George Leslie Sanders v. State ( 2010 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00098-CR

                                                ______________________________

                                GEORGE LESLIE SANDERS, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 196th Judicial District Court

                                                              Hunt County, Texas

                                                            Trial Court No. 25,023

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            On three separate dates, George Leslie Sanders was caught on video selling methamphetamine to a confidential informant.^[1]  As a result, he pled guilty to two deliveries of between one and four grams of methamphetamine, for which the jury assessed twenty-nine years’ imprisonment in the Texas Department of Criminal Justice–Institutional Division.  Sanders also pled guilty to a larger methamphetamine delivery, for which the jury assessed forty-nine years’ imprisonment and a $10,000.00 fine.^[2] 

            On appeal, Sanders complains he was denied due process when, without benefit of purity testing, the State’s witness testified Sanders sold a more pure form of methamphetamine called “ICE.”   Sanders claims this statement was a knowingly false misrepresentation made merely to inflame the jury.  He also alleges the trial court abused its discretion in allowing the State to question him about previous convictions used for enhancement during punishment because “the facts of the case were more prejudicial than probative.”  Finally, Sanders argues the trial court erred in denying motions for mistrial after the State asked him about noncooperation with the police in a case in which he was a victim.

            We conclude that (1) Sanders waived his complaint regarding use of the term “ICE,” (2) the trial court did not abuse its discretion in allowing evidence of Sanders’ prior retaliation convictions, and (3) admitting the punishment-phase question and answer regarding Sanders’ “non-cooperation” with police was not error.  Thus, we affirm the trial court’s judgments.

(1)        Sanders Waived His Complaint Regarding Use of the Term “ICE”

            As a prerequisite to presenting a complaint for our review, Sanders must have made a complaint about the use of the term “ICE” as false information to the trial court by a timely request, objection, or motion.  Tex. R. App. P. 33.1.

            The record reveals that the confidential informant and the investigator, Wesley Russell, both testified Sanders sold “ICE methamphetamine.”  Russell explained that ICE was a big problem in the community and that it was “much more potent than the regular methamphetamine.”  Sanders did not object to this testimony.  Instead, he pointed out during cross-examination that no purity report was requested.  The motion for new trial also fails to mention this point of error.  Since Sanders failed to object and bring any alleged error to the trial court’s attention, he has not preserved this issue for our review.^[3]

(2)        The Trial Court Did Not Abuse Its Discretion in Allowing Evidence of Sanders’ Prior Retaliation Convictions

            Sanders pled true to all enhancement paragraphs.  Nevertheless, his counsel called him to the stand to confirm that he had been convicted of retaliation and that no weapon was used during  the commission of the crimes.  During cross-examination, the State asked if the previous convictions were for retaliation against two police officers.  Sanders objected that “to go behind the conviction itself is just totally inadmissible.”   The State replied it had a right to discuss the basic facts of the case to demonstrate Sanders’ “nature and his credibility as a witness.”  The court overruled Sanders’ objection.

            The trial court’s decision to admit or exclude evidence at the punishment phase is subject to review for an abuse of discretion. Manning v. State, 126 S.W.3d 552, 555 (Tex. App.—Texarkana 2003, no pet.) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996)).

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 2009).

            Since revision of Article 37.07 of the Texas Code of Criminal Procedure, this Court has held that introduction of details and facts pertaining to prior convictions is permissible in Texas.  Hambrick v. State, 11 S.W.3d 241, 243 (Tex. App.—Texarkana 1999, no pet.) (citing Davis v. State, 968 S.W.2d 368, 373 (Tex. Crim. App. 1998)).  Specifically, if the State seeks “to go behind the conviction with details about the prior offense, the evidence is admissible.”  Id.  Thus, the trial court did not abuse its discretion in allowing the State to question Sanders about his prior retaliation convictions.^[4]

            For the first time, Sanders raises the contention that the facts are more prejudicial than probative.  This contention was not raised in objections during trial or in the motion for new trial. Sanders did not preserve this point of error, and we decline to address it.

            We overrule this point of error.

(3)        Admitting the Punishment-Phase Question and Answer Regarding Sanders’ “Non-Cooperation” with Police Was Not Error

            While Sanders was on the stand, the State began questioning him about the murder of his friend in which he was also shot.  Sanders twice objected to the State’s initial questions referring to the incident and unsuccessfully moved for a mistrial.  After a discussion off the record, the State established without objection that Sanders refused to cooperate with the police investigation by refusing to give an affidavit.^[5]   Sanders complains the trial court erred in failing to grant a mistrial.

            We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.  Towery v. State, 262 S.W.3d 586, 598 (Tex. App.—Texarkana 2008, pet. ref’d) (citing Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007)). Mistrial is an appropriate remedy only when objectionable events “are so emotionally inflammatory that curative instructions are not likely to prevent the jury from becoming unfairly prejudiced against the defendant.”  Hines v. State, 269 S.W.3d 209, 215 (Tex. App.—Texarkana 2008, pet. ref’d, untimely filed; pet. ref’d [2 pets.]) (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)). 

            After Sanders explained he was the victim in a shooting, the trial court conducted an off- the-record discussion.  When back on the record, Sanders’ counsel objected that the “line of questioning” was irrelevant and immaterial.  The trial court overruled the objection and denied the first motion for mistrial.  Sanders’ general objection to the State’s line of questioning as irrelevant was properly denied.  The court could have decided that the State sought to introduce evidence of Sanders’ character and attitude of noncooperation and retaliation toward police. See Tex. Code Crim. Proc. Ann. art. 37.07.  Moreover, the only statement made by Sanders at the point of objection established he was a victim of a crime.  Counsel does not explain how this information could unfairly prejudice the jury against Sanders, rather than cause it to sympathize with him. 

            The State next asked Sanders if he “refused to cooperate and give testimony regarding the murder of Bruce Wetstone.”  Sanders replied, “No, ma’am.”  Sanders’ counsel objected and asked the court to instruct the jury to disregard the question and answer.  The trial court granted his request, but denied a motion for a mistrial.

            When evaluating the effectiveness of a curative instruction to disregard, we look to “the nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the sentence.”  Searcy v. State, 231 S.W.3d 539, 549 n.10 (Tex. App.—Texarkana 2007, pet. ref’d) (quoting Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. ref’d)).

            The court instructed the jury to disregard “the last question and response,” an instruction we presume the jury followed. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Drake v. State, 123 S.W.3d 596, 604 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  We do not find this question to be inoculated with such prejudice that the court’s instruction to disregard it would be ineffectual.  Moreover, Sanders fails to explain how his response—that he did not refuse to cooperate with the murder investigation—would prejudice the jury against him.  Finally, the jury sentenced Sanders to approximately one-half of the available punishment range for the larger methamphetamine delivery, and approximately one-third of the available range for the two smaller deliveries.

            Given the facts of this case, we conclude the trial court did not abuse its discretion in failing to grant Sanders’ motions for the “extreme remedy” of mistrial.  Lollis v. State, 232 S.W.3d 803, 810–11 (Tex. App.—Texarkana 2007, pet. ref’d).  This point of error is overruled. 

            We affirm the judgment of the trial court. 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          February 24, 2010      

Date Decided:             February 26, 2010

Do Not Publish

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^[1]Sanders appeals from this cause number and judgments entered in cause numbers 06-09-00099-CR and 06-09-00100-CR.  The other two cases are the subjects of other opinions issued this date.

^[2]The larger delivery was in an amount of four or more grams but less than 200 grams of methamphetamine.

^[3]Sanders claims in his brief he was denied due process because the statements from Russell were knowingly false.  We point out that Russell’s statements were based on his training to identify “ICE.”  The fact that no purity testing was conducted on the methamphetamine does not demonstrate Russell’s statements were knowingly false.

^[4]Because the facts of Sanders’ retaliation convictions were admissible, the trial court did not err in denying Sanders’ repeated motions for mistrial on this basis. 

^[5]Sanders’ brief alleges the State incorrectly asserted he committed a drug-related murder.  The record establishes otherwise.  Sanders also claims the State’s questions “were false statements knowingly presented to the jury.”  The State’s questions, most of which were not objected to, could not constitute knowing misrepresentations of fact as alleged by Sanders in his brief. 

lly excludes waste resulting from oil and gas exploration and production. See Tex. Health & Safety Code Ann. §§ 361.003(34), 361.003(35) (Vernon 2001). Because the waste complained of originated from oil and gas production, the waste is exempt from the Texas Litter Abatement Act.

            The Denmans argue that the exception for oil and gas exploration and production does not apply because their claims are not confined to pollution of surface water or subsurface water. The exception contained in Section 361.003 applies to "waste materials that result from activities associated with the exploration, development, or production of oil or gas or geothermal resources and other substance or material regulated by the Railroad Commission of Texas under Section 91.101, Natural Resources Code . . . ." Tex. Health & Safety Code Ann. §§ 361.003(34)(iii), 361.003(35)(iii) (Vernon 2001). The Denmans contend that, since the stated purpose of Section 91.101 of the Texas Natural Resources Code is to "prevent pollution of surface water or subsurface water in the state," the exception applies only to claims alleging pollution to surface or subsurface water. Tex. Nat. Res. Code Ann. 91.101 (Vernon Supp. 2004–2005). While the Denmans are alleging the surface and subsurface water has been polluted, they also complain about unused oil field equipment on their land. According to the Denmans, the exception does not apply to unused oil equipment. We are not persuaded by this argument. First, Section 91.101 cited by the Denmans, does not state the purpose of the statute, but rather only authorizes the Texas Railroad Commission to issue rules to regulate pollution of surface and subsurface waters. See id. Second, even if the purpose of the statute is to prevent pollution, we should not interpret a statute differently from the plain language contained therein unless the plain language yields an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex. 1999). We are not persuaded by the Denmans' argument. Because the Texas Litter Abatement Act specifically exempts waste from oil and gas production, we affirm the trial court's summary judgment on that issue.

Conclusion

            We affirm the trial court's judgment in part and reverse in part. The notice of appeal was timely filed under the mailbox rule. The Denmans have standing to sue for injuries for which a cause of action has accrued while they have owned the property. Although the Denmans lack standing for the majority of their allegations —as to which we affirm the trial court's dismissal—the Denmans do have standing to sue for discharges of hydrocarbons and for damages to their farm equipment occurring during their ownership—as to which we reverse and remand for further proceedings. Because the Denmans failed to plead any cause of action under Section 85.321, it is not necessary to determine whether they have standing under that cause of action or whether the facts alleged are sufficient to constitute a cause of action under that section. Finally, we affirm the summary judgment concerning the Texas Litter Abatement Act. For the reasons stated, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.  

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          June 16, 2005

Date Decided:             September 23, 2005