Opinion
No. 08-15-00280-CR
07-19-2017
BRIAN ANTHONY GAMERO, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the Criminal District Court No. 1 of El Paso County, Texas (TC# 20140D02777) OPINION
Appellant Brian Anthony Gamero appeals his convictions of intoxication manslaughter, intoxication assault, and unlawful possession of a controlled substance arising from a car collision involving Appellant and two other drivers. In three issues, Appellant contends the trial court erred when making evidentiary rulings during both the guilt and punishment phase of his criminal trial. We affirm.
I. BACKGROUND
On April 19, 2014, Police Officer Dominic Chacon was driving southbound on Zaragoza street in El Paso when he observed a fight in a bowling alley parking lot. After making a U-turn, he witnessed a vehicle collision happen in front of him, which he described as causing a loud, chaotic, and traumatic sound, almost like an explosion. The collision was captured on his dashcam unit. Chacon described that when he was driving northbound, his attention was drawn to flashing lights coming from oncoming or southbound traffic. He saw a vehicle dark in color, later identified as a PT Cruiser, traveling at a high rate of speed, that "clipped" a second vehicle, silver in color. The contact forced the silver vehicle into the opposite lane of traffic causing a gray pickup truck to collide into it. The PT Cruiser also spun from the contact and crossed over several lanes before coming to rest in front of Chacon's police unit. Chacon immediately called for assistance and subsequently checked on persons involved. Appellant was the driver of the PT Cruiser and he was not significantly injured. Chacon next found Crystal Saldaña unconscious behind the wheel of her silver Mazda. Officer Jacob Kiesel soon arrived to assist and he found Crystal unresponsive, with shallow breathing and a very faint pulse. When Kiesel realized that she was no longer breathing, he and others pulled her from her vehicle and administered CPR. Crystal died soon thereafter. The driver of the pickup truck survived, but he suffered serious injuries.
An ambulance transported Appellant to a local hospital where another officer conducted standardized field sobriety tests. The officer observed that Appellant had bloodshot eyes, an emanating odor of alcohol, slurred speech, and dilated pupils. After Appellant refused to voluntarily provide a blood sample, the officer obtained a warrant and a sample of blood was taken. The testing showed the blood-alcohol concentration exceeded the legal limit, as well as the presence of other substances including THC, the active drug in marihuana, Xanax, cocaine, butalbital, a sedative-hypnotic barbiturate, and codeine.
Back at the scene, Officer Kiesel continued to investigate and approached the PT Cruiser's already-open passenger door with two other officers. Shining his flashlight inside the vehicle, Officer Kiesel noticed a small, clear baggie containing a white, powdery substance which he believed, from his experience and training, to be cocaine. Eventually, officers arranged for transport of Appellant's PT Cruiser to a fenced-in, police impound lot, not open to the public, and used to hold vehicles for further investigations. Officer Gabriel Corral was later asked to run his canine partner "Kim" by Appellant's car. As Corral ran Kim by Appellant's vehicle, Kim alerted to the driver's side door. Proceeding to inspect the area that drew Kim's attention, Corral found a magnetic key holder attached to the frame underneath the vehicle. Inside, he found small plastic bags containing a white, powdery substance and another bag containing a green substance. Corral then called Detective Octavio Pasillas to inform him of the findings. The officers arranged for Appellant's PT Cruiser to be moved into a bay area where Pasillas secured the narcotics.
In a five-count indictment, Appellant was charged with: intoxication manslaughter; intoxication assault; unlawful possession with intent to deliver a controlled substance, to wit, cocaine, one to four grams; manslaughter; and, aggravated assault. Among the evidence presented during the guilt phase of the trial, the State offered photographs of the deceased victim taken at the time of the autopsy, which were admitted over Appellant's objections. The jury returned a guilty verdict against Appellant for intoxication manslaughter, intoxication assault, and unlawful possession of a controlled substance, cocaine.
During the punishment phase of the trial, the State called Officer Shawn Cowie to testify regarding a prior arrest of Appellant on January 31, 2013, for the offenses of driving while intoxicated and possession of a controlled substance, cocaine. Following deliberations, the jury assessed the maximum fine and the following punishment for each charge: twenty years' confinement for intoxication manslaughter, ten years' confinement for intoxication assault, and ten years' confinement for possession of a controlled substance, cocaine, one to four grams, with all confinement to be served at the Texas Department of Criminal Justice. The trial court sentenced Appellant in accordance with the jury's assessment.
II. DISCUSSION
Appellant Gamero raises three issues in this appeal. First, Appellant contends that the trial court erred in denying his motion to suppress the evidence obtained at the police impound lot. Second, he contends the court erred when it admitted autopsy photographs of the deceased victim during the guilt portion of the trial. Lastly, he contends the court erred in denying his motion to suppress evidence of his prior arrest for driving while intoxicated and possession of a controlled substance.
A. Suppression of Narcotics found in Stored Vehicle
In his first issue, Appellant contends that investigating officers violated his Fourth Amendment rights in conducting a search of his vehicle while it was stored at the police impound lot. Appellant contends that prior to the warrantless search, the officers at the lot did not have probable cause to conduct a lawful search, nor were there any exigent circumstances then present. In response, the State argues that Appellant waived error, if any, by giving "no-objection" responses when both the photographs depicting the narcotics and a lab report of the testing were offered into evidence during the trial. The State also argues, on the merits of the warrantless search, that the officers had probable cause, based on collective knowledge acquired at the scene of the collision and afterward at the impound lot.
1. Preservation of Error
"Preservation of error is a systemic requirement on appeal." Ford v. State, 305 S.W.3d 530, 532 (Tex.Crim.App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005)). Reviewing courts should not address the merits of an issue if the issue is not preserved. Id. at 532-33. To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. Priester v. State, 478 S.W.3d 826, 840 (Tex.App.--El Paso 2015, no pet.) (citing TEX.R.APP.P. 33.1(a)(1)). A "defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Id. (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996)). If, after the trial court has made a preliminary ruling on the objection, the objecting party later affirmatively states that it has no objection to the admission of the evidence, he may waive his previously preserved error. Thomas v. State, 408 S.W.3d 877, 885-86 (Tex.Crim.App. 2013); Estrada v. State, 313 S.W.3d 274, 302 (Tex.Crim.App. 2010). To assess whether a waiver of previously preserved error has occurred, we first determine whether "the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his 'no objection' statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal[.]" Thomas, 408 S.W.3d at 885. If it remains ambiguous as to whether waiver was intended after reviewing the entire record, we should resolve the ambiguity in favor of a finding of waiver. Id.; Stairhime v. State, 463 S.W.3d 902, 906 (Tex.Crim.App. 2015).
The record in the present case shows that Appellant initially objected to the warrantless search of his vehicle at the impound lot and moved to suppress the narcotics recovered from the magnetic key holder found attached to the frame underneath the vehicle. The trial court overruled Appellant's objection and denied his motion to suppress. Thereafter, the State moved to admit other, similar evidence including photographs of the narcotics and a lab report of results. When the State thereafter offered into evidence the narcotics themselves, Appellant stood by his previous objections.
In reviewing the record, the State correctly points out that during Officer Corral's testimony, the State moved to admit a photo of the magnetic key holder with the small bags of narcotics. After some discussion over Appellant's relevance objection, Appellant stated that he had no other objection. Then later, Appellant stated that he had no objection to the lab report connected to the narcotics found in the magnetic key holder.
The State fails to recognize, however, that Appellant asserted an objection to the lab report and alternatively offered the report with his redactions. More importantly, the State fails to acknowledge a later discussion in which Appellant objected to the cocaine the State offered into evidence stating, "We have objected prior to this and we object again." This later discussion evinces Appellant's continued opposition to the admission of the narcotics offered by the State. Thus, we find that Appellant's subsequent objections demonstrate that he did not intend to abandon his Fourth Amendment objections and we decline to dispose of this case on preservation grounds, as suggested by the State. See Bouyer v. State, 264 S.W.3d 265, 269 (Tex.App.--San Antonio 2008, no pet.).
2. Motion to Suppress
Appellant contends the trial court erred in denying his motion to suppress the narcotics found in his vehicle at the impound lot arguing that the officers did not have probable cause to search his vehicle and no exigent circumstances existed to justify the warrantless search.
a. Standard of Review
We review a trial court's ruling on a motion to suppress under an abuse of discretion standard and will disturb the lower court's ruling only if it falls "outside the zone of reasonable disagreement." Martinez v. State, 348 S.W.3d 919, 922 (Tex.Crim.App. 2011); State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). We afford almost total deference to the trial court's determination of historical facts—if supported by the record. Wade v. State, 422 S.W.3d 661, 666 (Tex.Crim.App. 2013); State v. Woodard, 341 S.W.3d 404, 410 (Tex.Crim.App. 2011) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). We view the evidence in the light most favorable to the ruling. Wade, 422 S.W.3d at 666; Woodard, 341 S.W.3d at 410 (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008)). We afford the prevailing party the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from it. Wade, 422 S.W.3d at 666-67; Woodard, 341 S.W.3d at 410. We review de novo the trial court's application of the law to the facts. Wade, 422 S.W.3d at 667; Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010). We will uphold the trial court's ruling if it is reasonably grounded in the record and correct on any theory of law applicable to the case. Wade, 422 S.W.3d at 667; Valtierra, 310 S.W.3d at 447-48.
b. The Fourth Amendment
The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S.CONST. amend. IV. "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Welch v. State, 93 S.W.3d 50, 52 n.7 (Tex.Crim.App. 2002). Among the exceptions is the search of an automobile based on probable cause to believe it contains evidence of a crime. See Neal v. State, 256 S.W.3d 264, 282 (Tex.Crim.App. 2008). Under the automobile exception, law enforcement officials may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains contraband. Keehn v. State, 279 S.W.3d 330, 335 (Tex.Crim.App. 2009). The automobile exception is justified because the ready mobility of a vehicle creates an exigency and because an individual has a reduced expectation of privacy in a vehicle since it is subject to "pervasive [government] regulation." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (citing California v. Carney, 471 U.S. 386, 391-92, 105 S.Ct. 2066, 2069-70, 85 L.Ed.2d 406 (1985)); Chapa v. State, 729 S.W.2d 723, 727 (Tex.Crim.App. 1987). If this exception applies, law enforcement officers may search "every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); Neal, 256 S.W.3d at 282. Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App. 2005); see also Matter of V.G., 513 S.W.3d 815, 825 (Tex.App.--El Paso 2017, no pet.).
c. Analysis: Suppression
Appellant concedes that his vehicle was parked inside a secure impound lot at the time of its search. Appellant correctly states that Officer Corral did not seize any of the evidence the canine alerted to but instead called Detective Pasillas, who then conducted a search and seizure of the narcotics in the magnetic key holder after moving the vehicle. He argues that Pasillas, as the seizing officer, did not himself have probable cause to conduct a warrantless search of Appellant's vehicle.
We first note that a sniff of the exterior of a car by a trained canine during a lawful traffic stop is not construed as a search within the meaning of the Fourth Amendment. See Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005); United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). A dog alerting to the presence of narcotics in a vehicle is sufficient to establish probable cause to search a vehicle. See Parker v. State, 182 S.W.3d 923, 924 (Tex.Crim.App. 2006); Branch v. State, 335 S.W.3d 893, 901 (Tex.App.--Austin 2011, pet. ref'd) ("The law is well established that as soon as a drug-detection dog alerts on a car, officers have probable cause to search the car without a warrant."). The fact that a vehicle is impounded at the time that probable cause develops does not inhibit an officer's right to conduct the warrantless search. See Florida v. Meyers, 466 U.S. 380, 382, 104 S.Ct. 1852, 1853, 80 L.Ed.2d 381 (1984); Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080-81, 73 L.Ed.2d 750 (1982) (noting that "the justification to conduct . . . a warrantless search does not vanish once the car has been immobilized"); see also Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981-82, 26 L.Ed.2d 419 (1970) (officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody). This is especially true when an officer and his dog have the right to be standing where they are at the time of the canine sniff. State v. Weaver, 349 S.W.3d 521, 527 n.32 (Tex.Crim.App. 2011) (explaining that United States Supreme Court holdings "are based on the legal theory that a canine sniff by a well-trained narcotics-detection dog is not [a] Fourth Amendment search because it reveals no information other than the location of a substance that no individual has a legitimate privacy interest in. They are all premised, however, upon a finding that the officer—and therefore the dog—have a right to be standing where they are at the time of the canine sniff").
In the present case, Kim alerted to the presence of narcotics in Appellant's vehicle after the car was towed to the police impound lot. Pasillas testified that when he arrived at the impound lot, he met with Corral who informed him of the dog's alert. Pasillas then located the magnetic key holder underneath Appellant's vehicle in the area that Corral had directed him to having observed Kim's alert. While Pasillas ultimately seized the complained-of evidence, we find that the collective knowledge of Pasillas and Corral—who both had the right to be standing at the police impound lot at the time of canine Kim's sniff—amounted to probable cause to perform a warrantless search of Appellant's vehicle. Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App. 1984, op. on reh'g) (holding "that when there has been some cooperation between law enforcement agencies or between members of the same agency, the sum of the information known to the cooperating agencies or officers at the time of an arrest or search by any of the officers involved is to be considered in determining whether there was sufficient probable cause") (emphasis added); Weaver, 349 S.W.3d at 527 n.32. We, therefore, find that the trial court did not abuse its discretion in declining to suppress the complained-of evidence. State v. Copeland, 501 S.W.3d 610, 612-13 (Tex.Crim.App. 2016) (when reviewing a trial court's ruling on a motion to suppress, appellate courts uphold the ruling under any theory of law applicable to the case).
Having determined that the officers had probable cause to search Appellant's vehicle, we need not address Appellant's contention that the affidavit used to obtain the warrant to search was defective.
Appellant's first issue is overruled.
B. Autopsy Photographs
In his second issue, Appellant complains of the admission of the post-accident, pre-autopsy photographs of the deceased victim contending that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice since their only purpose was to show the jury her death.
1. Standard of Review
The admissibility of a photograph is within the sound discretion of the trial judge. Young v. State, 283 S.W.3d 854, 875 (Tex.Crim.App. 2009). We will not disturb the trial court's decision unless it falls outside the zone of reasonable disagreement. Id. at 874. When determining whether the trial court erred in admitting relevant photographs into evidence, our review is limited to determining whether the probative value of the photographs is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Id.; TEX.R.EVID. 403. In determining whether the value of the photographs is substantially outweighed by the danger of unfair prejudice, a court may consider: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are close-up, and whether the body depicted is clothed or naked. Id. Generally, autopsy photographs are admissible unless they depict mutilation of the victim caused by the autopsy itself. Williams v. State, 301 S.W.3d 675, 690 (Tex.Crim.App. 2009).
We note that Appellant's argument surrounding the photographs revolves around Texas Rule of Evidence 403 and not relevancy under Texas Rule of Evidence 402. TEX.R.EVID. 402-403.
2. Autopsy Photographs
The State offered pre-autopsy photos of the deceased victim labeled State's Exhibits 57 through 63 during the testimony of Medical Examiner Dr. Mario Rascon. Appellant objected that their probative value was outweighed by their prejudice under Texas Rule of Evidence 403 and that they were only being offered to "inflame the jury." The State argued that their probative value was not outweighed as the photographs were necessary to show the extent of the deceased's injuries as a result of the collision. The trial court admitted Exhibits 57, 58, 60, and 61 over Appellant's objection, however, sustained the Appellant's objection to Exhibits 59, 62, and 63.
The exhibits at issue are displayed in the appellate record as 8 x 10 inches and in black-and-white. Exhibit 57 depicts a close-up image of the deceased's face. Dr. Rascon confirmed it was a photograph of the deceased victim, Crystal Saldaña. Exhibit 58 primarily depicts external injuries the deceased victim sustained to her legs. Dr. Rascon testified Exhibit 58 showed "some contusions; again, bruising on the lower extremities. And we see the right lower extremity appears shortened and externally rotated, which is a telltale sign for a broken femur which Ms. Saldaña had." Exhibit 60 depicts a laceration on the deceased victim's head. Dr. Rascon testified that Exhibit 60 was "a photograph of the back of the decedent's head . . . a portion of the ear and then the laceration below the number identifier; again, a tear of the scalp of the occipital scalp on the right side." Exhibit 61 depicts the deceased victim's liver. Dr. Rascon testified that Exhibit 61 showed "multiple intersecting linear lacerations; again, tears. Some deeper than others and they're pressing on each segment of the liver and in both of these lobes."
The State bore the burden to prove, beyond a reasonable doubt, that the cause of death occurred "by accident or mistake[.]" Dr. Rascon testified that the cause of death was multiple blunt-force injuries from an accident. He further explained that the autopsy ruled out the other choices available to him such as natural causes, homicide, and suicide. The exhibits at issue portray no more than the consequences of the injuries inflicted by the accident. See Narvaiz v. State, 840 S.W.2d 415, 429-30 (Tex.Crim.App. 1992). Based on our review of the record, we find no abuse of discretion in admitting the photographs as they either aided the jury in understanding the deceased's injuries, helped clarify the medical examiner's testimony to the jury, helped the jury determine whether the accident caused the deceased's death, or any combination thereof. See Matamoros v. State, 901 S.W.2d 470, 476 (Tex.Crim.App. 1995) (close-up photographs and photographs taken from different vantage points add to the jury's understanding of the condition of the crime scene); Harris v. State, 661 S.W.2d 106, 108 (Tex.Crim.App. 1983) (where photographs help jury to understand technical medical testimony describing injuries sustained by victim of crime, trial judge did not abuse its discretion in admitting these photographs); Williams v. State, 937 S.W.2d 479, 488 (Tex.Crim.App. 1996) (photographs are relevant to show the manner and means of death even if they merely corroborate other kinds of evidence).
Appellant, in major part, rests his challenge of the trial court's ruling on a decision of the Court of Criminal Appeals. In Erazo v. State, the court found the admission of an autopsy photograph of the victim's unborn child during the punishment phase of the defendant's trial was erroneous. Erazo v. State, 144 S.W.3d 487, 493-94 (Tex.Crim.App. 2004). The Court determined that the autopsy photograph was of an unborn child "whose death the defendant [was not] on trial [for]," rather, the defendant was on trial only for the death of the mother. Id. at 494. Discussing cases that permitted the admission of autopsy photographs over a Rule 403 objection, the Court stated, "[t]he photographs in the cases cited above were helpful to the juries in those cases because they showed" the victim. Id. The court went on to explain that the "photographs added something logical and relevant that made the photographs more probative than prejudicial." Id. In the present case, the State was permitted to introduce an autopsy photograph of the actual victim and injuries she sustained which is relevant here as noted by the Erazo court. See id.
We conclude that the trial court did not abuse its discretion in admitting the pre-autopsy photographs of the deceased victim and overrule Appellant's second issue.
C. Suppression of Prior Vehicle Stop
In a final issue, Appellant contends that during the punishment phase of the trial, the trial court erred in denying his motion to suppress evidence from a prior traffic stop conducted by Officer Cowie on January 31, 2013. Appellant argues that Officer Cowie lacked reasonable suspicion to initiate a lawful traffic stop, and thus, he violated Appellant's Fourth Amendment rights. He asserts that all evidence derived from the unlawful stop was tainted as "fruit of the poisonous tree" and must be suppressed.
Officer Cowie testified that on January 31, 2013, he observed an older Jeep Cherokee traveling at a high rate of speed while he was on patrol and driving in the opposite direction. He testified that although he was unable to determine the Jeep's exact speed with a radar gun, he began following the vehicle. Then, outside of the jury's presence, Officer Cowie testified that he noticed a "hairline crack" and white light from a distance on the Jeep's taillight, which he believed to be in violation of the Transportation Code. The trial court determined Officer Cowie's testimony to be credible, that there was probable cause to initiate a lawful traffic stop of Appellant, and the evidence related to the stop was properly admissible. During the stop, a small bag of cocaine fell out of Appellant's pant pocket and another fell out of his car while Appellant was retrieving his jacket. Cowie arrested Appellant for the offenses of driving while intoxicated and possession of cocaine.
A taillamp must emit a light when a headlamp or auxiliary driving lamp is lighted. TEX.TRANSP.CODE ANN. § 547.322(g) (West 2011). That light must be red. Id. § 547.322(d). Under the Transportation Code, a vehicle taillamp shall emit a red light plainly visible at a distance of 1,000 feet from the rear of the vehicle. Id. § 547.322(d). It is a misdemeanor offense for a person to operate a vehicle that is not equipped with taillamps that emit red light plainly visible at a distance of 1,000 feet from the rear of the vehicle. See id. §§ 547.004(a)(2) (West 2011), 547.322(d); Texas Dep't of Pub. Safety v. Hindman, 989 S.W.2d 28, 31 (Tex.App.--Fort Worth 1998, no pet.).
Regarding extraneous bad acts as evidence that a fact finder may consider during the punishment phase of a trial, the Code of Criminal Procedure provides, in part:
(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.TEX.CODE CRIM.PROC.ANN. art. 37.07, § 3(a)(1) (West Supp. 2016). Although Appellant complains that Officer Cowie lacked reasonable suspicion to initiate a lawful traffic stop, section 3(a)(1) of article 37.07 specifically authorizes consideration at punishment of a defendant's extraneous bad act "regardless of whether [the defendant] has previously been charged with or finally convicted of the crime or act." Id. Under this provision, the State "may offer evidence of any extraneous crime or bad act that is shown, beyond a reasonable doubt, either to have been (1) an act committed by the defendant or (2) an act for which he could be held criminally responsible." Haley v. State, 173 S.W.3d 510, 514 (Tex.Crim.App. 2005). "[T]he statutorily imposed burden of proof beyond a reasonable doubt does not require the offering party to necessarily prove that the act was a criminal act[,]" rather, "the statute [requires] the burden of proof to be applied to a defendant's involvement in the act itself . . . ." Id. at 515. "Whereas the guilt-innocence stage requires the jury to find the defendant guilty beyond a reasonable doubt of each element of the offense, the punishment phase requires the jury only find that these prior acts are attributable to the defendant beyond a reasonable doubt." Id. at 515. When a defendant elects a jury trial and appropriately objects, "the trial court has the responsibility to determine the threshold issue of whether an extraneous offense is relevant." Arzaga v. State, 86 S.W.3d 767, 781 (Tex.App.--El Paso 2002, no pet.) (emphasis added) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996)). "The trial court satisfies its responsibility by making an initial determination that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offenses." Id. at 781 (emphasis added) (citing Mann v. State, 13 S.W.3d 89, 94 (Tex.App.--Austin 2000), aff'd, 58 S.W.3d 132 (Tex.Crim.App. 2001)); see Mitchell, 931 S.W.2d at 953-54.
In the present case, Appellant does not raise a relevance issue; rather, his contention is with the officer's articulation of reasonable suspicion in support of the detention. Importantly, he does not argue that he was not involved or that he did not commit the acts testified to by Officer Cowie and depicted by the dashcam video. Indeed, the opposite is true: this evidence establishes Appellant was involved in and could have been criminally responsible for the narcotics found during the January stop. We thus overrule Appellant's last issue. See Kennedy v. State, 193 S.W.3d 645, 661 (Tex.App.--Fort Worth 2006, pet. ref'd) (en banc, op. on reh'g) (holding that uncorroborated testimony of accomplice on defendant's involvement in prior armed robbery, for which defendant was never indicted, was admissible at punishment as extraneous bad act evidence).
ITT. CONCLUSION
The trial court's judgment is affirmed.
GINA M. PALAFOX, Justice July 19, 2017 Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)