Opinion
No. 07-16-00328-CR
05-24-2018
DANIEL LEE BROWN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court Randall County, Texas
Trial Court No. 26,427-C; Honorable Ana Estevez, Presiding
MEMORANDUM OPINION
Before CAMPBELL, PIRTLE, and PARKER, JJ.
Following a plea of not guilty, Appellant, Daniel Lee Brown, was convicted by a jury of evading arrest, enhanced by a prior felony conviction. Punishment was assessed by the trial court at eight years confinement and a $500 fine. By a sole issue, Appellant maintains the trial court improperly admitted evidence of conduct for which he had been previously acquitted. We affirm.
TEX. PENAL CODE ANN. § 38.04(a) (West 2016). The offense is a third degree felony when the actor uses a vehicle while in flight and has a previous conviction for evading arrest. Id. at (b)(2)(A).
TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2017). Appellant's prior conviction for robbery elevated punishment to that for a second degree felony.
BACKGROUND
At approximately 3:00 p.m. on November 2, 2015, while Officers Jonathan Heath and Michael Williams were on patrol on their motorcycles, Officer Heath observed the driver of a white Ford truck with dual wheels on the rear axle commit a traffic offense. He activated his emergency lights and attempted to make a stop. When the driver refused to stop, Officer Williams assisted in the pursuit. He pulled parallel to the truck and ordered the driver to stop. Again, the driver refused to stop. After following the truck and observing more traffic offenses, the officers abandoned the pursuit for safety reasons.
Officer Heath provided central dispatch with a description of the truck, including that it had Montana license plates, and Officer Williams provided a description of the driver, later identified as Appellant. The information provided to the dispatcher was broadcast to other law enforcement agencies.
The truck was registered to the driver's mother who lived in Montana and it was used for a business that operated in a shop on the same property as the driver's residence.
Although the rear window of the truck was tinted, Officer Williams was able to see the driver through a rolled-down window when he pulled up alongside the truck.
Later that afternoon, Department of Public Safety Trooper Stacy Johnson encountered the truck, and in response to the earlier dispatch, he pursued the truck. He activated his unit's emergency lights and siren in an attempt to stop the truck but it continued to travel at a high rate of speed. Another trooper continued the chase when Trooper Johnson realized his unit was low on gas. Eventually, Appellant turned onto a rural dirt road and stopped at a residence. He quickly exited the truck and ran inside a house.
Appellant's then girlfriend emerged from a shop next to the residence when she heard the sirens. By this time, numerous vehicles and law enforcement officers had surrounded the residence. About an hour later, Appellant and three other individuals came out of the residence and surrendered. Appellant was arrested for evading arrest.
Appellant was charged with two counts of evading arrest with a vehicle for fleeing from Officer Jonathan Heath (Count I) and for fleeing from DPS Trooper Stacy Johnson (Count II). A jury acquitted him of Count I and could not reach a unanimous verdict on Count II, resulting in a hung jury. Shortly thereafter, he was retried on Count II.
At a pretrial hearing, defense counsel objected to any testimony from Officers Heath and Williams about the first pursuit that had resulted in the acquittal. The objections were based on double jeopardy grounds and on Rules 403 and 404b of the Texas Rules of Evidence. The trial court overruled both objections but granted a running objection for each theory.
During its opening statement, the State referenced the pursuit by Officers Heath and Williams. After defense counsel announced that the details of the pursuit were not in dispute, he proposed to the jury, "[w]hat is in dispute in this case is evidence beyond a reasonable doubt as to whom was operating the truck." He forecast that there would be "no clear identification" of the driver from any of the law enforcement officers. He reasoned that because the truck was a company truck accessible to numerous persons, it could have been driven by someone else at the time of the pursuit. Notwithstanding his defense, a jury convicted Appellant of evading arrest with a vehicle from Trooper Johnson.
STANDARD OF REVIEW
We review a trial court's evidentiary rulings for an abuse of discretion; Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016), as well as its decision on whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). As long as the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
Furthermore, a trial court's decision to admit evidence of an extraneous matter is generally within the zone of reasonable disagreement if it shows that (1) the extraneous matter is relevant to a material, non-propensity issue and (2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). We will uphold the trial court's ruling if it is correct on any applicable theory of law. Jenkins v. State, 493 S.W.3d 583, 607 (Tex. 2016).
ANALYSIS
By a sole issue, Appellant challenges the trial court's admission of testimony by Officers Heath and Williams of his extraneous conduct from the evading arrest offense for which he was acquitted. He argues the wrongfully admitted evidence violated the Double Jeopardy Clause of the Texas and United States Constitutions and the Texas Rules of Evidence.
DOUBLE JEOPARDY
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. V. The clause, applicable to states through the Fourteenth Amendment protects an accused against a second prosecution for the same offense following an acquittal. Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)).
In referring to the testimony of Officers Heath and Williams about the evading arrest charge for which he was acquitted, Appellant makes the following statement in his brief, "Double Jeopardy provisions of the Texas and United States Constitutions preclude its admission." No further argument or analysis is offered on how double jeopardy precludes admission of the complained-of testimony. Consequently, Appellant has not adequately briefed the issue for consideration on appeal. See TEX. R. APP. P. 38.1(i) (requiring a clear and concise argument for the contentions made with appropriate citations to authorities and to the record). See also Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (finding that a court is under no obligation to make an argument for an appellant when an issue is inadequately briefed).
EXTRANEOUS CONDUCT
Evidence of extraneous conduct is not admissible during the guilt/innocence phase of trial to show that a defendant committed the charged offense in conformity with a particular character trait. See TEX. R. EVID. 404(a)(1). See also Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). However, extraneous conduct evidence may be admissible when it has relevance apart from character conformity. Devoe, 354 S.W.3d at 469. Evidence is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence. Smith v. State, 5 S.W.3d 673, 679 n.13 (Tex. Crim. App. 1999). Evidence of extraneous conduct is also admissible to rebut a defensive theory. Hudson v. State, 112 S.W.3d 794, 801 (Tex. Crim. App. 2003, pet. ref'd). When a defendant raises a defensive theory, he opens the door for the State to rebut that theory if the extraneous conduct has characteristics common with the offense for which the defendant is being tried. Id.
Notwithstanding the relevance of evidence of extraneous conduct, it may be inadmissible under Rule 403 of the Texas Rules of Evidence if the trial court determines that the probative value of the evidence is outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. When analyzing these competing interests, the trial court should consider the following factors: (1) the probative value of the evidence; (2) the potential for the evidence to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for that evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). The trial court is presumed to have engaged in the required balancing test once a party objects under Rule 403 and the trial court rules on that objection. Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997).
We begin with the tenet that evidence of a "crime, wrong, or other act" is generally not admissible to show character conformity. TEX. R. EVID. 404(b)(1). However, such evidence may be admissible for other purposes, including proof of identity. Id. at (b)(2).
Regarding the four factors we must consider in evaluating the propriety of admission of extraneous conduct evidence, we begin with the probative value of that evidence. Rule 403 favors the admissibility of relevant evidence and there is a presumption that relevant evidence will be more probative than prejudicial. Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996). Appellant concedes the proffered testimony does make a fact of consequence more probable than not—i.e., whether he fled from Trooper Johnson.
At page 11 of his brief, Appellant tacitly concedes that the extraneous conduct from his acquittal "may have been relevant."
Here, Appellant's challenge concerning the identity of the person fleeing from Trooper Johnson weighs in favor of admission of the testimony of Officers Heath and Williams. Although Officer Heath never saw the driver, his testimony offers contextual background on why Officer Williams positioned his motorcycle parallel to the truck so he could order the driver to stop after he refused to stop in response to Officer Heath's emergency lights.
Officer Williams testified that he looked at the driver "eye to eye" and described him as "a skinny white male. Shaved head. He was tan. Had sunk-in eyeballs. And I could tell he had tattoos on his left arm." When cross-examined about the certainty of his identification of Appellant, he answered, "I felt very comfortable that it was the same person that was driving that [dually]." The testimony of both officers was highly probative thereby satisfying the first factor.
Relying solely on his acquittal, Appellant argues that the second factor weighs against admission of the evidence because it had the potential to improperly impress the jury. We disagree. The extraneous conduct in question was the first phase of a continuous pursuit by different law enforcement agencies. There was but a slight chance that the testimony from Officers Heath and Williams about the origin of the pursuit and the description of driver would lead the jury to form an irrational yet indelible impression regarding Appellant's character. Therefore, this factor also weighs in favor of the trial court's ruling.
The evidence showed that the first pursuit began around 3:00 p.m. and Appellant's ex-girlfriend testified that when she heard the sirens and saw the truck parked at the residence it was sometime after 3:00 p.m.
The third factor—the time needed to develop the evidence—does not weigh against admission of the testimony. The testimony of the officers covers approximately fifty pages in over 200 pages and the video exhibit played for the jury is less than eight minutes long—not an inordinate amount of time. See Patterson v. State, No. 08-13-00111-CR, 2015 Tex. App. LEXIS 299, at *16 (Tex. App.—El Paso Jan. 14, 2015, pet. ref'd) (mem. op., not designated for publication) (finding that sixty pages out of over 200 pages in the reporter's record was minimal).
The final factor weighs in favor of admissibility. The State's need for the testimony was great. By making identity the sole disputed issue from opening arguments and throughout trial, Appellant opened the door for the State to rebut his defensive theory and prove he was driving the truck when Officer Heath attempted to stop it, specifically considering that other evidence of identity was weak.
Trooper Johnson testified he saw a white male with a short haircut exit the truck when it finally stopped. Another trooper, who briefly saw the driver exit the truck, testified he was a white male. Appellant's ex-girlfriend, who had given a statement that she assumed Appellant was driving the truck because he had left in it earlier that day, equivocated from her statement at trial. Evidence from the evading arrest charge for which Appellant was acquitted became crucial to establishing his identity for the charged offense. We conclude that after balancing the required factors, the trial court acted within the zone of reasonable disagreement when it determined the probative value of the evidence was not substantially outweighed by any prejudicial effect.
Moreover, the State offers the additional theory that testimony from Officers Heath and Williams was admissible as same transaction contextual evidence. Such evidence is deemed admissible as an exception to the propensity rule where "several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others." Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Same transaction contextual evidence should only be admitted to the extent that it is necessary to the jury's understanding of the offense or when the facts and circumstances of the offense would make little or no sense without also bringing in this evidence. England v. State, 887 S.W.2d 902, 915 (Tex. Crim. App. 1994).
Officer Heath testified that his attempted traffic stop of Appellant occurred at approximately 3:00 p.m. Officer Williams testified that he did not "know the exact time between the time the highway patrol located the vehicle and the driver and how much time lapsed." When asked if it could have been as late as 5:00 p.m. or 6:00 p.m. when the second pursuit ended, he answered, "I don't even think it was that long." Appellant's ex-girlfriend testified that she heard the sirens and saw the truck parked at the residence sometime after 3:00 p.m. Based on the evidence, the first pursuit by Officers Heath and Williams was so connected by temporal proximity to the pursuit by Trooper Johnson that an indivisible criminal transaction was formed. Admission of the officers' testimony permitted "the State to rationally present evidence of the charged offense." Mayes v. State, 826 S.W.2d 79, 86 (Tex. Crim. App. 1991). We cannot say the trial court abused its discretion in admitting evidence from the earlier pursuit. Appellant's sole issue is overruled.
CONCLUSION
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice Do not publish.