Cantrell v. State, No. 2-04-083-CR (TX 5/12/2005)

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Unpublished Opinion

THOMAS A. CANTRELL, Appellant, v. THE STATE OF TEXAS, State.

No. 2-04-083-CR

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: May 12, 2005.

Do Not Publish.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

Appeal from County Criminal Court, No. 1 of Tarrant County.

Panel A: CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.

MEMORANDUM OPINION¹

BOB MCCOY, Justice.

I. Introduction

A jury found appellant, Thomas A. Cantrell ("Cantrell"), guilty of the unlawful carrying of a handgun, and the trial judge sentenced him to (1) ninety days in jail probated for one year, (2) eighty hours of community service, and (3) a $500.00 fine. The trial judge also ordered that the weapon be destroyed. In five points on appeal, Cantrell complains that the trial court erred by (1) denying his request for a probable cause instruction, (2) overruling his objection to an unfounded assertion by the prosecutor, (3) overruling his objection to question by the prosecutor, (4) failing to give a charge on the right to carry a weapon when transporting large sums of money, and (5) ordering the weapon destroyed.

II. Background Facts and Procedural History

On October 5, 2002, Officer D. L. Collins of the Fort Worth Police Department clocked Cantrell on radar traveling at sixty-four miles per hour in a thirty-five mile per hour zone. Officer Collins pulled over Cantrell's vehicle and after conducting field sobriety tests arrested Cantrell for driving while intoxicated (a charge for which he was later acquitted). Officer Dennis Alise assisted Officer Collins in processing the arrest scene and he inventoried the vehicle after Cantrell's arrest. During the inventory search, Officer Alise found on the passenger side of the truck a loaded handgun inside a open black bag. It is the carrying of this weapon for which Cantrell was tried in this case.

At trial, Cantrell's primary defense was that he had the right to carry the handgun on this occasion because (1) he was traveling to and from the gun range,² and (2) he was carrying a large amount of money.³ In that regard, Cantrell testified that he had left the house that day to go to the gun range and that when he left the gun range he cleaned his gun and drove to his mother-in-law's house. He testified that he was on his way home after leaving his mother-in-law's house when he was pulled over by police. Cantrell testified that he was not going sixty-four miles per hour at the time he was stopped. He did not testify as to how fast he was going or that he was not speeding. Contrary to Officer Alise's testimony, Cantrell testified that the bag in which the gun was located was zipped shut. He also testified that he had $2,600 in his pocket and $20,000 cash in a hidden compartment in the truck. He stated that he did not habitually carry a firearm, but that he carried the handgun on this occasion because he was going to the gun range and because he was carrying such a large sum of money.

III. Cantrell's Request for a Probable Cause Instruction

In his first point, Cantrell contends that the trial court erred when it overruled his request for a probable cause instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Specifically, Cantrell asserts that he was entitled to a probable cause instruction because the testimony raised a factual question regarding the propriety of the traffic stop.

Article 38.23(a) states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Id. art. 38.23(a).

Because the terms of article 38.23 are mandatory, the only question is whether under the particular facts of this case an issue has been raised by the evidence so as to require a jury instruction on the legality of the stop of Cantrell. See Jordon v. State, 562 S.W.2d 472, 472 (Tex. Crim. App. 1978). If the evidence fails to raise the issue, Cantrell has no right to the probable cause instruction. Id. On the other hand, if the evidence raises a fact issue regarding the validity of the stop, then Cantrell is statutorily entitled to the requested instruction. Id.

Here, Officer D.L. Collins of the Fort Worth Police Department testified that he observed Cantrell speeding and that he clocked Cantrell's vehicle on radar to be traveling at sixty-four miles per hour in a thirty-five mile per hour zone. Cantrell testified that he was not going sixty-four miles per hour when he was stopped. He did not, however, contest the officer's assertion that he was speeding. Therefore, even if the jury believed Cantrell's testimony that he was not going sixty-four miles per hour, his testimony does not raise a factual issue as to whether the officer had probable cause to stop him. Accordingly, we conclude that an issue of fact was not raised and an instruction under article 38.23 of the Texas Code of Criminal Procedure was not required. See Chapman v. State, 961 S.W.2d 586, 587 (Tex. App.-Houston [1st Dist.] 1997, no pet) (concluding that appellant was not entitled to an article 38.23 instruction where appellant's license plate was displayed illegally and appellant's testimony did not dispute that fact). Therefore, we hold that the trial court did not err in overruling Cantrell's request for a probable cause instruction. We overrule Cantrell's first point.

IV. Cantrell's Right to Confrontation

At trial, Cantrell testified that on the day of his arrest he left his home to go to the gun range to fire his weapon, that when he left the gun range he went to his mother-in-law's house, and that he was on his way home from his mother-in-law's when he was stopped by police. Thereafter, during the State's cross-examination of Cantrell, the following exchange took place:

[Prosecutor]: What was the family event that you were going to that night?

[Cantrell]: Well, it wasn't a venture, it was a get together after a death of a family member.

[Prosecutor]: So is it fair to say that there had been a funeral that afternoon?

[Cantrell]: Yes. I didn't go to the funeral, but yes, there was a funeral—oh, well, yeah, yeah, a funeral.

[Prosecutor]: Would it surprise you that your wife testified back in July —

[Defense Counsel]: Objection, Your Honor, as to what persons who are not here would be saying. It denies us a right of confrontation, cross-examination, and is hearsay.

[The Court]: Tried and you keep talking about. Overruled. Be seated.

[Defense Counsel]: Note our exception.

[Prosecutor]: Would it surprise you that your wife testified back in July that ya'll were at that funeral?

[Defense Counsel]: Objection, Same objection, Your Honor.

[The Court]: Overruled.

[Defense Counsel]: Exception.

[Cantrell]: I didn't hear the question, I'm sorry.

[Prosecutor]: Would it surprise you that your wife testified back in July that ya'll were at that funeral together?

[Cantrell]: Well, yeah, it would be a total shock because we weren't . . . . I don't know where that testimony came from.

In his second point, Cantrell contends the trial court erred in overruling his objection to the unfounded assertion by the prosecutor that Cantrell's wife had previously testified that she and Cantrell were at a funeral together on that day. Specifically, Cantrell argues that the prosecutor's unfounded assertion is hearsay and its admission violated his constitutional right to confront and cross-examine the witnesses against him. Cantrell contends that this unfounded assertion implied that the prosecutor had evidence which would impeach his prior testimony. Finally, Cantrell asserts that the trial court exacerbated the error when it responded to defense counsel's objection by stating: "Tried and you keep talking about. Overruled. Be seated." The State does not respond to Cantrell's contention that the trial court erred, except to reply that the error, if any, was harmless beyond a reasonable doubt.⁴

Assuming, without deciding, that the trial court committed constitutional error when it overruled Cantrell's timely objection, we conclude beyond a reasonable doubt that the error did not contribute to Cantrell's conviction or punishment. See Tex. R. App. P. 44.2(a). To convict Cantrell of unlawfully carrying a handgun the State had to prove that Cantrell intentionally, knowingly, or recklessly carried the handgun on or about his person. See Tex. Penal Code Ann. § 46.02(a) (Vernon 2003). Cantrell admitted that he took the handgun with him on that day because he planned to go to the gun range and because he was carrying a large amount of money. Officer Aliese testified that he found the handgun in an open black bag on the passenger side of Cantrell's truck. Officer Collins testified that the black bag was within Cantrell's reach and that Cantrell did not have a license⁵ to carry the weapon. Cantrell did not contest these assertions except to assert that the black bag was zippered shut.

The question therefore is whether the trial court's overruling Cantrell's objection to the unfounded assertion by the prosecutor that Cantrell's wife had previously testified that she and Cantrell were at a funeral together was harmless, if error, beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the "harmless error" test, our primary question is whether there is a "reasonable possibility" that the improper argument might have contributed to the conviction. Mosley, 983 S.W.2d at 259.

Our harmless error analysis should not focus on...