Cooper v. State

578 S.W.2d 401, 1979 Tex. Crim. App. LEXIS 1327
CourtCourt of Criminal Appeals of Texas
DecidedMarch 21, 1979
Docket55445
StatusPublished
Cited by33 cases

This text of 578 S.W.2d 401 (Cooper v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. State, 578 S.W.2d 401, 1979 Tex. Crim. App. LEXIS 1327 (Tex. 1979).

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for delivery of amphetamine. The penalty, upon proof of a prior final felony conviction, was assessed at 20 years’ imprisonment and a $10,000.00 fine.

Appellant’s first ground of error challenges the trial court’s exclusion of a defense witness’s testimony as a violation of his Sixth Amendment (U. S. Constitution) rights. After the State concluded its casein-chief consisting of the undercover narcotic agent, Jerry Davis, and a chemist, the defense called Ronnie Hammond. It was disclosed on the record that this witness had entered the courtroom after the rule to sequester witnesses (Article 36.03, V.A.C.C.P.) had been invoked by appellant and relevant instructions given by the judge, and had been present for the presentation of the State’s case. His testimony related to a sale of white pills made by the undercover agent to the appellant at the University Lounge at around 11:30 p. m. or 12:00 midnight on the date of the charged offense and after the alleged delivery of amphetamine by appellant to the agent. The latter transaction occurred at a table occupied by five persons — appellant, witness Hammond, Lynn Reed, Steve Matteson, and Agent Davis. Appellant’s trial counsel argued that Hammond’s testimony was important impeachment evidence in light of Agent Davis’s denial of any such transaction in the course of his cross-examination. The trial court excluded Hammond as a witness because (1) he violated the sequestration rule and (2) his testimony constituted impeachment of Agent Davis on collateral matters.

The trial court was in error concerning his second reason for exclusion of the testimony. Binnion v. State, Tex.Cr.App., 558 S.W.2d 485, involved the same undercover agent and impeachment testimony. There the exclusion of such evidence was deemed reversible error because evidence relating to drug use and sale by the accusing undercover agent was important to the jury’s determination of credibility and the agent’s denial of such use or sale was not a minor part of his testimony. This Court relied on Montemayor v. State, 543 S.W.2d 93. When the guilt of the accused turns on the evidence of a single witness, the general rule against impeachment on collateral matters must not be so rigidly applied as to shield that witness from a piercing credibility review by the [403]*403fact-finder. Besides, in a drug sale prosecution, drug transactions by the condemning witness are not so clearly collateral.

However, there remains the first reason for excluding witness Hammond—violation of the witness sequestration rule. The trial court’s enforcement of that rule is largely discretionary. Miller v. State, Tex.Cr.App., 455 S.W.2d 253; Berry v. State, Tex.Cr.App., 477 S.W.2d 284; Brown v. State, Tex.Cr.App., 523 S.W.2d 238. Appellant insists that the trial court’s ruling here violated his Sixth Amendment right to compulsory process for witnesses and relies on Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972). Upon a review of that case and the authorities cited therein, we do not believe its ruling applies in the case before us.

In Braswell, as here, the witness excluded had apparently innocently violated the witness sequestration rule, and there was no indication of the petitioner’s active or knowing involvement in its violation. The similarities end there. The witness excluded in Braswell was the only witness who could corroborate Braswell’s self-defense version of events giving rise to the aggravated assault charges. Braswell and the witness were strangers to the barroom scene while the State’s witnesses were a familiar group to each other. The panel in Braswell limited its decision to “the particular and extraordinary circumstances of this case . . .” (Id. at 1156) and noted that the trial court’s action deprived Bras-well of the opportunity to present a defense. Such action was termed fundamentally unfair.

Here the witness Hammond would not corroborate a defensive theory as found in Braswell, although his testimony lends some indirect credence to appellant’s denial of delivering amphetamines to Agent Davis. Hammond’s testimony was impeaching in nature. Further, the exclusion of Hammond’s testimony did not foreclose the presentation of the admissible impeachment evidence since two other persons were present at the time of the latter transaction. Steve Matteson, whom Agent Davis identified as a co-defendant of appellant’s in this case and who was acquitted prior to this trial, was not called. Lynn Reed, whom appellant identified as the fourth person present while he transported Matte-son and Agent Davis to the Cactus Motel where the exchange occurred, was not called. Both persons were identified by Hammond as being present during Davis’s alleged sale of white pills to appellant in the University Lounge.

We conclude that under the “particular circumstances” of this case the trial court’s exercise of discretion in enforcing the witness sequestration rule did not violate appellant’s Sixth Amendment rights secured to him through the Fourteenth Amendment. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); cf. Holder v. U. S., 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); U. S. v. Schaefer, 299 F.2d 625 (7th Cir. 1962). Neither did it deprive appellant of a fair trial. See Amendments V and XIV, U.S. Constitution; Article I, Sections 10 and 19, Texas Constitution. No abuse of discretion has been shown. Appellant’s first ground of error is overruled.

Appellant’s second ground of error complains of several remarks made by the prosecutor during his argument to the jury at the punishment stage of the trial. In discussing that portion of the charge which precludes the jury from discussing how long the defendant would be required to serve any penalty they assessed, the prosecutor stated:

. This man has been to prison before, he was sentenced to two years in prison and he served one year in prison.

Appellant’s timely objection was overruled, but the trial court instructed the jury that they were not to consider how long appellant would actually serve. The record indicates that appellant previously testified that he spent a year in the penitentiary on three drug convictions. The prosecutor also promptly withdrew his argument as well. In light of the proceedings reflected by the record, we conclude that the error, if any, was sufficiently cured by the trial court’s prompt instruction to the jury. See Parish [404]*404v. State, Tex.Cr.App., 523 S.W.2d 665. We do note, however, our strong disapproval of such arguments, even when couched in the context of explaining the court’s charge on limiting the jury’s consideration of parole matters, and reaffirm our decision in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wendell Earl McCoy v. State
Court of Appeals of Texas, 2005
Taylor, Reginald Wayne v. State
Court of Appeals of Texas, 2005
Taylor v. State
173 S.W.3d 851 (Court of Appeals of Texas, 2005)
Morin, Gerardo Ray v. State
Court of Appeals of Texas, 2002
Oñate v. State
62 S.W.3d 208 (Court of Appeals of Tennessee, 2001)
Walker v. State
2 S.W.3d 655 (Court of Appeals of Texas, 1999)
Chisum v. State
988 S.W.2d 244 (Court of Appeals of Texas, 1999)
Moore v. State
882 S.W.2d 844 (Court of Criminal Appeals of Texas, 1994)
Loven v. State
831 S.W.2d 387 (Court of Appeals of Texas, 1992)
Franklin v. State
774 S.W.2d 794 (Court of Appeals of Texas, 1989)
Webb v. State
766 S.W.2d 236 (Court of Criminal Appeals of Texas, 1989)
Coons v. State
758 S.W.2d 330 (Court of Appeals of Texas, 1988)
Guerra v. State
771 S.W.2d 453 (Court of Criminal Appeals of Texas, 1988)
Madrigal Rodriguez v. State
749 S.W.2d 576 (Court of Appeals of Texas, 1988)
Fierro v. State
706 S.W.2d 310 (Court of Criminal Appeals of Texas, 1986)
Berlanga v. State
696 S.W.2d 425 (Court of Appeals of Texas, 1985)
Cisneros v. State
692 S.W.2d 78 (Court of Criminal Appeals of Texas, 1985)
Johnson v. State
691 S.W.2d 619 (Court of Criminal Appeals of Texas, 1984)
Green v. State
682 S.W.2d 271 (Court of Criminal Appeals of Texas, 1984)
Hougham v. State
659 S.W.2d 410 (Court of Criminal Appeals of Texas, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
578 S.W.2d 401, 1979 Tex. Crim. App. LEXIS 1327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-state-texcrimapp-1979.