Pointer, Charles Edward v. State ( 2003 )

Affirmed and Memorandum Opinion filed November 13, 2003

Affirmed and Memorandum Opinion filed November 13, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00846-CR

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CHARLES EDWARD POINTER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 878,720

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M E M O R A N D U M   O P I N I O N

            Charles Edward Pointer appeals a conviction for murder^[1] on the ground that the trial court erred in denying his cross-examination of two prosecution witnesses.  We affirm.

            Appellant’s first issue argues that, in the following exchange, sustaining the State’s relevance objections denied appellant the right to completely cross-examine the witness on her potential bias from her jail detention pending her testimony and her fear of having her probation revoked if she did not testify favorably for the State:

DEFENSE COUNSEL:         Where are they holding you right now, in a holdover cell?

PROSECUTOR:        Objection to relevance.

THE COURT:            That’s sustained.

DEFENSE COUNSEL:         Well, let me ask it this way: Are you in a holdover cell by yourself or with someone else?

PROSECUTOR:        Objection, relevance.

THE COURT:            What’s the relevance of that?

DEFENSE COUNSEL:         It’s cross examination, Judge, and I think it will lead to something.

THE COURT:            Okay, that’s sustained until I hear something this is going to lead to.

            However, because defense counsel did not offer the trial court a basis to overcome the relevance objections and none was apparent, the trial court did not err in sustaining them.  In addition, in the immediately following question and answer, the witness provided the information that had been sought without objection:

DEFENSE COUNSEL:         Are you being held in a holdover cell with Jeannine Pennie?

WITNESS:     Right this minute, yes.

            Moreover, appellant was allowed to elicit testimony that the witness was on felony probation, and, contrary to appellant’s contentions, he never attempted to question the witness as to whether she believed her testimony or failure to testify could affect her probation.  Lastly, appellant failed to make an offer of proof as to any further testimony this witness might have provided.  See Tex. R. Evid. 103(a)(2); Tran v. State, __ S.W.3d __, __ (Tex. Crim. App. 2003). Under these circumstances, appellant’s first issue fails to show that any error was made or preserved and is overruled.

            Appellant’s second issue contends that, in the following exchange, the trial court erroneously refused to allow appellant to question another witness, Chonis Pennie, about potential inconsistent statements and bias regarding whether she: (1) had told the police that there were stolen cars in her garage; (2) feared being prosecuted for storing stolen cars; and (3) believed that she would be treated more leniently by the State if she testified favorably to the prosecution’s case:

DEFENSE COUNSEL:         What did you do about the stolen cars when the police got there to interview you?

PROSECUTOR:        Objection, relevance.

THE COURT:            That’s sustained.

DEFENSE COUNSEL:         Did you tell the police about the stolen cars when the police got there?

            THE COURT:            Sustained.

            However, Pennie admitted during cross-examination that she: (1) had two stolen cars in her garage; (2) did not tell the police that another witness, Kevin Davenport, was upset because that would have led to the discovery of the stolen cars; and (3) was never charged with possession of stolen cars.^[2]  Appellant never questioned Pennie about any inconsistent statements and did not otherwise ask Pennie about potential bias.  Nor did appellant make an offer of proof with regard to any further testimony by Pennie.  Therefore, appellant’s second issue also fails to show that any error was made or preserved.  Accordingly, it is overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed November 13, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1]           A jury found appellant guilty, and the trial court sentenced him to fifty years confinement.

^[2]           In addition, defense counsel questioned Pennie as to whether she received any leniency in return for her testimony with regard to the sentence she was serving for her drug conviction.  Although Pennie admitted to filing a motion for a “time cut,” she testified that she did not receive leniency.