Ferguson v. State

97 S.W.3d 293, 2003 WL 60527
CourtCourt of Appeals of Texas
DecidedJanuary 23, 2003
Docket14-01-01159-CR, 14-01-01160-CR
StatusPublished
Cited by25 cases

This text of 97 S.W.3d 293 (Ferguson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson v. State, 97 S.W.3d 293, 2003 WL 60527 (Tex. Ct. App. 2003).

Opinions

CORRECTED MAJORITY OPINION

SCOTT BRISTER, Chief Justice.

In October 1999, appellant Frank Sidney Ferguson assisted three current or former peace officers in stopping a motor home, in which they found what appeared to be fifty kilograms of cocaine. Shortly thereafter, appellant assisted in a raid on a “stash house” from which $50,000 in cash was recovered.

But a jury found they were acting as outlaws, not officers of the law. According to three accomplices who testified at appellant’s trial, their operations were one of several “drug rip-offs” in which renegade officers would steal narcotics and money under the pretense of conducting police raids, sell the narcotics, and keep the proceeds for themselves. According to their testimony, appellant participated in several such heists for a fee of $5,000, driving up [295]*295in his Houston Police Department patrol car to make their activities look “official.”

The October 1999 heist was a sting operation involving 41 officers and several law enforcement agencies. The motor home and the “stash house” were wired for video and audio surveillance, a tracking device was placed in the cocaine,1 and the movements of the participants were further tracked by ground and helicopter units.

A jury found appellant guilty of burglary (assessing ten years in prison) and possession with intent to deliver at least four hundred grams of cocaine (assessing forty years in prison and a $10,000 fine). He presents three evidentiary questions on appeal, which we review for an abuse of discretion. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001).

Prior Inconsistent Written Statement

Appellant’s first complaint concerns his attempt to impeach one of his associates, Michael Wagner, with a prior written statement. Shortly after the arrests, Wagner wrote a detailed, nine-page statement in which he attempted to prove the heist was a legitimate police raid and not a crime. After reaching a plea agreement with the State, Wagner abandoned this version of events and testified against appellant.2

During cross-examination, appellant’s counsel questioned Wagner about the statement, and sought to introduce it in its entirety:

Q: Did you, up to the time that you cut a deal with the State, take the position and tell other people that, in fact, this was a legitimate drug arrest and y’all were a victim of circumstance?
A: [by Michael Wagner] Yes, sir.
[[Image here]]
Q: I’m handing you Defense Exhibit No. 1. That’s something you and your brother prepared; is that correct?
A: Yes, sir, it is.
Q: And when did you and your brother prepare that?
A: This is back when I first got out of jail.
Q: All right. Now up to the time of you making a deal with the State for a reduced sentence, that was kind of your position in this thing, wasn’t it?
A: Yes, sir.
[By defense counsel]: At this time I move to introduce Defendant’s Exhibit No. 1.

The State’s attorney objected:

[By prosecutor]: It’s improper impeachment under Rule 613(a). He has unequivocally admitted this is his statement; therefore, no extraneous evidence of that statement is to be admitted before the jury ...

The trial judge sustained the objection. The court also instructed counsel not to “go into” the contents of the statement, although it is not entirely clear whether counsel’s request or the court’s ruling per[296]*296tained to every line or only limited parts of the statement.3

Rule 613 prohibits extrinsic evidence of an inconsistent statement unless the witness denies it:

In examining a witness concerning a prior inconsistent statement made by him, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to him at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted ...

Tex.R. Evtd. 613(a) (emphasis added). The rule is not as complicated as it looks; only three elements are required as a predicate for admission of a prior inconsistent statement:

identification of the statement (by time, place, and person),
• a summary of the contents, and
• a denial by the witness as to what the statement contains.

[297]*297Here, counsel’s cross-examination established only the first two—he identified the statement and summarized its contents. Because Wagner admitted the statement’s contents, the trial court correctly refused to admit anything at that point.

But it was error if the trial court prevented any further questions about any part of the statement. In the statement, Wagner made direct references to appellant’s innocence, declared the State’s informant untrustworthy (giving reasons for that opinion), and alleged the police could not have known whether their actions were legitimate or criminal. He also explained his involvement, even though he was not a police officer.. The jury heard none of these statements, and Wagner was never called upon to admit or deny their validity.

The trial court had discretion to prevent impeachment with every sentence in the nine-page statement, but not to limit cross-examination to the whole document rather than portions of it. See McGary v. State, 750 S.W.2d 782, 787 (Tex.Crim.App.1988) (holding witness may be asked about portions of statement and, if denied, request admission of that portion).

Nevertheless, assuming this was the trial court’s ruling, appellant has not shown how he was harmed. First, his counsel made no offer of proof detailing the questions he wanted to ask or the specific inconsistent statements he wanted to use for impeachment. See Tex.R. Evid. 108; Tex.R.App. P. 88.2. Indeed, when the trial judge invited him to do so, he insisted he wanted admission of the whole statement. Thus, it is impossible for us to assess harm without constructing the cross-examination ourselves, which we cannot do. Moreover, as discussed more fully below, appellant’s involvement in this crime was confirmed by numerous witnesses (including several participants). We are convinced beyond a reasonable doubt that no impeachment using Wagner’s statement would have altered the outcome of appellant’s trial. See Tex.R.App. P. 44.2(a). We overrule appellant’s first point of error.

Understanding of the Law

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

Related

Jay Riley Dominguez v. the State of Texas
Court of Appeals of Texas, 2022
Lovell Junior Kelly v. State
Court of Appeals of Texas, 2019
Diamond v. State
496 S.W.3d 124 (Court of Appeals of Texas, 2016)
Ferguson, Frank Sidney
Court of Criminal Appeals of Texas, 2016
Ricky Neal Jr. v. State
Court of Appeals of Texas, 2015
Michael Anderson v. Thomas Snoddy
Court of Appeals of Texas, 2015
Ruben Fernandez v. State
Court of Appeals of Texas, 2015
Mark Vernon Moore v. State
Court of Appeals of Texas, 2015
Lund v. State
366 S.W.3d 848 (Court of Appeals of Texas, 2012)
James Edmond Lund v. State
Court of Appeals of Texas, 2012
in the Matter of E. S., III, a Child
Court of Appeals of Texas, 2009
Land v. State
291 S.W.3d 23 (Court of Appeals of Texas, 2009)
Charles Douglas Land v. State
Court of Appeals of Texas, 2009
Merkle Charles Judge v. State
Court of Appeals of Texas, 2008
Jenny H. Eisenman v. State
Court of Appeals of Texas, 2008
Reginald Wayne Goudeau v. State
Court of Appeals of Texas, 2006
Goudeau v. State
209 S.W.3d 713 (Court of Appeals of Texas, 2006)
Madry, Eric v. State
Court of Appeals of Texas, 2006
Madry v. State
200 S.W.3d 766 (Court of Appeals of Texas, 2006)
in the Interest of M.A.T., a Minor Child
Court of Appeals of Texas, 2005

Cite This Page — Counsel Stack

Bluebook (online)
97 S.W.3d 293, 2003 WL 60527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-state-texapp-2003.