Memorandum Opinion by Chief Justice Morriss

On Appeal from the 202nd District Court Bowie County, Texas
Trial Court No. 16F0657-202 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

At the Bowie County trial of Terry Thomas for unlawful possession of a firearm by a felon, the State introduced not only the .38 caliber Derringer pistol found in the vehicle Thomas was driving, but also some methamphetamine and a pipe found on the same occasion. In two points of error, Thomas complains that the methamphetamine was not admissible, its probative value was substantially outweighed by the danger of unfair prejudice, and its admission was harmful. We modify the judgment to accurately reflect details in the record and affirm the judgment as modified because (1) though the extraneous evidence was not admissible as same-transaction-contextual evidence, its admission was harmless; (2) even if the extraneous evidence was substantially more prejudicial than probative, harm still does not appear; and (3) the judgment should be modified to accurately reflect Thomas' plea of true to the punishment enhancements and to set out the proper statute of offense.

(1) Though the Extraneous Evidence Was Not Admissible as Same-Transaction-Contextual Evidence, Its Admission Was Harmless

On a clear morning in July 2016, Bowie County Deputy Westin Fannin saw Thomas driving without wearing a seatbelt. Fannin activated his patrol car's overhead lights and followed Thomas' truck. Thomas failed to promptly pull to the side of the road, though. Fannin then activated his siren and observed Thomas and the middle passenger "moving around." Thomas reached down low on the driver's side door. Fannin testified that Thomas passed several locations where he could have pulled over and traversed approximately one-half of a mile before pulling to the side of the road. As Fannin exited his patrol car, Thomas drove away. Fannin then was concerned that Thomas was fleeing. When Thomas eventually pulled into a residential driveway, Fannin ordered all three occupants to the ground and handcuffed them.

Thomas consented to a search of his person, and Fannin found two .38 bullets in Thomas' pocket. Fannin then requested and was granted permission to search the vehicle. Fannin immediately noticed that the driver-side door panel was loose and appeared to have been tampered with. There, Fannin found a .38 caliber Derringer handgun loaded with the same type bullets found in Thomas' pocket. Fannin said the area where the pistol was found was consistent with where Thomas had been seen reaching down during Fannin's pursuit of the vehicle. Thomas acknowledged to Fannin that he was the truck's owner.

At the beginning of trial, Thomas stipulated to having been convicted previously of the felony offense of possession of a controlled substance.

Thomas complains that the drugs and pipe should not have been admitted into evidence. A trial court's decision to admit or exclude evidence is reviewed under an abuse-of-discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion so long as the decision to admit evidence is within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). An appellate court may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

While extraneous evidence is not admissible during guilt/innocence to show the character of the defendant and that he or she acted in conformity with that character, such evidence may be admissible if it has relevance apart from its negative effect on the fact-finder's view of the defendant's character. TEX. R. EVID. 404(b). The permissible "purpose[s]" to which evidence of "crime[s], wrong[s] or act[s]" may be put include "proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Extraneous-offense evidence that logically serves any of these purposes is relevant beyond its tendency to prove the character of a person in order to show action in conformity therewith, provided its probative value is not substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403, 404(b).

An accused must be tried only for the offense with which he or she is charged. Trial for a collateral crime or for being a criminal generally is improper. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial. While such evidence will almost always have probative value, it forces the defendant to defend himself against uncharged crimes as well as the charged offense, and encourages the jury to convict a defendant based on his bad character, rather than proof of the specific crime charged.

In addition to the admissible purposes suggested in Rule 404(b), the Texas Court of Criminal Appeals has explained that evidence may be admissible if it is same-transaction-contextual evidence. "Such evidence imparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven." Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

The Texas Court of Criminal Appeals first clearly enunciated the exception in Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993) (op. on reh'g). Rogers was arrested and prosecuted for burglary of a habitation and possession of methamphetamine. Id. at 31. The methamphetamine was found stuffed into the cushions of a couch on which Rogers sat when police officers served a warrant for the burglary allegation. Id. The subsequent search of the house yielded marihuana found stuck between the mattress and box springs of a bed in a back bedroom. Id.

The Texas Court of Criminal Appeals concluded that the trial court erred in admitting the marihuana over Rogers' objections. Id. at 35. While it found that the "close question" of the relevance of the marihuana evidence was within the trial court's discretion, it also found admission of that evidence error. Id. at 33, 34. It recognized admission of such evidence as an exception under Rule 404(b) when the "evidence is necessary to the jury's understanding of the instant offense." Id. at 33 (citing Mayes, 816 S.W.2d at 86-87). The marihuana evidence was relevant to the charges being prosecuted, because "[e]vidence that appellant uses and sells one type of a controlled substance (marijuana) could arguably make it more probable that appellant would also be inclined to be in possession of another type of illegal substance (methamphetamine)." Id. at 32. Nevertheless, the State could have easily avoided referencing the marihuana in the process of proving the methamphetamine. Id. at 34.

The jury's understanding of the instant offenses would not have been impaired or clouded had the State described appellant's arrest without including the evidence concerning the marijuana. Such omission would not have caused the evidence regarding the instant offenses (burglary and possession of methamphetamine) to appear incomplete.

Rogers controls Thomas' situation. Before admitting evidence of the methamphetamine and pipe, the State had effectively proven its allegation of unlawful possession of a firearm by a felon. At the beginning of trial, Thomas stipulated to his status as a convicted felon. Fannin's traffic stop occurred within the five-year prohibition period for possession of a firearm. See TEX. PENAL CODE ANN. § 46.04(a)(1). Fannin had already testified to Thomas driving the truck, having two bullets in his pocket, and owning the truck. Thomas had been making furtive movements before stopping his truck, and the pistol was found within the area of Thomas' furtive movements. Finally, the pistol was loaded with the same caliber bullets Thomas carried in his pocket.

This evidence would allow a rational jury to find, beyond a reasonable doubt, that Thomas was a felon in unlawful possession of a firearm. There was no need to present the extraneous-offense evidence. Under the authority of Rogers, it was therefore error to admit this extraneous evidence. See also Aguillen v. State, 534 S.W.3d 701, 712 (Tex. App.—Texarkana 2017, no pet.) (in prosecution for indecency with child, extraneous-offense evidence of defendant's physical abuse of other children "superfluous").

Error in admission of evidence is non-constitutional and will be disregarded unless "the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see TEX. R. APP. P. 44.2(b). If we, as the reviewing court, have "fair assurance that the error did not influence the jury, or had but a slight effect," we will not reverse the trial court's ruling. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

We are confident the erroneous admission of the methamphetamine had little to no effect on the jury's conviction of Thomas. Among the reasons, we include these:

• Thomas acted suspiciously in his delayed response to Deputy Fannin's attempt to conduct a traffic stop, including Thomas' furtive movements, and initial stop, then driving away again and continuing to defy Fannin's lights and siren;

• While he objected to the methamphetamine found near where he had been sitting in the truck, Thomas did not object to the pipe found in the same vicinity;

• Thomas had already stipulated to his status as a felon within the five-year preclusion period of firearm possession;

• He was shown to be the registered owner of the truck he drove and acknowledged ownership; and

• The prosecution did not mention the methamphetamine in any of its jury arguments.

(2) Even If the Extraneous-Offense Evidence Was Substantially More Prejudicial than Probative, Harm Still Does Not Appear

Thomas also claims that the trial court erred in weighing any probative value of the methamphetamine against the substantial risk of unfair prejudice. See TEX. R. APP. P. 403. Even if the trial court had erred in its conclusion on this matter, the error would still be harmless.

When an appellant challenges a trial court's Rule 403 ruling, we balance the following considerations:

(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Of course, these factors may well blend together in practice.

Assuming arguendo that the trial court erred and the methamphetamine's slight, if any, probative value was substantially outweighed by the danger of unfair prejudice, that error would still be subject to a harmless error analysis. See Colvin v. State, 54 S.W.3d 82, 85 (Tex. App.—Texarkana 2001, no pet.). In light of the evidence summarized above, we still conclude that such could not have had a substantial and injurious effect or influence in determining the jury's verdict. This issue is overruled.

(3) The Judgment Should Be Modified To Accurately Reflect Thomas' Plea of True to the Punishment Enhancements and To Set Out the Proper Statute of Offense

Appellate courts "have the authority to reform judgments and affirm as modified in cases where there is nonreversible error." Ferguson v. State, 435 S.W.3d 291, 293-94 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments).

The court's judgment reads "N/A" in the spaces for pleas and findings on the two alleged enhancement paragraphs. However, Thomas pled "true" to both allegations when they were read by the State at the beginning of the punishment phase. The jury found the enhancement allegations true. Also, the judgment lists the statute of offense as Section 46.06 of the Texas Penal Code, where this offense is actually codified at Section 46.04. Accordingly, we modify the trial court's judgment to read that Thomas pled true to both enhancement paragraphs and that the jury found both paragraphs to be true. We also correct the statute of offense as recited in the judgment.

As modified, the judgment of the trial court is affirmed.

Josh R. Morriss, III

Chief Justice Date Submitted: April 23, 2018
Date Decided: May 2, 2018 Do Not Publish