because the answers received aid both parties in the wise use of their peremptory challenges and their challenges for cause. See, e.g., Mathis v. State, 576 S.W.2d 835 (Tex.Crim.App.1979) (en banc). The Mathis court also mentioned without comment that the prosecutor similarly questioned individual veniremen. Id. at 837. As stated in Plair v. State, 102 Tex.Crim. 628, 279 S.W. 267 (1925), it is reversible error to refuse a defendant's request to individually interrogate veniremen. We can find no fault with such a procedure merely because the prosecutor, rather than the defendant, wishes to do so.

The prosecutor asked only two veniremen the question quoted above.

We acknowledge that the prosecutor overstepped the permissible boundaries of voir dire by inquiring of those two veniremen whether they could assess the maximum punishment if they found appellant was "again pushing drugs." However, appellant's attorney made no objection to any of the questions now complained of. His failure to do so constitutes a waiver of the error and preserves nothing for review.

Tex.Code Crim.Proc.Ann. art. 36.01 (Vernon 1981), states that:

A jury being impaneled in any criminal action, the cause shall proceed in the following order:

1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.

While our situation does not fall within the confines of art. 36.01 because the prosecutor did not read the enhancement paragraph of the indictment and because appellant had never been convicted of "pushing drugs," we find the reasoning employed in cases interpreting the article enlightening and applicable.

Cox v. State, 422 S.W.2d 929 (Tex.Crim.App.1968), involved a situation governed by art. 36.01. In Cox, the prosecutor read the indictment, including the five enhancement paragraphs, to the jury during opening arguments in the guilt stage of the trial. No objection was made. The court stated:

The only question presented is whether in absence of an objection, a violation of Article 36.01(1), supra, constitutes reversible error. There can be no doubt that the provisions of Article 36.01(1), supra, were designed to serve a salutary purpose and should be strictly complied with by all prosecutors. If the action here complained of had been permitted over objection, reversible error should follow. We cannot agree, however, that in absence of an objection, exception, or a request for an instruction or a mistrial, an accused may successfully raise such question for the first time on the motion for new trial as attempted here. Cf. Kelly v. State, 99 Tex.Cr.R. 403, 269 S.W. 796.

Id. at 930 (emphasis added). Similarly, in Bell v. State, 504 S.W.2d 498 (Tex.Crim.App.1974), the indictment was read to the jury and the prior conviction was proved during the guilt phase of the trial. Again, no objection was made. Relying on Cox, the court held that although the prosecutor acted improperly, the defendant did not preserve error for review because he did not object. Finally, in Frausto v. State, 642 S.W.2d 506 (Tex.Crim.App.1982), the prosecutor read the enhancement clause to the veniremen during voir dire. The trial court overruled the defendant's objections and the court of criminal appeals reversed the conviction. Read together, these cases hold that the failure of a defendant to object waives the error. Thus, ground of error four is overruled.

Appellant next complains in grounds of error five and six of several remarks the prosecutor made during his closing arguments. At the guilt/innocence stage of the trial, the prosecutor argued:

(1) If we can't get a conviction in that type of situation, we might as well forget trying to get the drug pushers convicted in Galveston.

(2) If you let Don Carlos McGee go, if you say by your verdict not guilty, I want you to think of the effects of this on the community.

(3) You know as well as I do, in your hearts, that Don Carlos McGee is guilty. You know that.... All I am asking you to do is find him guilty of the offense that we have charged him with.

At the punishment stage, the prosecutor argued:

(4) Your verdict is very important. It is extremely important on the effect of people's lives, but not just the dope dealers' lives. You have got an obligation to the rest of society.... You can sentence him now or you can sentence the people out on the street ...

(5) The Defense tells us a story that this is not a crime of violence, that there was no violence. I submit that his felony conviction of possession of a prohibited weapon, not just possession of a handgun, but possession of a prohibited weapon is a crime of violence. I submit to you that possession of a handgun that he possessed and was convicted of is a crime of violence and I submit something else: When he is out there selling sets on the street, he is guilty of a crime of violence ...

The permissible areas of jury argument include: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) a plea for law enforcement. Wade v. State, 627 S.W.2d 777 (Tex.App.--Waco 1981, no pet.). Appellant argues that the above-mentioned statements made by the state overstepped these bounds. However, no objection to any of these arguments was made either during or after the prosecutor's arguments. The court in ...