Bernel J. Lindsey v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00154-CR

Bernel J. Lindsey,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 339th District Court

Harris County, Texas

Trial Court # 915,921

MEMORANDUM Opinion

          Bernel Lindsey was convicted of murder and sentenced to 45 years in prison.  Tex. Pen. Code Ann. § 19.02 (Vernon 2003). His single issue on appeal is whether the trial court erred in refusing to allow him to impeach a witness with a prior written statement.  Tex. R. Evid. 613.

          At trial, the victim’s father identified an autopsy photograph of his son.  A CSI employee described the scene of the shooting—in an apartment—and several photographs.  Officers testified about the investigation and took statements implicating Lindsey. Donito Harris, who was eight years old at the time of the event, testified that he heard a knock on the door, saw someone go down the hallway, then heard a shot.  He saw his father, Genero Hogan, with a shotgun, but he never saw the victim with the shotgun.  Hogan testified that after a late-night conflict with two females, the victim had poured beer on one of them.  The victim later put his shotgun by the front door, so Hogan suspected that the victim expected trouble.  The next afternoon, Lindsey and one of the females came to the door, and he, Hogan, told them he would get the victim.  He went back to his bedroom, heard the door being kicked in, saw Lindsey pull a pistol from his waist and fire it.  He said he could not see the victim at the time of the shot.  He ran to the victim, who was bleeding and holding a shotgun. He then took the shotgun and went outside, but he did not tell the officers about the shotgun when he gave a statement.

          Lindsey testified that the female called him after the beer-pouring incident.  He went from Lake Charles to Houston, arriving about noon the next day. He followed the female to “someone’s house,” where she knocked on the door.  Lindsey said after one person answered the door and they waited for fifteen minutes, he saw someone holding a gun and saying “move dog, move dog.”  He pushed the door open and saw a man pointing a gun at him.  He pulled his gun, “just shot,” and turned around and left.  He said he did not know he had hit anyone.

          The jury was charged on self-defense, but rejected it in favor of a guilty verdict.

          The issue on appeal is whether the court improperly restricted Lindsey’s attempts to impeach Donito Harris’s testimony with a prior statement in which he said he saw the victim in the hallway with a shotgun just before he heard the shot.  Lindsey says this is important because the layout of the rooms was such that Harris could not have seen the victim in the hallway with a shotgun unless the victim was near the front door.

          The State’s response points out that Harris’s prior written statement is not in the record, and thus Lindsey has failed to preserve his complaint by making an offer of proof.   Tex. R. Evid. 103(a)(2).  We agree with the State.

          Lindsey’s issue is overruled, and the judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed December 8, 2004

Do not publish

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