TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00683-CR
v.
The State of Texas, Appellee
NO. 95-10-01173 CR, HONORABLE LEE G. ALWORTH, JUDGE PRESIDING
Lieutenant constable Anthony Lewis testified to the events leading to the seizure of the contraband and the arrest of appellant on the night of August 31, 1995. Lewis and fellow officer Davis were patrolling on U.S. 59 near Fostoria when Lewis monitored a vehicle travelling approximately 62 miles an hour in a 55 mile-an-hour zone. The driver, identified as appellant, and his only passenger "hurriedly exited the vehicle and quickly approached the patrol car." Appellant stated that he did not have a drivers license or any other identification because his wallet had been stolen. When Lewis began his "routine pat-down," appellant said, "I don't have anything on me." The pat-down resulted in a tinfoil package falling to appellant's feet. The package contained an "off-white rock-like substance" that Lewis recognized through training and experience to be crack cocaine. While a search of appellant's vehicle revealed no further contraband, appellant's wallet and identification were found under the front floor mat. DPS chemist Minh Nguyen testified his analysis showed that the substance in question contained cocaine and weighed 11.3 grams.
In his first point of error, appellant contends the trial court erred in excluding evidence to show bias of officer Lewis against appellant and the citizens of Cleveland. Upon cross-examination, Lewis testified that he had no problems during his service with the Cleveland Police Department. Lewis was aware of a complaint having been filed by appellant's aunt, Anita Bass, but did not recognize the name Carol Burks.
Appellant directs our attention to the following instances in which the trial court sustained the State's objections to defense counsel's questions that would have elicited evidence that would have shown the bias of Lewis: (1) a question to Lewis about whether he had arrested Carol Burks; (2) a question to Burks as to what sort of encounter she had with Lewis; (3) a question to Chief of Police Ike Hines about complaints made by other citizens against Lewis, asked after Hines had testified that his investigation of the complaints made by appellant's aunt against Lewis did not result in any sanctions being imposed on Lewis; (4) a question to Hines about whether he had ever heard of a lady named Carolyn Burks; and (5) a question to police captain Darrell Broussard about other complaints filed against Lewis, asked after Broussard had testified that he had made an investigation of the complaint filed by appellant's aunt and found nothing that would merit sanctioning Lewis.
Appellant cites Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996), and Hurd v. State, 725 S.W.2d 249 (Tex. Crim. App. 1987), in urging that cross-examination allows facts to be brought out tending to discredit the witness by showing that his testimony in chief was biased or untrue. In Carroll, the defendant sought to impeach the State's eyewitness to the murder by showing that he was incarcerated and awaiting trial on an aggravated robbery charge. In addition, the defendant sought to show that the witness had previous convictions that could be used to enhance the punishment range. The court held that the trial court erred in prohibiting the cross-examination that was offered to show that the witness had a vulnerable relationship with the State. Id. at 501. In Hurd, the trial court disallowed cross-examination of the State's only witness to the elements of the crime by showing his bias against black people. Outside the presence of the jury, the defendant sought to show the witness had established a propensity for hating black people that resulted in termination of employment on several occasions because of repeated acts of violence against members of the black race, and that he had fired every black employee that he ever had. The court found that defense counsel had made an informal bill of exception by showing the questions he would have asked and the answers he may have received. Id. at 253.
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. See Tex. R. Evid. 103(a)(2). In Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993), the court held that defense counsel's statement to the court that he intended to show by the proposed testimony a basis for an instruction on the lack of probable cause was insufficient to preserve error for review under Rule 103. The court stated that to preserve error, an informal bill must include a concise statement of what the testimony would show. Id. at 901.
In the instant cause, appellant never made an offer of proof as to what he expected to prove, nor did he ask to make a bill by questions and answers. We hold that error was not preserved for review. Appellant's first point of error is overruled.
In his second point of error, appellant contends that he was denied access to notes of State's witness Broussard for purposes of cross-examination. After Broussard had testified that his investigation did not result in any sanctions being imposed on Lewis, Broussard stated under cross-examination that he had reviewed the relevant file before coming to court. Appellant's complaint arises from the following:
MR. DYER [defense counsel]: Your Honor, I would request a copy of the notes that captain Broussard referred to before testifying here today.
THE COURT: Do you have them with you?
THE WITNESS: No. sir.
THE COURT: He didn't bring them, counsel.
Defense counsel proceeded to question Broussard as to what was contained in his notes. Rule 615(a) of the Texas Rule of Evidence provides:
After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
Tex. R. Evid. 615(a). (2)
In Odom v. State, 766 S.W.2d 257, 259 (Tex. Crim. App. 1989), the Court of Criminal Appeals held that the defendant must make a timely post-trial request for inclusion of the witness' statement in the appellate record in order to preserve error. In Hawkins v. State, 793 S.W.2d 291 (Tex. App.--Dallas 1990, pet. ref'd), the defendant requested a copy of the prosecutor's notes for the purpose of cross-examination, a request that was denied by the trial court. The court held that the defendant failed to preserve error, if any, since it was the defendant's burden to perfect a bill to include the prosecutor's notes in the record. Id. at 292-93.
Other than the request for a copy of Broussard's notes, appellant made no attempt to have the witness' notes included in the record. Appellant's second point of error is overruled.
In his third point of error, appellant contends that the trial court erred in overruling his objection to the testimony of a witness as to whether or not appellant was involved in the sale of drugs. The sole witness to testify for the State at the punishment phase of the trial was Cleveland police officer Harry Kelly. The following colloquy occurred during the State's direct examination of Kelly:
Q Do you have an opinion as to the character of Mr. Bass in terms of whether or not he's involved in the sale of drugs?
A Well, based on listening to a body wire and hearing him sell drugs, I would have to say, yes, ma'am.
Q Okay. And what is your opinion?
A Well, again, he was --
MR. DYER: I object to this. This calls for an opinion.
MS. NEFF: Opinion and character evidence is admissible under 37.07, Your Honor.
THE COURT: Overruled.
Prior to the foregoing testimony, Kelly had testified (without objection) that an informant had purchased cocaine from appellant at appellant's house on four separate occasions. In addition, Kelly had testified (without objection) that a federal indictment was pending against appellant for delivery of cocaine of more than four grams within a thousand feet of a school.
In light of evidence of five other narcotic violations involving sale or delivery of drugs, we hold that any error in the admission of Kelly's opinion that appellant was involved in the sale of drugs was harmless beyond a reasonable doubt and made no contribution to his punishment. See Tex. R. App. P. 44.2(a). Appellant's third point of error is overruled.
The judgment of the trial court is affirmed.
Tom G. Davis, Justice
Before Justices Kidd, B. A. Smith and Davis*
Affirmed
Filed: January 28, 1999
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment.
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. See Tex. Health & Safety Code Ann. § 481.115(d) (West Supp. 1999).
2. Formerly designated as Rule 614(a) of the Texas Rules of Criminal Evidence.
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Tex. R. Evid. 615(a). (2)
In Odom v. State, 766 S.W.2d 257, 259 (Tex. Crim. App. 1989), the Court of Criminal Appeals held that the defendant must make a timely post-trial request for inclusion of the witness' statement in the appellate record in order to preserve error. In Hawkins v. State, 793 S.W.2d 291 (Tex. App.--Dallas 1990, p