Garry C. Cole v. The State of Texas--Appeal from 232nd District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-89-00117-CR

Case Date: 07/25/1991

Plaintiff: Garry C. Cole

Defendant: The State of Texas--Appeal from 232nd District Court of Harris County

Preview:Garry C. Cole v. The State of Texas--Appeal from
232nd District Court of Harris County
Cole v. State /**/
NO. 10-89-117-CR
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
*
GARRY C. COLE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
*
From 232nd Judicial District Court
Harris County, Texas
Trial Court # 472,425
*
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O P I N I O N
*
Appellant was convicted of the aggravated assault of a peace officer and his punishment was assessed at eight years in
prison, probated, and a $1000 fine. See Tex. Penal Code Ann. 22.02 (Vernon Supp. 1991). He contends the court erred
when it refused to allow him to make a bill of exception in question and answer form and refused to allow him to
question witnesses about the shooting of William Dozier. The judgment will be affirmed.
Shortly after being assaulted by Appellant and William Dozier in a parking lot, Officer Coons pursued Appellant in an
attempt to identify or apprehend him. Appellant escaped only to be apprehended later by other police officers. The
evidence conflicted on whether Coons identified himself as an officer before Appellant struck him. After Appellant had
fled, Coons and Dozier later confronted each other again, and as a result of this second confrontation, Coons shot and
fatally wounded Dozier.
When the court excluded evidence of Coons's shooting Dozier, Appellant sought to include the excluded testimony in
a bill by question and answer form. The court refused to allow him to make a bill in that manner, but allowed his
counsel to make a bill by stating the substance of the excluded evidence. Point one is based on the refusal to allow a
bill to be perfected by question and answer.
Bills of exception must be made in question and answer form at the request of a party. TEX. R. CRIM. EVID. 103(b);
TEX. R. APP. P. 52(b). Thus, the court erred when it refused to allow the bill to be made in that form. See Dopico v.
State, 752 S.W.2d 212, 215 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd). The question, however, is whether this
was harmless error. See TEX. R. APP. P. 81(b)(2). The State argues that the error was harmless because Appellant was
allowed to make the bill by stating the substance of the excluded testimony.
Although he was prevented from making the bill in question and answer form, he was allowed to perfect it by stating
what the excluded evidence would have been. See Gutierrez v. State, 764 S.W.2d 796, 798 (Tex. Crim. App. 1989).
Thus, one cannot say the court did not know what it was excluding. See id. The failure to allow a question-and-answer
bill of exceptions was harmless beyond a reasonable doubt because the substance of the excluded evidence has been
properly preserved for appellate review. Point one is overruled
Appellant argues in points two through eight that the court erred when it refused to allow him to question several
witnesses about the shooting of Dozier. Coons's fatal shooting of Dozier, which occurred subsequent to Appellant's
assault of Coons, was not relevant to whether Appellant had assaulted Coons knowing he was a police officer and,
thus, evidence of Coons's shooting Dozier was properly excluded. See Tex. R. Crim. Evid. 401, 402. Points two
through eight are overruled. The judgment is affirmed.
BOB L. THOMAS
Chief Justice
Before Chief Justice Thomas, Justice
Cummings and Justice Vance
Affirmed
Opinion delivered and filed July 25, 1991
Do not publish
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