Reginald Hawkins v. State of Texas ( 2013 )

Opinion filed March 7, 2013
In The
Eleventh Court of Appeals
__________
No. 11-11-00076-CR
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REGINALD HAWKINS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR20089
MEMORANDUM OPINION
The jury convicted Reginald Hawkins of delivery of less than one gram of cocaine in a
drug-free zone. Appellant pleaded true to both enhancement allegations. The jury found the
enhancement allegations to be true and assessed Appellant’s punishment at confinement for life.
The trial court sentenced Appellant accordingly. We affirm.
Issues on Appeal
Appellant does not challenge the sufficiency of the evidence to support his conviction.
Appellant presents two issues for review. In his first issue, Appellant contends that the trial court
erred by overruling his objections and by denying his requests for mistrial after the State asked
witnesses improper questions that invited speculation about extraneous offenses. In his second
issue, Appellant contends that the trial court erred by allowing the prosecutor to make improper
jury arguments in the guilt/innocence and punishment phases.
Background
Although Appellant does not challenge the sufficiency of the evidence, we will briefly
summarize the facts to provide context for the issues on appeal. In January 2009, William
Gandy was working as a cooperating individual with Brown County law enforcement officers.
On January 24, 2009, Brownwood Police Detective Bruce Spruill contacted Gandy to see
whether he could set up a drug purchase. Gandy went to Teresa Graves’s house. Graves called
Appellant, and Appellant agreed to meet Gandy at the McDonald’s restaurant in Brownwood to
sell him cocaine. Before going to McDonald’s, Gandy met with Detective Spruill and Early
Police Detective Shawn Dibrell. Detective Dibrell searched Gandy and Gandy’s car to make
sure that he was not in possession of any illegal drugs. Detective Dibrell gave Gandy $200 to
purchase the cocaine. Detective Spruill equipped Gandy with a hidden video camera.
Detective Dibrell rode with Gandy in Gandy’s car to McDonald’s. Gandy got out of the
car. He saw Appellant in the parking lot. Appellant and Gandy went into the restroom inside
McDonald’s. While there, Gandy gave Appellant $200, and in exchange, Appellant gave Gandy
crack cocaine.
Extraneous Offense Issue
In his first issue, Appellant contends that the State repeatedly asked witnesses improper
questions that invited “hearsay and speculation by the witnesses and jury regarding extraneous
offenses during the guilt/innocence phase of the trial.” Appellant states in his brief that “the
State repeatedly attempted to create in the minds of the jury the impression that the delivery of
controlled substances had actually been a regular and ongoing practice of the Appellant for
several months prior to the instance with which he was actually charged.” The allegedly
improper questions occurred during the State’s examinations of Detective Spruill and Detective
Dibrell.
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The prosecutor asked Detective Spruill questions relating to how Gandy arranged to
purchase cocaine from Appellant on the occasion in question. During that line of questioning,
the following exchange took place:
Q. . . . . Was [Gandy] able to contact an individual here in Brown County
who could set up the purchase of crack cocaine?
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Sustained.
Detective Dibrell testified that, although Gandy paid Appellant $200 for the cocaine,
Appellant only gave Gandy $40 to $60 worth of cocaine. When Appellant handed Gandy the
cocaine, the cocaine was in a pill bottle. The following exchange took place during Detective
Dibrell’s testimony:
Q. Is it pretty -- tell us, in your experience -- you told us about the experience
you have working narcotics cases. How -- is it common for substances to be
delivered in things like bottles without lids or little cellophane wrappers and
things such as that?
A. Yes. Yes. In fact, being given the bottle, that tells me that more than
likely that was the last bit of his supply.
Q. Why is that?
A. Because normally people will carry --
[DEFENSE COUNSEL]: Objection, speculation.
THE COURT: I will sustain.
[DEFENSE COUNSEL]: Ask that the jury be instructed to disregard the last
answer.
THE COURT: The jury is so instructed.
[DEFENSE COUNSEL]: Request a mistrial.
THE COURT: Denied.
The prosecutor asked Detective Dibrell follow-up questions in an effort to show that, based on
his experience working narcotics cases, Detective Dibrell could answer questions about the pill
bottle without speculating. During that questioning, Detective Dibrell again gave the opinion
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that the fact that Appellant gave Gandy the pill bottle indicated that Appellant was at the end of
his supply of cocaine. Appellant did not object to the prosecutor’s follow-up questions to
Detective Dibrell. Nor did Appellant object to Detective Dibrell’s answers to the questions.
Gandy set up the purchase of cocaine from appellant on the occasion in question with
Graves’s help. Detective Dibrell testified that he had been to Graves’s house on business more
than once. The following exchange then took place:
Q. And we can’t get into other things, but do you have any other business
other than being a law enforcement officer?
A. No, sir.
[DEFENSE COUNSEL]: Objection, Your Honor. That’s suggestive
questioning there and irrelevant, prejudicial materials.
THE COURT: What is the relevance of this inquiry?
[PROSECUTOR]: Explaining from what there was being discussed on the
tape. There was no objection as to the admissibility of the tape. They were
discussing this Teresa on the tape. The testimony has come in that is where the
initial deal was set up from.
THE COURT: I’ll overrule the objection. You may answer.
Q. So, that is -- Teresa is a person you are familiar with?
A. Yes.
On appeal, Appellant complains that the above three instances of questioning by the
prosecutor invited the witnesses and jury to speculate about Appellant’s commission of
extraneous offenses. During the guilt/innocence phase of a trial, the admissibility of extraneous
offense evidence is governed by Rule 404(b) of the Rules of Evidence. TEX. R. EVID. 404(b);
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991); Gately v. State, 321 S.W.3d
72, 81–82 (Tex. App.—Eastland 2010, no pet.). Appellant did not object at trial on the basis of
Rule 404(b) or on any basis that would put the trial court on notice that he was objecting to the
introduction of extraneous offense evidence. To preserve error for appellate review, the
complaining party must make a timely, specific objection in the trial court and obtain a ruling on
the objection. TEX. R. APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). At trial, as shown above,
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Appellant lodged only hearsay, speculation, and relevancy objections to the questions. In
making his speculation objection to Detective Dibrell’s testimony about the pill bottle, Appellant
did not assert that the testimony should be excluded as inadmissible extraneous offense evidence.
Relevancy, speculation, and hearsay objections do not preserve error under Rule 404(b) with
respect to extraneous offense evidence. Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App.
1999); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993); Phelps v. State, 999
S.W.2d 512, 519 (Tex. App.—Eastland 1999, pet. ref’d). In addition, the issue on appeal must
comport with the objection that was made at trial. Wilson, 71 S.W.3d at 349; Broxton, 909
S.W.2d at 918. Because Appellant failed to raise a Rule 404(b) objection at trial, he failed to
preserve his first issue for appeal.
However, even assuming that Appellant’s trial objections preserved error on his
extraneous offense claim, Appellant cannot succeed on his first issue. As set forth above, the
prosecutor asked Detective Spruill whether Gandy was able to contact an individual who could
set up a cocaine purchase. This question did not relate to an extraneous offense. Rather, it
related to the circumstances that led to Gandy’s purchase of cocaine from Appellant in this case.
Additionally, the trial court sustained Appellant’s hearsay objection to the question. Appellant
took no action after the trial court sustained his objection. Because he obtained all the relief he
requested from the trial court, he cannot complain on appeal. Cook v. State, 858 S.W.2d 467,
473 (Tex. Crim. App. 1993); Chapman v. State, 349 S.W.3d 241, 247–48 (Tex. App.—Eastland
2011, pet. ref’d).
Detective Dibrell testified that Appellant was likely at the end of his supply because he
gave Gandy the pill bottle. The prosecutor then asked Detective Dibrell, “Why is that?” The
trial court sustained Appellant’s speculation objection to this question and then, at Appellant’s
request, instructed the jury to disregard Detective Dibrell’s last answer. The trial court denied
Appellant’s request for a mistrial. In response to follow-up questions by the prosecutor,
Detective Dibrell explained the bases for his opinion, and he restated his opinion that Appellant
giving the pill bottle to Gandy indicated that Appellant was at the end of his cocaine supply. The
testimony of Detective Dibrell showed that his opinion was based on his experience working
narcotics cases, not on speculation. Additionally, Appellant did not object to the prosecutor’s
follow-up questions about the pill bottle or to Detective Dibrell’s answers to those questions.
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Therefore, Appellant did not preserve for review his complaint about this testimony. Hudson v.
State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).
Appellant lodged a relevancy objection after the prosecutor asked Detective Dibrell about
his prior dealings with Graves. The trial court overruled the objection. Detective Dibrell then
testified that he was familiar with Graves. This testimony was relevant to explain the
circumstances that led to Gandy’s purchase of cocaine from Appellant in this case. Detective
Dibrell’s testimony about Graves did not implicate Appellant in any extraneous offenses.
Appellant also complains that, during cross-examination, Detective Dibrell interjected
further speculation that Appellant had committed extraneous offenses. Appellant did not object
to any of this testimony. Therefore, Appellant did not preserve his complaint for appellate
review. Rule 33.1(a); Wilson, 71 S.W.3d at 349; Broxton, 909 S.W.2d at 918.
For the above reasons, Appellant did not preserve his first appellate issue for review.
Additionally, the record does not show that the trial court erred in making its evidentiary rulings
or by denying a mistrial. Appellant’s first issue is overruled.
Jury Argument
In his second issue, Appellant contends that the trial court erred by allowing the
prosecutor to make improper jury arguments. Appellant contends that the prosecutor engaged in
improper jury argument in the guilt/innocence phase by “attempting to switch the burden of
proof.” Proper jury argument generally falls within four areas: (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4)
plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008);
Chapman, 349 S.W.3d at 246.
The prosecutor waived opening jury argument. Therefore, Appellant’s counsel argued
first. Appellant’s counsel argued that, based on the evidence, there were “reasonable alternative
explanations,” other than a drug transaction, for Appellant being at McDonald’s. The prosecutor
responded to this argument in his closing argument:
[PROSECUTOR]: Now, is it, then, by any circumstances that [Gandy], the
drug addict, knows who [Appellant] is? You know, because, they can say, “Well,
there is this big hole in the State’s case. That’s what they are telling you, right?
And can say over and over and over again, “Hey, there is all of these other
reasonable alternatives. . . . So, if I tell you enough, “Hey, there is a reasonable
alternative, there is a reasonable alternative,” maybe you will come up with it,
because the evidence sure doesn’t. You see the difference there?
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. . . I asked y’all yesterday. . . . “Will y’all make me this one promise?”
Okay, “Y’all promise me that you will not get up here and speculate about all of
these what-ifs when you get back in there to that room.”
[DEFENSE COUNSEL]: Objection, Your Honor. The State is trying to
switch the burden of proof. The State still has the burden to prove their case
beyond a reasonable doubt.
THE COURT: I’ll overrule the objection, but the jury is instructed about the
burden of proof and it does remain clearly and fully on the State.
You may proceed.
[PROSECUTOR]: Absolutely. And I accept that burden, but I’m responding
to his argument about all of these other reasonable alternatives, right?
Viewed in context, the prosecutor’s argument was a proper response to Appellant’s counsel’s
argument that “reasonable alternative explanations” existed for Appellant’s presence at
McDonald’s. Therefore, the trial court did not err by overruling Appellant’s objection to the
argument. Although the trial court overruled the objection, the trial court instructed the jury that
the State had the burden of proof, and the prosecutor immediately acknowledged that the State
had the burden. Had the prosecutor’s argument been improper, the trial court’s instruction would
have removed any potential harm caused by the argument.
Appellant also contends that the prosecutor made improper arguments about extraneous
offenses during his closing arguments in the guilt/innocence phase and in the punishment phase.
However, Appellant did not object to any of the prosecutor’s statements at either phase on the
ground that they constituted improper comments on extraneous offenses. Therefore, Appellant
failed to preserve error on this issue. Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App.
2010); Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); Chapman, 349 S.W.3d
at 247. While Appellant did object to some of the prosecutor’s comments on other grounds,
Appellant’s extraneous offense complaint on appeal does not comport with the grounds raised in
his trial objections. Accordingly, Appellant’s trial objections were insufficient to preserve error
on his appellate complaint. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
Additionally, we have reviewed the prosecutor’s jury arguments at both phases of trial in
their entirety. Based on our review, we cannot conclude that the complained-of statements
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amounted to improper comments about extraneous offenses. Appellant’s second issue is
overruled.
This Court’s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
March 7, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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