Williams v. State

Full title: THOMAS EDWARD WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Aug 30, 2007

No. 14-06-00633-CR (Tex. App. Aug. 30, 2007)

Opinion

No. 14-06-00633-CR

Opinion filed August 30, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 232nd Judicial District Court Harris County, Texas, Trial Court Cause No. 1042082.

Panel consists of Justices ANDERSON, FOWLER, and FROST.

MEMORANDUM OPINION

WANDA McKEE FOWLER, Justice.

A jury convicted appellant, Thomas Edward Williams, of delivery of less than one gram of a controlled substance. After finding two enhancement paragraphs true, the jury assessed punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a fine of $5,000. Appellant contends the trial court erred by sustaining the State's objection to a question he propounded to a witness during cross-examination and by giving an allegedly improper jury instruction on reasonable doubt in the jury charge. We affirm.

I. Factual and Procedural Background

Because appellant does not challenge the sufficiency of the evidence, we outline the facts only briefly. While working undercover in Southeast Houston on September 28, 2005, Houston Police Department ("HPD") narcotics officer Jim Goines observed appellant selling crack cocaine to another individual. After Goines called for uniformed back-up, appellant and the purchaser were arrested. On January 13, 2006, appellant was indicted with the state jail felony offense of delivery of less than one gram of a controlled substance. However, because the indictment contained two enhancement paragraphs alleging appellant had been convicted of two prior felonies, this offense could be punishable as a second degree felony. Appellant was tried before a jury on July 17, 2006. Officer Goines, HPD Officer Jason Dunn, and HPD Crime Lab analyst Shamistha Patel were the only witnesses who testified during the guilt-innocence phase of appellant's trial. Officers Goines and Dunn described the circumstances surrounding appellant's arrest. Patel testified that the rock-like substance the officers recovered at the scene contained approximately 0.1 grams of cocaine. The jury found appellant guilty. After finding the enhancement paragraphs true, the jury assessed appellant's punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a fine of $5,000. Appellant timely filed this appeal.

II. Analysis of Appellant's Issues A. Alleged "Limitation" on Cross-Examination

In his first issue, appellant contends the trial court erred in sustaining the State's objection to a question propounded during the cross-examination of a witness in violation of his right to confront witnesses against him under both the Texas and United States constitutions. Specifically, appellant complains that the trial court "stopped" him from cross-examining Officer Goines regarding whether Goines received compensation for testifying against appellant, an issue he asserts would have impeached Goines' credibility. However, nothing in our record reflects that the trial court limited appellant's cross-examination of this witness. Instead, during appellant's cross-examination of Officer Goines regarding whether his job performance or pay rate was affected by his arrest or conviction statistics, the following exchange occurred:

[Appellant]: You don't get B you don't get time off or time and a half for anything additional?

[Goines]: No, sir. I wish but no, sir I don't.

[Appellant]: You're not one of those that made a hundred and 70 thousand dollars last year?

[the State]: Judge, I object to the form of the question.

[the Court]: Sustained.

[Appellant]: I'll pass the witness Your Honor.

First, the State's objection was to the "form" of the question. Rather than continuing to pursue this line of questioning by rephrasing, appellant simply chose to end his cross-examination of Goines. Thus, the trial court did not limit his cross-examination of Officer Goines. Second, even if we construe the trial court's ruling as a limitation on cross-examination, appellant did not argue that the confrontation clause demanded admission of this evidence.¹ See Reyna v. State, 168 S.W.3d 173, 179B80 (Tex.Crim.App. 2005) (holding that the appellate court erred in reversing appellant's conviction on confrontation clause grounds because appellant did not "clearly articulate" to the trial court that the confrontation clause demanded admission of the evidence). Finally, appellant made no further attempt to cross-examine this witness, nor did he make a bill of exceptions or offer of proof regarding what testimony he sought to elicit. See Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999) ("Error in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exceptions."). For these reasons, we overrule appellant's first issue.

B. Alleged Improper Jury Charge

In his second issue, appellant argues the trial judge improperly instructed the jury on "reasonable doubt" in its charge on guilt-innocence. Our review of alleged error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). Initially, we must determine whether error occurred. Id. at 731B32. Only then do we evaluate whether sufficient harm resulted from the error to require reversal. Id. "The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected." Id. at 732. Here, appellant complains that the following language included in the trial court's charge contained an improper definition of reasonable doubt: "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt."² Citing Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000), appellant contends that no definition of reasonable doubt should be given to the jury at all. However, appellant cites no authority for his contention that this instruction defines reasonable doubt. To the contrary, several of our sister courts have determined that this same instruction does not define reasonable doubt. See, e.g., O'Canas v. State, 140 S.W.3d 695, 701B02 (Tex.App.CDallas 2003, pet. ref'd); Minor v. State, 91 S.W.3d 824, 828B29 (Tex.App.CFort Worth 2002, pet. ref'd); Carriere v. State, 84 S.W.3d 753, 759B60 (Tex.App.CHouston [1st Dist.] 2002, pet. ref'd). Moreover, this court has already addressed this issue and concluded that a trial court does not err by including this language in its charge. Jackson v. State, 105 S.W.3d 321, 325 (Tex.App.CHouston [14th Dist.] 2003, pet. ref'd). Finally, the Court of Criminal Appeals has determined that a trial court does not abuse its discretion by providing this instruction. See Woods v. State, 152 S.W.3d 105, 114B15 (Tex.Crim.App. 2004).³ We overrule appellant's second issue.

III. Conclusion

Having addressed and overruled each of appellant's issues, we affirm the judgment of the trial court.

1 In fact, appellant did not attempt to inform the trial court of any basis for allowing this question.

2 Appellant filed a written objection to the charge, as well as objecting on the record.

3 Appellant attempts to distinguish Woods because the appellant there failed to object to the alleged jury charge error. See Woods, 152 S.W.3d. at 115. However, in Woods, the Court of Criminal Appeals did not consider harm because it concluded that the trial court did not err in charging the jury. Id. It is the harm analysis that turns on whether an appellant objected, not the determination of error. See Abnor, 871 S.W.2d at 731B32. Thus, the fact that appellant objected to the charge has no bearing on our determination of error.