Appeal from Travis County
Appellant: M.N. Garcia; Austin, Texas.
Appellee: Bob Smith, D.A.; Austin, Texas.
Roberts, Judge. Morrison, Judge concurring in part and dissenting in part.
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 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?
"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.
"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 ...