Opinion
No. 06-16-00226-CR
07-06-2017
DESTIN T. DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Lamar County, Texas
Trial Court No. 26587 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
A Lamar County jury found Destin T. Davis guilty of three counts of delivery of more than four, but less than 200, grams of methamphetamine. It determined that the third count of delivery of a controlled substance occurred in a drug-free zone, and it further found Davis guilty of one count of possession of more than four, but less than 200, grams of methamphetamine, with intent to deliver. In accordance with the jury's punishment assessment, the trial court sentenced Davis to fifteen years' imprisonment for each offense.
On appeal, Davis argues that the trial court erred both in the manner in which it submitted to the jury the question of whether the third count of delivery of a controlled substance occurred in a drug-free zone and in excluding testimony from a police officer that Davis would be a good candidate for community supervision during the punishment phase of his trial. We conclude that (1) there is no error in the jury charge and that (2) the trial court did not abuse its discretion in excluding the police officer's testimony. Accordingly, we affirm the trial court's judgment.
(1) There Is No Error in the Jury Charge
Davis argues that the trial court's submission of the drug-free-zone question varied from the manner in which it was presented in the indictment. Based on this alleged variance, David contends that the trial court's jury charge was erroneous. We disagree.
We employ a two-step process in our review of alleged jury charge error. See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32).
The third count of the State's indictment alleged that Davis "did then and there knowingly deliver, by actual and constructive transfer, to Kevin Huff, a controlled substance, namely: Methamphetamine, in an amount of four grams or more but less than 200 grams." In a separate paragraph of the same count, the indictment further alleged that Davis committed the offense "in, on, or within 1,000 feet of a playground, to-wit: Wade Park, Paris, Lamar County, Texas."
The first portion of the trial court's jury charge, dubbed by Davis as the introductory paragraph, described the third count of the State's indictment as "Delivery of a Controlled Substance . . . in a Drug-free zone." Because it submitted the question of whether the offense occurred in a drug-free zone by a special issue, the application portion of the charge first required the jury to find whether Davis was guilty of delivery of a controlled substance. Then, the trial court instructed the jury as follows: " If , and only if , you have answered Guilty in the above verdict form will you then proceed to consider the special issue of whether the offense was committed in a Drug-free zone." The "Drug-free zone Special Issue" asked the jury whether the offense was committed "within 1000 feet of premises of a playground, to-wit: Wade Park, Paris, Lamar County, Texas." The jury answered this question in the affirmative.
Davis notes (1) that the first "introductory paragraph" of the trial court's charge used the term "Drug-free zone" instead of using the language of the indictment stating that the offense occurred "within 1,000 feet of a playground, to wit: Wade Park, Paris, Lamar County, Texas," and (2) that the application portion of the charge failed to include any mention of either a drug- free zone or the Wade Park playground. Thus, Davis argues that there is a fatal variance. Even though the drug-free-zone special issue tracked the indictment, Davis argues that the special issue "tracked [neither] the introductory paragraph of the Jury Charge . . . [n]or the application paragraph of the jury charge."
"A trial court must submit a charge setting forth the 'law applicable to the case.'" Lee v. State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref'd) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)). "The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and prevent confusion." Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).
Section 481.134(c) of the Texas Health and Safety Code raises the level of offense for delivery of a controlled substance "if it is shown on the trial of the offense that the offense was committed: (1) in, on, or within 1,000 feet of . . . a playground." TEX. HEALTH & SAFETY CODE ANN. § 481.134(c) (West 2017). However, "Section 481.134(c) does not create a separate offense." Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref'd) (citing Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. [Panel Op.] 1978)).
Here, the trial court's charge (1) described the allegations in the indictment in its introductory paragraph, (2) properly submitted a question on whether Davis was guilty of the offense of delivery of a controlled substance in the application portion of the charge, and (3) correctly submitted a special issue on the State's drug-free-zone allegation in a manner that tracked the language of the State's indictment. Because the jury was indeed required to find that the offense was committed "within 1000 feet of premises of a playground, to-wit: Wade Park, Paris, Lamar County, Texas," the trial court informed the jury of the applicable law and guided them in its application.
Finding no error in the trial court's jury charge with respect to the third count alleged in the State's indictment, we overrule this point of error.
(2) The Trial Court Did Not Abuse Its Discretion in Excluding Evidence
During the punishment phase of this trial, Davis introduced testimony from Kim Sanders, a retired undercover police officer formerly with the Dallas Police Department. In front of the jury, Sanders testified that Davis was not a "big" drug dealer, had no tattoos, had no gang affiliation, did not carry a weapon, and was simply a "bumbling clown." However, when Davis sought to introduce Sanders as an expert witness who would testify that Davis was a good candidate for community supervision, the trial court sustained the State's objection that Sanders, who had only known Davis as a result of several interviews comprising a total of five hours, was not qualified to render an expert opinion on the matter.
Davis argues that the trial court erred in excluding Sanders' testimony because Sanders had forty years of experience in law enforcement, which enabled him to formulate an opinion as to whether a person had a criminal mentality. Davis points out that Sanders had previously testified "a bunch" as to whether defendants were good candidates for community supervision.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs only if the decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
"Generally, evidence offered by either the defendant or the State regarding suitability of the defendant for probation at the sentencing phase of a trial is a matter 'relevant to sentencing' under article 37.07, section 3(a) of the code of criminal procedure when the defendant seeks probation." Patterson v. State, 508 S.W.3d 432, 436 (Tex. App.—Fort Worth 2015, no pet.) (quoting TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2017)) (citing Ellison v. State, 201 S.W.3d 714, 722-23 (Tex. Crim. App. 2006)). However, Article 37.07 "does not give the trial court unfettered discretion to admit all proffered punishment evidence; the trial court's discretion is necessarily limited by the requirement that punishment evidence must be admissible under the rules of evidence and not be excluded under some other statute or rule." Id. (citing Ellison, 201 S.W.3d at 721). Thus, "the trial court must still determine whether the suitability-for-probation opinion testimony is being offered by a witness who is qualified to give such testimony either as an expert or based on personal knowledge." Id. at 437 (citing Ellison, 201 S.W.3d at 723).
"A witness may qualify to give testimony both under Rule 702—because of his or her superior experiential capacity—and under Rule 701, if the witness's testimony and opinion are based on firsthand knowledge." Ellison, 201 S.W.3d at 723 (quoting Osbourn v. State, 92 S.W.3d 531, 533 (Tex. Crim. App. 2002)). In determining the admissibility of expert testimony, Rule 702 of the Texas Rules of Evidence imposes a special gatekeeping function on the trial court and requires that a trial judge make three separate inquiries: whether "(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see TEX. R. EVID. 702; Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). The question in this case focuses on the first factor. "Because the spectrum of education, skill, and training is wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications to assist the jury as an expert on a specific topic in a particular case." Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010).
In Ellison, the Texas Court of Criminal Appeals determined that a community supervision officer was qualified to render an expert opinion on the defendant's suitability for community supervision because, among other things, (1) she was employed by a community supervisions and corrections department, (2) her job duties included supervising cases, (3) she had a degree in psychology with an emphasis on sex crimes (the defendant pled guilty to sexual assault), (4) she had special training in supervising sex offenders, and (5) she developed "personal knowledge and perceptions of Ellison and the complainant during [her] interviews" with them. Ellison, 201 S.W.3d at 723.
Outside of the presence of the jury, Sanders testified that the basis of his opinion regarding Davis' future dangerousness and criminal mentality was formulated as a result of (1) his lengthy background in law enforcement, particularly as a narcotics undercover officer, (2) his several interviews with Davis, and (3) his review of police reports involving Davis. Sanders testified that he believed Davis had a "good heart" and that he did not have the sociopathic tendencies common among other drug dealers. Thus, Sanders opined that Davis would be capable of curbing his behavior, making him a good candidate for community supervision.
Yet, the State established that Sanders had no degree in psychology or psychiatry and that he had never taken any college classes in behavioral science. When the trial court asked what methodology Sanders had used in determining whether Davis was a good candidate for community supervision, Sanders responded that he formulated his opinion because Davis "had attempted to cooperate." After Sanders testified that he had rendered similar opinions in the past, the trial court asked whether he had completed any statistical analysis to determine whether his methodology was correct. Sanders said he had not completed any such analysis.
As the proponent of the evidence, Davis bore the burden to demonstrate that Sanders' testimony was admissible. See Coble, 330 S.W.3d at 275-76. Missing from Davis' proffer was any evidence that Sanders had "had any training, expertise, or experience in assessing when a defendant is a suitable candidate for probation." Patterson, 508 S.W.3d at 437-38 (finding error in admission of testimony whether defendant was suitable candidate for community supervision, since officers' experience in law enforcement did not qualify them to render such an expert opinion). Accordingly, we conclude that the trial court did not abuse its discretion in deciding to exclude Sanders' testimony. We overrule this point of error.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: May 31, 2017
Date Decided: July 6, 2017 Do Not Publish