Gary Randall Davis v. State

• Court: Court of Appeals of Texas
• Decided: April 26, 1995
• Docket: 03-94-00304-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00304-CR

Gary Randall Davis, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

NO. 8031, HONORABLE J. ALBERT PRUETT, JR., JUDGE PRESIDING

Appellant Gary Randall Davis was convicted in a jury trial of the offense of delivering, by constructive transfer, less than twenty-eight grams of cocaine. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.112, 1989 Tex. Gen. Laws 2230, 2935 (Tex. Health & Safety Code Ann. § 481.112, since amended). The jury assessed punishment at confinement for forty years and a fine of $440.00.

Appellant presents four points of error in which he asserts that the trial court erred in failing to submit to the jury an instruction on a lesser included offense, in allowing witnesses to testify when their names had not been provided to the defense as required by a pretrial discovery order, and in admitting evidence of extraneous offenses. Appellant also contends that the jury's assessment of punishment at imprisonment for forty years constitutes cruel and unusual punishment in violation of his federal and state constitutional rights. We will affirm the judgment.

Although appellant does not directly challenge the sufficiency of the evidence, a brief summary of the facts will help in the understanding of our disposition of the points of error raised. Officers Edward Kubicek and Cristal Kaminski were assigned to undercover investigations in Bastrop County. They became familiar with suspects who frequently were in Ray's Place, a bar in Bastrop. Appellant was the son of the proprietor of Ray's Place and lived in a motor home parked behind the bar with several other mobile homes.

Officers Kubicek and Kaminski established a "cover" for their presence in the Bastrop area. Kaminski became acquainted with Candy Gail Ebner, who was appellant's companion and accomplice. Kaminski and Kubicek made arrangements to buy an "8-Ball" of cocaine from appellant and Ebner. After arranging to purchase the cocaine, the officers came to Ray's Place one evening and gave Ebner three one-hundred-dollar bills in payment. The officers seated themselves in the bar where they could watch the bar entrances and appellant's motor home. Ebner came from appellant's motor home into the bar and returned the three hundred dollars to Kubicek because the "stuff" was not ready. Ebner returned to the motor home and came back into the bar with appellant about fifteen minutes later. Kubicek gave the money back to Ebner. Ebner, appellant, and Kaminski got into Kubicek's car, and Kubicek drove about a mile to some apartments to pick up the narcotics.

When they reached the apartments, a man and a woman were sitting in the yard. Appellant approached them and after a short conversation returned to the car and said the couple were nervous because they did not recognize Kubicek or the car. Kubicek drove around and parked in a different place. Appellant then had another conversation with the couple, came back to the car and said the "stuff" was not ready yet. Kubicek and his three passengers drove around for about fifteen minutes and then returned to the apartments. Appellant got out of the car and was gone about five minutes when he returned to the car with a plastic sandwich bag containing a white powdery substance. Appellant said he had purchased two "8-Balls" and told Kubicek that when they got back to Ray's Place he would divide the cocaine and let Kubicek have the "8-Ball" he had purchased.

When they reached Ray's Place, Kubicek parked beside the bar. The officers remained in the car, and appellant and Ebner entered appellant's motor home. Several minutes later, appellant and Ebner came out of the motor home, and appellant handed Ebner two bags of the white powdery material. Appellant remained behind a fence. Ebner came to the car and offered Kaminski her choice of the bags. Kaminski selected one of the bags, and Ebner and appellant disappeared behind the bar.

The officers contacted Sergeant David Campos, Chief Investigator for the Bastrop County Sheriff's office. The three met about three and one-half miles from Bastrop, where Kubicek gave Campos the bag Ebner gave him. Campos took the bag containing the powder to the Department of Public Safety Laboratory. Joel Budge, the supervisor of the drug section of the laboratory, testified and confirmed that he had determined the powdery substance in the bag was cocaine. Budge testified that the bag contained 2.93 grams of cocaine, which he believed, based on his experience, would make twenty-nine or thirty hits--usable quantities.

Appellant did not testify but called officer Kubicek as a witness and questioned him about the absence of some matters in his report about which he had testified. In this effort to impeach Kubicek, appellant offered and the court admitted as an exhibit the complete offense report.

In his first point of error, appellant complains of the trial court's refusal to submit to the jury an instruction on the lesser included offense of possession of cocaine. Possession of cocaine is a lesser included offense of delivery of cocaine. Jones v. State, 586 S.W.2d 542, 545 (Tex. Crim. App. 1979); Mello v. State, 806 S.W.2d 875, 878 (Tex. App.--Eastland 1991, pet. ref'd). A jury instruction on a lesser included offense should be submitted to the jury when the lesser included offense is included within the proof necessary to establish the offense charged and when there is evidence in the record from which a rational jury could find that the defendant, if guilty, is guilty only of the lesser included offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993); Adanandos v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993); Burnett v. State, 865 S.W.2d 223, 227 (Tex. App.--San Antonio 1993, pet. ref'd). The credibility of the evidence and whether it conflicts with other evidence must not be considered in determining whether an instruction on the lesser offense should be given. Ross v. State, 861 S.W.2d 870, 875 (Tex. Crim. App. 1992); Lugo v. State, 667 S.W.2d 144, 146-47 (Tex. Crim. App. 1984).

Appellant had actual physical possession of the cocaine before it was delivered, and he had the control and management of the cocaine until it was delivered into the possession of the officers. However, there is no evidence to show that a delivery of the cocaine was not made. To the contrary, all of the evidence without conflict shows the cocaine was delivered to the officers. No rational jury, in this case, could find that the cocaine was not delivered and that appellant was not an active participant in that offense. Therefore, a rational jury could not find that appellant, if guilty, was guilty only of the lesser included offense of possession of cocaine. A defendant is not entitled to a lesser included offense instruction merely because in proving the greater offense the State also proves the lesser offense. Gibbs v. State, 819 S.W.2d 821, 832 (Tex. Crim. App. 1991). The trial court did not err in refusing to instruct the jury on the lesser included offense. Appellant's first point of error is overruled.

In his second point of error, appellant urges that the trial court erred in allowing witnesses to testify when their names had not been provided to defense counsel in accord with the trial court's pretrial discovery order. The State was required by that order to furnish defense counsel with the names of the witnesses by 10:00 a.m. on the Friday before the commencement of trial. The State did not furnish defense counsel with the names of the witnesses Campos and Salmela until Monday morning before trial. Sergeant David Campos's testimony merely established the chain of custody for the cocaine offered in evidence. Campos received the cocaine from officer Kubicek and took it to the Department of Public Safety Laboratory. Ed Salmela, an investigator employed by the Bastrop Police Department, testified at the punishment phase of the trial that appellant's reputation in the community for being a peaceful and law abiding citizen was bad. Two other witnesses also testified to the same effect.

Appellant did not challenge the prosecutor's assertion that prior to trial defense counsel was allowed to see and inspect the State's file in this case. Campos's name was listed in that file as a witness who received the cocaine from officer Kubicek and delivered it to the laboratory for analysis. Campos did not testify until the second day of the trial. Salmela did not testify until the third day of the trial. Appellant did not ask for a continuance or a postponement of the trial so he could interview and investigate these witnesses. A request for a continuance is generally necessary to show error. Stoker v. State, 788 S.W.2d 1, 15-16 (Tex. Crim. App. 1989); Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim. App. 1985); Pinkerton v. State, 660 S.W.2d 58, 64 (Tex. Crim. App. 1983); Quinones v. State, 592 S.W.2d 933 (Tex. Crim. App. 1980). We hold that appellant has failed to demonstrate that the State's failure to list the names of the witnesses on the witness list Friday instead of Monday before trial constitutes error. The trial court did not abuse its discretion in allowing Campos and Salmela to testify. Appellant's second point of error is overruled.

In appellant's third point of error, he claims, "The trial court erred in admitting testimony regarding extraneous offenses." Multifarious complaints are presented in this point of error. Such a point of error generally presents nothing for review. Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim. App. 1988); Martinets v. State, 884 S.W.2d 185 (Tex. App.--Austin 1994, no pet.). However, we will discuss appellant's grievance. In this point of error, complaints are made to the admission of evidence when no trial objection was made, when the trial objection differs from the objection on appeal, and when trial objections were made but the same evidence came in at another time without objection. Moreover, appellant, for the purpose of impeaching officer Kubicek on one matter, offered and the trial court admitted the complete offense report, which chronicled the investigation of the offense in greater detail than the evidence offered by the State.

Appellant also incorporates argument that his motions in limine and orders thereon were violated. Pretrial motions in limine do not generally preserve for review objections to the admission of evidence. There must be proper and timely objections made during trial when the evidence is offered. Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985); Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972); Abbott v. State, 726 S.W.2d 644, 648 (Tex. App.--Amarillo 1987, pet. ref'd); Watson v. State, 715 S.W.2d 864, 867 (Tex. App.--Fort Worth 1987), rev'd. on other grounds, 762 S.W.2d 591 (Tex. Crim. App. 1988).

Appellant designates three specific instances for consideration. We quote from the record.

The first instance:

Q. [By prosecutor]  What took place on that date, your first contact with Gary Davis?

A. That's when the first purchase of cocaine was made.

Q. Can you tell us when you first met Gary Davis did you --

[By Defense Counsel]  Your Honor, I object to relevance. This is all on May 7th. It has nothing to do with the date that --

[By the Court]  Sustained. Move on, please.

The second instance:

Q. [By Prosecutor]  All of the cases that you made on Candy Ebner, did they involve--also involve Ray Davis?

[By Defense Counsel]  Objection, Your Honor, it's irrelevant. Candy Ebner is not on trial here today.

[By the Court]  I'll overrule that.

[By the Prosecutor]  I'm sorry; I didn't hear what you said, Your Honor.

[By the Court]  The objection was overruled.

Q. [By Mr. Penick]  Would you answer the question?

A. Yes, sir, it did directly involve Gary Davis.

Q. All right, how many cases would you say were made?

A. Involving Candy Ebner and Gary Davis--four.

Q. Did you ever see Gary Davis use drugs or appear to use drugs?

A. I never saw him actually use the narcotic. I did see him appear to be intoxicated on several occasions.

The third instance, which occurred at the punishment phase of trial.

Q. What I would like you to do is to talk a little bit about your duties as investigator about--you mentioned people under you, like the people you have cause to come in contact with in terms of--that might be supplying you information and things like that?

A. Oh, it's a variety of individuals. A lot of them are other police officers with other agencies, intelligence derived from traffic stops by patrol officers, and certainly any cases that are made, I'm the person that interviews the suspects in the jail and I try to develop what I like to refer to as spring-off cases. Oftentimes, you'll have someone that is arrested for a narcotics case, and there is usually one or more individuals that can or will be associated with that initial case, and it's part of my responsibility to try to identify those individuals.

Q. You said as liaison officer--that means a go-between officer obviously. Do you talk about cases? Do you talk about individuals with the DEA, with the DPS, with the capital area narcotics task force? Do you talk about --

A. Yes, I do. Once a month they have a board of governors meeting, and I'm the representative that attends those meetings.

Q. Do you talk about specific names of individuals, suspects and ongoing problems?

[By Defense Counsel]  Your Honor, I'm going to object to this line of questioning as to relevance. This is all stuff that happens now, and we're here on a case that happened last May.

[By Prosecutor]  I will establish the relevance, Your Honor, because we're about to get into reputation testimony.

[By the Court]  I'll overrule the objection for now.

Q. [By Prosecutor]  Do you talk with other investigators--in other words, opposite numbers of other federal and state drug agencies, do you not?

A. Yes, I do.

Q. As well as police forces?

A. Exactly.

Q. And then as you said crooks, criminals, other people out in the community?

A. Certainly.

Q. What I'd like to do then is now move and ask you some specific questions. We have had a discussion with regard to your testimony outside, have we not?

The prosecutor then elicited the testimony of the officer concerning appellant's reputation.

Appellant argues that in these three instances evidence of extraneous offenses was admitted, thus violating the Rules of Criminal Evidence. Tex. R. Crim. Evid. 404(b). However, at the time of trial, there were no objections on these grounds. If the complaint on appeal does not comport with the trial-court objection, nothing is presented for review. McFarland v. State, 845 S.W.2d 824, 836-37 (Tex. Crim. App. 1992); Rezac v. State, 782 S.W.2d 869, 870-71 (Tex. Crim. App. 1990); Navarro v. State, 863 S.W.2d 191, 200 (Tex. App.--Austin 1993, pet. ref'd); Adams v. State, 862 S.W.2d 139, 147 (Tex. App.--San Antonio 1993, pet. ref'd).

In the first instance, the trial court sustained appellant's objection, even though it may not have been precisely correct, and since no further relief was sought, nothing is presented for review. In the other two instances, the second instance at the guilt-innocence phase of trial and the third instance at the punishment phase of trial, the trial objection of "irrelevant" and "relevancy" are not the same as "extraneous offense" and "Rule 404(b) error" urged on appeal. Appellant's third point of error is overruled.

In his final point of error, appellant argues that his punishment for the offense of which he was convicted is cruel and unusual and therefore violates both his federal and state constitutional rights. U.S. Const. amend. VIII; Tex. Const. art. 1, § 13. For the delivery of 2.93 grams of cocaine, the jury assessed appellant's punishment at imprisonment for forty years. He committed the offense in May 1993. The same offense if committed after September 1, 1994 would have a maximum penalty of imprisonment for twenty years. The act which became effective September 1, 1994 has no ameliorating provisions for offenses committed before its effective date. The statute in effect at the time appellant committed the offense provided a penalty range of imprisonment for not more than ninety-nine years and not less than five years. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.112, 1989 Tex. Gen. Laws 2230, 2935 (Tex. Health & Safety Code Ann. § 481.112, since amended); Tex. Penal Code Ann. § 12.32 (West 1994). ⁽¹⁾ Appellant has cited no case law in support of his argument in this point of error. Courts in this State have apparently without exception held that punishment assessed by a judge or jury which is within the limits prescribed by statute is not cruel and unusual within the constitutional prohibitions. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1980); Benjamin v. State, 874 S.W.2d 132, 134-35 (Tex. App.--Houston [14th Dist.] 1994, no pet.); Johnson v. State, 864 S.W.2d 708, 724-25 (Tex. App.--Dallas 1993, pet. granted on other grounds); Burton v. State, 830 S.W.2d 197,199 (Tex. App.--El Paso 1992, no pet.); Swinney v. State, 828 S.W.2d 254, 258-59 (Tex. App.--Houston [1st Dist.] 1992, no pet.).

Some people might consider the jury's verdict harsh; however, the jury in this case was properly instructed on the law and entrusted with the duty and responsibility to assess the proper penalty within the range provided by the statutes and as dictated by the evidence. The severity of the punishment may in part be explained by the testimony of three witnesses that appellant's reputation in the community for being a peaceful law abiding citizen was bad. Moreover, the jury could legitimately infer from the evidence that appellant was in the business of unlawfully selling drugs. Appellant's fourth point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Chief Justice Carroll, Justices B. A. Smith and Dally^*

Affirmed

Filed: April 26, 1995

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1.   This offense took place before September 1, 1994, and is governed by the law in effect at the time the offense was committed. Penal Code, 73d Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705. Because the code amendments effective September 1, 1994, have no substantive effect on this offense, the current code is cited for the sake of convenience.