Price v. State

782 S.W.2d 266, 1989 WL 162797
CourtCourt of Appeals of Texas
DecidedMarch 14, 1990
Docket09-88-035 CR
StatusPublished
Cited by17 cases

This text of 782 S.W.2d 266 (Price 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
Price v. State, 782 S.W.2d 266, 1989 WL 162797 (Tex. Ct. App. 1990).

Opinions

[268]*268OPINION

BROOKSHIRE, Justice.

A jury found Appellant guilty of the offense of possession of less than 28 grams of cocaine. The trial court assessed punishment at 20 years confinement in the Texas Department of Corrections. Appellant brings this appeal from the judgment of the trial court. Appellant does not attack the sufficiency of the evidence to support his conviction.

By his first point of error Appellant urges that the trial court erred in allowing the prosecutor to make jury arguments in the guilt phase which revealed to the jury an oral statement made by Appellant to police officers. The argument complained of is as follows:

“[PROSECUTOR:] ... You can think about where would that cocain [sic] go and who’s [sic] hands was it going to go, 52 small little packets. Mr. Price stated through the testimony of the officers that, hey, it was just for his own personal use. He wasn’t going to hurt anybody.
“[DEFENSE COUNSEL:] Objection, Your Honor, counsel is arguing outside the record. She is injecting facts not in the record.
“THE COURT: Overruled.
“[PROSECUTOR:] Like I said before, if I misstate the facts rely on your memory. You are the sole judges of the facts is [sic] in this case. I am just trying to sum them up for your deliberations.”

The State admits in its brief that Appellant is correct in stating that Officer Fluel-len’s testimony that Appellant stated that the cocaine was “just for his own personal use” was only heard outside the presence of the jury. However, Officer Fluellen had testified before the jury that Appellant had made an almost identical statement when the officer discovered seven marijuana cigarettes in Appellant’s pants pocket. During his cross-examination of Officer Fluel-len, Appellant’s counsel emphasized this testimony to the jury in an effort to impeach Fluellen by suggesting Fluellen had recently fabricated the statement allegedly made by Appellant when Fluellen found “a certain controlled substance”. Clearly, defense counsel’s choice of words created a great potential for confusion in the minds of the prosecutor and the trial judge as to which statement by Appellant to Officer Fluellen was in fact part of the evidence admitted before the jury.

Rule 52(a) of the Texas Rules of Appellate Procedure reads, in part, as follows:

“PRESERVATION OF APPELLATE COMPLAINTS
“(a) General Rule. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparently from the context....”

Appellant’s objection to the prosecutor’s argument would probably be sufficiently specific in many cases. However, in the present case the confusion partly created by Appellant’s counsel’s cross-examination of Officer Fluellen called for a more specific statement by defense counsel as to his grounds of objection. Defense counsel never informed the trial court that his complaint was based on the fact that no such statement allegedly made by Appellant regarding the cocaine was in evidence before the jury. Had he done so, the trial court might have instructed the jury to disregard that part of the prosecutor’s argument. Such an instruction would have been sufficient to cure any harm Appellant may have suffered due to such argument by the prosecutor. See Hicks v. State, 545 S.W.2d 805 (Tex.Crim.App.1977).

Furthermore, Appellant did not specify to the trial judge the particular part of the prosecutor’s argument to which he directed his objection. The trial court may well have understood counsel’s objection to be directed toward that part of the prosecutor’s argument which suggested that the jury should speculate as to where the 52 small packets of cocaine found in Appellant’s car were intended to go. Since the cocaine was apparently packaged for distri-[269]*269button, this part of the prosecutor’s argument merely suggested a reasonable inference from the evidence which would tend to show that Appellant was aware that the substance was contraband. See Reid v. State, 749 S.W.2d 903 (Tex.App.—Dallas 1988, pet. ref’d). We therefore hold that Appellant failed to properly preserve the error, if any, complained of in his first point of error. Appellant’s first point of error is, therefore, overruled.

Appellant’s second point of error reads as follows:

“The Trial Court committed reversible error in denying the Appellant’s Motion to discharge the jury on the ground that the State had used its peremptory challenges in a racially discriminatory manner.”

The record reveals that Appellant is a black man, and therefore a member of an identifiable racial group. The record also re: veals that the State exercised one of its ten peremptory strikes upon the only black prospective juror on the panel even though the prosecutor did not address a single question to the black prospective juror individually during voir dire. Appellant moved to dismiss the jury after the parties made their peremptory strikes and before the jury was sworn. The trial court had released the prospective jurors who had not been selected to serve on the jury prior to Appellant’s motion. The twelve members of the jury who had been selected were seated but not sworn before Appellant made his motion to dismiss the jury.

Texas Code of Criminal Procedure article 35.2611 requires that a request to dismiss the array must be made after the parties deliver their strike lists to the clerk of the court, but before the jury is ‘ impan-elled”. The sequence of the events described in the preceding paragraphs calls into question what the legislature meant by the rather imprecise term “impanelled” as it is used in Article 35.261. The statute itself contains no definition for this term. However, a grand juror is not “impanelled” until after his qualifications have been tried and he has been sworn. TEX. CODE CRIM.PROC.ANN art. 19.29 (Vernon 1977). We have found no statutory definition of when a petit trial jury is considered “impanelled”. Therefore, we hold that the term “impanelled” as it is used in Article 35.261 means the time at which the actual trial jury is sworn. Therefore, Appellant’s request for dismissal of the jury in the present case was timely because it was made after the parties delivered their strike lists to the clerk, but before the jury was impanelled — that is before being sworn.

The trial court then allowed the prosecutor to state her reasons for striking the black prospective juror. The first reason the prosecutor gave for striking this panel member was that, before voir dire began, she heard another prospective juror tell the black prospective juror, “I don’t want to be a juror, do you?” The prosecutor stated that the black prospective juror then replied, “No, I sure don’t either.” The prosecutor stated that this conversation greatly concerned her in that “they didn’t want to actually testify [sic] which is the reason why I struck” both prospective jurors she heard express such sentiments. This testimony by the prosecutor was admitted without objection. The record re-[270]

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782 S.W.2d 266, 1989 WL 162797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-state-texapp-1990.