COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00314-CR

LEO CLEMENT APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Leo Clement of possession of 

methamphetamine, and the trial court sentenced him to seven years’

confinement. In his sole point, Appellant contends that the trial court erred by

overruling his objection to a question the prosecutor asked him. Because the 

trial court committed no error, we affirm the trial court’s judgment.

 

1See Tex. R. App. P. 47.4.
2

During cross-examination, the State asked Appellant whether he had ever 

used methamphetamine and whether he had been placed on probation for using 

methamphetamine:

[State]: Earlier you said that you never in your life used 

methamphetamine. I’m going to give you one chance to take that 

back if that’s not true.

[Appellant]: No, ma’am. I’ve never used it.

[State]: Do you recall being put on probation for possession of 

controlled substance under one gram in the 372nd District Court in 

this county, Tarrant County, on—in November of 2004? Do you 

recall that?

[Appellant]: Yes, ma’am.

[State]: Okay. And do you recall that while you are—do you 

recall getting—putting—being put on probation for that offense?

[Appellant]: Yes, ma’am.

[State]: And do you recall in March, specifically March 21st, 

2005, testing positive for methamphetamine while you were on 

probation?

[Appellant]: No, ma’am. I’ve handled it before. I’ve never—

never used it.

[State]: Then why were you revoked on probation?

[Appellant]: So many dirty UAs and failure to report and no 

fees. I didn’t pay my fees. And there’s a number of reasons.

[State]: So if there is a petition to revoke your probation that 

the probation department filed alleging that you used 

methamphetamine on March 21st, 2005, the Tarrant County 

probation officer is lying?

[Appellant]: It was in my system. That doesn’t mean I used it 

necessarily, because I’ve never used it.
3

[State]: So you are admitting that methamphetamine was in 

your system?

[Appellant]: Yes, ma’am. If they tested it and it came, then I 

suppose it was. I can’t change it.

On redirect examination, Appellant’s attorney attempted to clarify whether 

Appellant had pled true to methamphetamine use:

[Defense Counsel]: [Y]ou mention on your probation that got 

revoked there were several allegations in the—in the document 

asking for your probation to be revoked. . . . Do you remember 

which ones you pleaded true to and which ones you pled not true 

to?

[Appellant]: I pled true to all—everything I’ve done.

[Defense Counsel]: I know. But, I mean, in this specific

instance . . .

[Appellant]: Yes, sir.

[Defense Counsel]:—charge. Because you could be revoked 

for pleading true to only one of those; is that correct?

[Appellant]: Yes. You can be, yes, sir.

[Emphasis added.]

Then on re-cross-examination, the State questioned Appellant about 

whether he had just testified that he had pled true to methamphetamine use:

[State]: [Y]ou just admitted that you pled true to the 

probation department’s allegation that you used 

methamphetamine, correct?

[Appellant]: I’m sorry?

[State]: You said earlier, just to your defense attorney, 

that you pled true to all of those allegations.
4

[Defense Counsel]: Objection, Your Honor. I don’t think 

that’s what he said. I think he said he pled true to something.

THE COURT: I’ll overrule the objection.

[State]: Did you earlier say that you pled true to all of 

those allegations?

[Appellant]: To the things I’ve used, yes, ma’am.

[Emphasis added.]

On appeal, Appellant argues in one point that the trial court erred by

overruling his attorney’s objection to the State’s question about whether he had 

pled true to the probation department’s allegation that he had used 

methamphetamine. Appellant specifically contends that the prosecutor 

improperly prefaced the question with mischaracterized earlier testimony—that 

Appellant had pled true to using methamphetamine—and that the improper 

question was therefore prejudicial because it assumed facts not in evidence on a 

critical issue in the case. As the Texas Court of Criminal Appeals has explained,

When the defendant in a criminal case voluntarily takes the 

stand and testifies in his own behalf, he occupies the same position 

and is subject to the same rules of cross-examination as any other 

witness. He may be contradicted, impeached, made to give 

evidence against himself, cross-examined as to new matter, and 

treated in every respect as any other witness testifying in behalf of 

the defendant, except when there are overriding constitutional or 

statutory prohibitions; for example, where a statute forbids certain 

matters to be used against him, such as proof of his conviction on a 

former trial of the same case, or his failure to testify on a former trial, 

or a confession made while he was in jail without his having been 

first cautioned that it might be used against him.

This Court rarely reverses a conviction of a crime solely 

because an improper question was propounded to the defendant as 
5

a witness. To cause reversal the question must be obviously 

harmful to the defendant.

In deciding such question it must be remembered that each 

case has its own characteristics and this Court will look at the entire 

record with the surrounding circumstances, the nature of the 

evidence sought and its possible relationship to other testimony in 

order to determine the probability or possibility of injury.2

Appellant testified in this proceeding that he had never used 

methamphetamine, yet he admitted that drug tests had shown methamphetamine 

in his system and that methamphetamine traces might have accompanied the 

illicit drugs that he had admittedly intentionally used. Further, the prosecutor 

could have reasonably taken Appellant’s statement, “I pled true to all,” before his 

ambiguous qualifier, as evidence that he had in fact pled true to the allegation 

that he had used methamphetamine. While Appellant argues that the prosecutor 

“knew (or should have known)” that the question she posed was not factually 

correct, Appellant directs us to no place in the record that supports his position.3

We therefore hold that the question was proper.

Alternatively, the State asked the challenged question or a variation of the 

question three times. Appellant objected only once, to the second question 

propounded, and that objection was actually a statement that counsel did not 

 

2Guzmon v. State, 697 S.W.2d 404, 408 (Tex. Crim. App. 1985), cert. 

denied, 475 U.S. 1090 (1986) (internal quotations and citations omitted).

3See Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App.) (stating that 

the court “has no obligation to construct and compose appellant’s issues, facts, 

and arguments ‘with appropriate citations to authorities and to the record’”), cert. 

denied, 555 U.S. 1050 (2008).
6

“think that’s what [Appellant] said.” We therefore alternatively hold that Appellant 

failed to preserve his complaint for our review.4 We overrule Appellant’s sole 

point.

Having overruled Appellant’s sole point, we affirm the trial court’s 

judgment.

LEE ANN DAUPHINOT 

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 28, 2012

 

4See Tex. R. App. P. 33.1(a)(1)(2); Cockrell v. State, 933 S.W.2d 73, 89 

(Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997).