Opinion
NO. 01-15-00958-CR
02-16-2017
CLARENCE RAY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas
Trial Court Case No. 1453162
MEMORANDUM OPINION
A jury found appellant, Clarence Ray Johnson, guilty of the offense of possession of a controlled substance, namely, methamphetamine, weighing at least four grams but less than 200 grams. After finding true the allegation in an enhancement paragraph that appellant had previously been convicted of a felony offense, the trial court assessed his punishment at confinement for seven years. In his sole issue, appellant contends that the trial court erred in admitting extraneous-offense evidence.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(d) (Vernon 2010).
We affirm.
Background
Harris County Precinct 8 Constable's Office ("HCCO") Deputy J. Wingfield testified that while on patrol on the night of December 31, 2014, he saw appellant driving a truck at the intersection of Durant Avenue and Spencer Highway in Pasadena. After appellant failed to signal his turn onto Spencer Highway, Wingfield began following behind him. Wingfield then saw appellant fail to properly signal before making a lane change. Wingfield activated the overhead lights on his patrol car and initiated a traffic stop.
When Deputy Wingfield approached the driver's side of the truck and spoke with appellant, he noted that appellant seemed nervous. Appellant's hands were shaking and "a vein in the side of his neck" was "pulsating." Appellant's passenger, Jennifer Hurd, was "a little bit more nervous" than appellant. She was "shaking and kind of all over the place," and based on his training and experience, Wingfield associated her behavior with "drug use." He noted that the inside of the truck was cluttered with clothing and "assorted miscellaneous items." And after he saw, sitting in plain view, several soda straws that had been cut into short pieces, which "are commonly used to snort cocaine," Wingfield asked appellant and Hurd to step out of the truck.
Deputy Wingfield further testified that after obtaining appellant's consent, he searched the truck. He found spoons with burn marks on them, needles, empty baggies, a digital scale, and, in the center console between the driver's and passenger's seats, a gray bag. Inside of the gray bag was an orange pill bottle bearing a label with appellant's name and containing three little plastic baggies, one of which had a picture of "red dice" printed on it. The baggies contained 6.4 grams of methamphetamine. Wingfield noted that the orange pill bottle was "the only pill bottle" that he found.
HCCO Deputy A. Fogle testified that while on patrol on December 31, 2014, she saw Deputy Wingfield conducting a traffic stop and stopped to assist. While Wingfield was speaking with appellant, Fogle went to the passenger side of appellant's truck and began speaking with Hurd. Fogle noted that Hurd appeared to be "very nervous" and was "kind of messing with her hands and fiddling a lot." Hurd's speech was "very rapid," and she was "kind of look[ing] around" and avoiding eye contact with Fogle. Fogle explained that Hurd's behavior indicated that she may have been under the influence of narcotics. When Fogle asked Hurd why she was so nervous, Hurd replied that she did not want to speak in front of appellant. After Hurd exited the truck, she handed Fogle a black eyeglasses case. Inside the case was a spoon with black burn marks, several syringes and needles, and a small bag containing a "very tiny crystal-like substance."
Deputy Fogle further testified that Deputy Wingfield had found in the passenger's side of the truck, near the center console, a pink makeup bag containing several pills, which Fogle sorted through and identified. Fogle noted that in the gray bag that Wingfield had found "shoved down" in the right side of the driver's seat, near the center console, was an orange pill bottle bearing a label. However, she could not recall what was printed on the label. Inside the orange pill bottle, Fogle saw a small bag, with "red on it," containing a "crystal-like substance." She noted that no other pill bottles were recovered from inside the truck.
The trial court admitted into evidence a dash-camera videotape recording from Deputy Wingfield's patrol car. The videotape shows Hurd giving Deputy Fogle the eyeglasses case; Wingfield and Fogle searching the truck; Wingfield removing a gray bag from the truck; and Wingfield removing an orange pill bottle from the gray bag. Visible in the videotape is the fact that the pill bottle has a label affixed.
Dr. Warren Samms, a director of toxicology and chemistry at the Harris County Institute of Forensic Science ("IFS"), testified that the white crystals in the "small ziplock bag with red dice design" tested positive for methamphetamine. Scott Vajdos, a former forensic chemist at IFS, testified that the "small ziplock bag" with a "red dice design" contained white crystals weighing 5.097 grams.
Hurd testified that on December 31, 2014, while she was staying with a friend in Pasadena, she asked appellant, whom she had known for a few months, for a ride to visit another friend at a hotel near Hobby airport. Appellant arrived to pick her up at "close to midnight" in a truck that belonged to a mutual acquaintance who was a known drug user. Although Hurd had previously been in the truck five or six times, she had never before been in the truck with appellant. Hurd explained that she had been using heroin that night and was carrying heroin and needles inside a sunglasses case in her purse. However, she did not have any methamphetamine; the orange pill bottle found in the truck did not belong to her; and she had not been in possession of any pill bottles belonging to appellant.
During its direct examination of Hurd, the State asked, "Do you and [appellant] commonly get together and use illegal drugs, specifically methamphetamines?" Appellant objected, and the following discussion took place outside the presence of the jury:
THE COURT: So, State is asking questions about the previous nature of the relationship between . . . [appellant]
and Ms. Hurd and we're dealing with this outside the presence of jury. The anticipated response is that, at least down the road, is that they used to hang out and do drugs together. Obviously the defense will object and the State's response to that objection is? . . .
[State]: Judge, the State's response is that I believe this is relevant evidence for the jury to consider. I anticipate that the defense is going to be that the drugs did not belong to [appellant], that they belonged, at least partially, if not entirely, to Ms. Hurd. But Judge, I think it becomes relevant that the jury understand that it was common practice for the two of them to use narcotics together. This will also go toward the State's theory that this was, at the very least, joint possession of the narcotics that were found within the vehicle.
. . . .
[Appellant]: Our response is that it is character evidence. The State's sole purpose for entering this into evidence is to prove, by character, past character, that the defendant had used drugs before and is using drugs now. That is impermissible, and that's what we are objecting to. There has not been an implication, basically, as to whose drugs were in the car except another person was in the car. There's been no attack or no theory that there was some type of conspiracy or conscious effort to plant drugs by this defendant or anybody else. The defendant's in somebody else's car and this defendant admittedly had drugs in the car. That's all that's been suggested so far by the evidence, not necessarily by the defense.
THE COURT: I'm going to allow the State to ask that line of questioning, but it needs to be very short and very tight and without a lot of unnecessary explanation. [Counsel for appellant], that being the Court's
ruling, . . . there will be an instruction [to] the jury . . . .
After the jury returned to the courtroom, the State re-asked its question:
Ms. Hurd, I'm going to go back and ask you a question I started asking you before the jury was excused. It's going to be a little more exact though. Do you and [appellant] commonly get together and use illegal drugs, specifically methamphetamines?The trial court overruled appellant's objection and then instructed the jury as follows:
You are instructed that if there is any evidence before you in this case regarding the defendant's committing an alleged offense other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense, if any, and even then, you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.Hurd then answered the State's question, "Yes, sir."
Standard of Review
We review a trial court's decision regarding the admissibility of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any guiding rules or principles, and only if its 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, 380 (Tex. Crim. App. 1990). A trial court does not abuse its discretion if there is evidence supporting its decision. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). We uphold a trial court's evidentiary ruling if it is 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).
Extraneous-Offense Evidence
In his sole issue, appellant argues that the trial court erred in allowing Hurd's testimony about his prior use of methamphetamines because her testimony constituted inadmissible character evidence. See TEX. R. EVID. 404(a). Appellant further argues that the evidence was harmful because "[a]bsent this evidence, it appears that the jury would have given weight to the defense that the truck [he] was driving was so cluttered with illegal substances that it is reasonable to believe that [he] was not in possession of a controlled substance." The State argues that the trial court did not err in admitting Hurd's testimony about appellant's prior use of methamphetamines because the testimony established appellant's intentional and knowing possession of the methamphetamine found in the truck he was driving.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. Evidence of a defendant's character is generally not admissible to prove that he acted in conformity with that character on a particular occasion. See TEX. R. EVID. 404(a); Mayes v. State, 816 S.W.2d 79, 86 (Tex. Crim. App. 1991) (rule 404(a) "ensures that a person is tried for the offense he has allegedly committed, and not for the type of person that he is"). Also, evidence of a defendant's extraneous offenses or prior wrongful acts is generally not admissible as evidence that a defendant acted in conformity with his character by committing the charged offense. See TEX. R. EVID. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004); Montgomery, 810 S.W.2d at 390.
However, evidence of extraneous offenses or wrongful acts may be admissible if it has relevance apart from its tendency "to prove the character of a person in order to show action in conformity therewith." TEX. R. EVID. 404(b). These permissible purposes include proof of intent, preparation, plan, knowledge, identity, or absence of mistake or accident, if it is material to a contested issue in the case. See id.; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Wingfield v. State, 197 S.W.3d 922, 925 (Tex. App.—Dallas 2006, no pet.).
Further, evidence of extraneous offenses or prior acts is admissible to rebut a defensive theory. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Powell v. State, 63 S.W.3d 435, 439-40 (Tex. Crim. App. 2001). A defensive theory may be raised in a defendant's opening statement. See Powell, 63 S.W.3d at 439; Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.] 2008, no pet.). When, as here, the defense chooses to make its opening statement immediately after the State's opening statement, the State may reasonably rely on this defensive opening statement as to what evidence the defense intends to present and rebut this anticipated defensive evidence during its case-in-chief, as opposed to waiting until rebuttal. See Bass v. State, 270 S.W.3d 557, 564 n.7 (Tex. Crim. App. 2008).
A person commits the offense of possession of a controlled substance if he "knowingly or intentionally possesses" a controlled substance, including methamphetamine. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (Vernon 2010); see also id. § 481.002(5) (Vernon Supp. 2016), § 481.102(6) (Vernon 2010). To prove that appellant possessed methamphetamine, the State was required to show that he (1) exercised control, management, or care over methamphetamine and (2) knew that the matter was methamphetamine. See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon Supp. 2016) ("'Possession' means 'actual care, custody, control or management.'"); TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon 2011) (defining intentionally and knowingly).
Here, appellant's defense at trial was that the methamphetamine found in the truck that he was driving was not his and instead belonged either to the owner of the truck or to Hurd. Thus, appellant's knowledge and possession were at issue in the case. "While the general rule is that extraneous offenses are inadmissible as evidence of guilt, there are certain exceptions to the general rule, such as the exception that admits evidence of extraneous offenses to show knowledge." Arnott v. State, 498 S.W.2d 166, 176 (Tex. Crim. App. 1973) (evidence of defendant's past heroin possession admissible to show knowing possession of heroin in instant case). "Evidence that the accused has, in the past, [possessed] the narcotic of which he is now alleged to have possession is of probative value in establishing knowledge." Id. (internal citations omitted); see, e.g., Stewart v. State, No. 10-14-00183-CR, 2015 WL 3823273, at *3 (Tex. App.—Waco June 18, 2015, pet. ref'd) (mem. op., not designated for publication); Hestand. v. State, No. 05-06-013205-CR, 2007 WL 4239200, at *6 (Tex. App.—Dallas Dec. 4, 2007, pet. struck) (not designated for publication) (evidence of defendant's prior use of methamphetamine admissible to show knowing or intentional possession of methamphetamine in instant case); Wingfield, 197 S.W.3d at 925 (evidence of prior narcotics use admissible to show defendant's knowing or intentional possession of marijuana).
Hurd's testimony that appellant had at other times used methamphetamine constituted circumstantial evidence that he knowingly possessed the methamphetamine found in the pill bottle bearing his name in the truck he was driving; it was admissible to rebut his defensive theory that he did not knowingly possess the methamphetamine and it belonged to the owner of the truck or to Hurd. See, e.g., Rios v. State, No. 08-12-00089-CR, 2014 WL 2466100, at *6 (Tex. App.—El Paso May 30, 2014, no pet.) (not designated for publication) (evidence of prior narcotics use admissible to rebut defensive theory defendant had no knowledge of existence of cocaine in his pocket because it was planted on him); Wingfield, 197 S.W.3d at 925 (evidence of prior narcotics use admissible to rebut theory defendant did not knowingly possess marijuana found in her bedroom, as others had access to apartment).
We conclude that the trial court could have reasonably concluded that the complained-of portion of Hurd's testimony had relevance beyond character-conformity purposes. See Williams, 301 S.W.3d at 687. Accordingly, we hold that the trial court did not err in admitting Hurd's testimony.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).