Carpenter v. State

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

This is an appeal from a conviction for delivery of LSD, wherein punishment was assessed at seventy-five years. On original submission we held the judgment must be reversed because evidence of an extraneous offense was improperly admitted. After careful examination of the record, we are convinced the extraneous offense was admissible.

Appellant was charged with having delivered LSD on April 23, 1975. Testifying in his own behalf, appellant denied committing the offense charged. The undercover narcotics officer, Danny Green, testified on rebuttal for the State that appellant also delivered LSD to him on April 28, 1975. Both transactions took place at or near a pool hall in Jacksonville. On original submission the Court agreed with appellant’s contention that, although he had put identity into issue, the evidence of the extraneous offense should not have been admitted due to the insufficient similarity of the extraneous offense with the offense charged.

Our reading of the record reveals another, independent ground for admission of the complained of evidence. On direct examination the following testimony was elicited from appellant:

“Q. Did you ever ask Danny Green at the pool hall in Jacksonville to buy some acid or score or something of that nature?
“A. No, sir.”

In Hamilton v. State, 480 S.W.2d 685, this Court stated the rule applicable to the situation presented in the instant case:

“On direct examination, appellant made the blanket claim that he had ‘never been inside a burglary before, I didn’t know nothing about how to rob or nothing.’ On cross-examination he reiterated this statement whereupon the prosecutor questioned him concerning other robberies in which he was identified as a participant. The extraneous offense became admissible in rebuttal to appellant’s blanket claim that he had never been involved in a robbery before. Davis v. State, Tex.Cr.App., 478 S.W.2d 958 (1972); Kemp v. State, 157 Tex.Cr.R. 158, 247 S.W.2d 398; Alexander v. State, Tex.Cr.App., 476 S.W.2d 10 (1972).”

In the case at bar the testimony quoted above constituted a blanket claim that appellant had never asked Green to buy any LSD at the pool hall in Jacksonville,1 thus *124authorizing evidence of an extraneous delivery of LSD at that pool hall in rebuttal. This ground of error is overruled.

In two of the three remaining grounds of error, appellant complains of the trial court’s exclusion of testimony of two witnesses as to whether Green had smoked marihuana behind the Caliente Club in Jacksonville. Suffice it to say that Green’s denial of having smoked marihuana at the Caliente Club was made by a bill of exception, but was not made in the presence of the jury until after the excluded testimony had been offered. Thus, there was no testimony to be impeached when the trial court’s ruling was made. Appellant did not reurge his offer when Green denied the incident in the jury’s presence. Exclusion of the testimony was proper at the time it was offered. These grounds of error are overruled.

In the remaining ground of error appellant contends the trial court erred in failing to grant his motion for mistrial based on alleged improper argument by the prosecutor. Appellant objected to the following remarks:

“In the event you find the defendant not guilty, I guess we will keep on trying. But our next case, that extraneous offense case, is just like this case.”

The objection was sustained and the jury was instructed to disregard these remarks. Later, the prosecutor stated:

“Our next case, the extraneous offense case, the testimony in that case — ”

The prosecutor did not complete this statement. The trial court ruled that argument of the extraneous offense would be allowed to the extent permitted under the charge.

Under the circumstances, the instruction to disregard was sufficient to cure the error, if any, in the former remarks. Chambers v. State, Tex.Cr.App., 568 S.W.2d 313; Blansett v. State, Tex.Cr.App., 556 S.W.2d 322. Nor can it be said that the latter remark carried a significant potential for prejudice, if in fact it was improper. This ground of error is overruled.

The State’s motion for rehearing is granted and the judgment is affirmed.

ROBERTS, J., dissents.

CLINTON, J., dissents to overruling ground one for the reasons stated in original opinion.

. The relevant testimony which preceded appellant’s denial of ever having asked Green at the pool hall to buy LSD was as follows:

“Q. Now, you heard his testimony that on the 23rd of April, 1975, you were there and that this was delivered to him by you in a car, did you not?
[Objections]
By Mr. Brown [defense counsel]:
“Q. On the 23rd day of April, 1975, the testimony was that you and Danny Green were playing pool. Have you ever played pool with Danny Green?
“A. No, sir.
“Q. Have you been in the pool hall with him?
“A. Yes, sir.
“Q. And on how many occasions have you been in the pool hall when he was there?
“A. One.
“Q. One?
*124“A. Yes, sir.
“Q. Was that the occasion where you left and went riding with the girl?
“A. Yes, sir.
******
“Q. Did you ever ask Danny Green at the pool hall in Jacksonville to buy some acid or score or something of that nature?
“A. No, sir.”

Before this testimony was given, appellant stated he had met Green at the pool hall on only one occasion in the month of April, at which time he, Green, and Carol Beck went riding. He specifically denied being present in Jacksonville on April 23. The plain meaning of “ever” in the question “Did you ever ask Danny Green . . was on any occasion.