Johnson v. State

660 S.W.2d 536, 1983 Tex. Crim. App. LEXIS 1233

Opinions

OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of delivery of heroin and assessed his punishment at ninety-nine years’ confinement.

Appellant contends that the trial court erred in overruling appellant’s objection to the introduction of an extraneous offense. We agree that a proper objection should have been sustained¹ but we find that in light of the uncontradicted evidence of appellant’s guilt, in light of the criminal record and other evidence revealed to the jury at the punishment stage of the trial, the error was harmless.

Danny Green, a narcotics agent with the Texas Department of Public Safety, was working as an undercover agent on a narcotics investigation in October of 1977. Appellant contacted Green by telephone about a heroin sale. Green and appellant met and appellant handed Green a packet of heroin. Appellant was then arrested. Two eyewitnesses testified for the State. It is undisputed that appellant delivered the heroin directly to Green while Officer York observed the delivery from nearby. Appellant did not offer any evidence.

Green testified about his telephone conversation with appellant as follows:

“Q. (By Mr. Thompson) Agent Green, where were you on that day when Michael Charles Johnson called you on October 6th, 1977?

A. I was at my residence.

Q. And what did the Defendant relate to you by way of this telephone conversation that day?

A. He advised me that he had the half ounce of heroin that he stated a half ounce of boy, which is slang for heroin, that we discussed earlier for a thousand dollars.

Q. A thousand dollars?

A. Yes.

Q. And did he relate anything else to you on the telephone that day, Agent Green?

A. We discussed a meeting place where we would meet where I would buy the heroin from him.

Q. And did he tell you that he had a meeting place which he preferred?

A. We both agreed that the same place we had made deals before would be fine with him.”

Appellant contends that Green’s nonrespon-sive answer concerning deals made before refers to extraneous offenses and is so harmful as to require reversal. We disagree that reversal is necessary.

The test for harmless error, even where the error is constitutional, is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction or affected the punishment assessed. Clemons v. State, 605 S.W.2d 567, 571 (Tex.Cr.App.1980). An examination of the evidence demonstrates that the unresponsive answer did not contribute.

In Shannon v. State, 567 S.W.2d 510 (Tex.Cr.App.1978) the defendant was convicted of murder. A witness testified that he had purchased illegal drugs from the defendant. This Court commented that such testimony was not so prejudicial and inflammatory as to warrant reversal. The unresponsive answer in the present case is much less direct than that in Shannon. The evidence as to appellant’s guilt is completely undisputed. The instant testimony, like that in Shannon, was not so prejudicial as to warrant reversal.

Our inquiry must next focus on whether the unresponsive answer might have contributed to the jury’s assessment of punishment at ninety-nine years’ confinement. Clemons, supra. The evidence shows that appellant had been previously convicted of burglary, been assessed a probated term, and had his probation revoked. The jury was informed that appellant’s probation officer had filed on appellant for carrying a pistol and possession of marihuana. Reputation witnesses, ranging from Juvenile Probation officers to Adult Probation officers to police officers, testified that appellant’s reputation for being a peaceful and law abiding citizen in his community was bad. No testimony of a positive nature was presented about appellant.

We conclude that in view of the overwhelming evidence of appellant’s guilt combined with the evidence of prior record and state reputation witnesses there is not a reasonable possibility that the non-responsive answer at the guilt stage might have contributed to the jury’s assessment of ninety-nine years’ confinement for this delivery of heroin.

No reversible error has been shown; the judgment is affirmed.

1 . Appellant failed to obtain a ruling on his objection, instead receiving a ruling only on his motion for mistrial.

“MR. IRWIN: Please, Your Honor, at this time I would object to the question and answer given. I would move the Court to instruct the Jury to disregard the question and answer as given for the reason that the answer refers to extraneous offenses, and the answer as given was given for the purpose and would have the result of inflaming prejudice in the minds of the Jurors.

And at this time, Your Honor, I will move for a mistrial.

THE COURT: It is denied.

MR. IRWIN: Thank you, Your Honor.”

Appellant sought to remedy his error later by obtaining a signed order from the trial judge stating that the court had known the basis of the objection and had overruled both the objection and motion for mistrial. The validity of this procedure is doubtful. See Art. 40.-09(6)(c), V.A.C.C.P.