Opinion
NO. 01-15-00481-CR
04-13-2017
ELIJAH REED, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court Harris County, Texas
Trial Court Case No. 1464705
MEMORANDUM OPINION
Appellant Elijah Reed was charged with theft of five loads of metal subsequently sold at a scrap yard in Houston. A jury convicted him of theft of property with a value greater than $200,000, pursuant to a scheme or continuing course of conduct. See TEX. PENAL CODE §§ 31.03, 31.09. The jury assessed punishment at 35 years in prison.
On appeal, Reed challenges the admission of evidence pertaining to five other contemporaneous transactions at the scrap yard, which he contends were not proved to be thefts. He also argues that trial court erred by failing to instruct the jury to disregard that evidence. Finally, he argues that the trial court erred by allowing testimony from one witness regarding the credibility of another witness.
We affirm.
Background
In November 2013, Abdul Ghaffar, the manager of Super Global Scrap Metal in Houston, Texas, was approached by appellant Elijah Reed, who introduced himself as "Mike Goudeau." During their first encounter, Reed said that he had scrap metal and asked whether Ghaffar would buy it. Ghaffar confirmed that Super Global bought scrap, and they exchanged phone numbers. Later that month, accompanied by a driver, Reed brought a load of aluminum shafts to the scrap yard. Ghaffar did not buy the aluminum, but he did keep records regarding this interaction, including photographs of the shafts.
In early December, Reed again returned to the scrap yard with a load of metal. This time he was accompanied by his driver, later identified as Walter Barconey, and a woman he introduced as Bianca Goudeau. This time, Ghaffar purchased the load. Reed instructed Ghaffar to make the check to Bianca and to take her fingerprints and other identifying information. Despite the fact that he took Bianca's information, Ghaffar understood that he was buying the load of metal from Reed. In addition to receiving Bianca's information, Ghaffar took photographs of the truck, the load, Reed, and Bianca.
Over the course of December and January, Reed sold several more loads of metal to Ghaffar. Reed consistently stated that the loads were his, and he would call Ghaffar immediately prior to the arrival of each load at the scrap yard. Unlike the first two occasions, however, Reed did not go to the scrap yard each time he sold a load. Instead, Reed would call Ghaffar minutes before one of his loads would arrive, and they would negotiate the price. Only Barconey and Bianca would accompany the loads to the scrap yard. When they arrived, Ghaffar would take pictures of the load, truck, and trailer, and he would make the checks to Bianca.
In late January, a stolen trailer equipped with a GPS tracking device delivered a load at the scrap yard for Reed. Police arrived as the load was being weighed. The police informed Ghaffar that the load was stolen, and they arrested Barconey.
Ghaffar cooperated with the police and turned over all of his records associated with Reed, Bianca, and Barconey. After reviewing Ghaffar's records, the police discovered that the loads Reed sold or attempted to sell coincided with a string of truck and tractor-trailer thefts that occurred in east Texas and Louisiana from November 2013 to January 2014. Based on the photograph of the man known to Ghaffar as "Mike Goudeau," the phone number he provided, and the description of his vehicle, the police identified him as the appellant, Elijah Reed. Police arrested Reed, who was holding a phone at the time of arrest. The police called the number "Mike Goudeau" had provided to Ghaffar, and Reed's phone began to ring and displayed the number of the phone used to make the call.
A grand jury indicted Reed for aggregated theft of property with a value greater than $200,000 in connection with five thefts that occurred between November and January. At trial, the State called five witnesses who testified that they owned loads that Ghaffar purchased from Reed without their consent. The witnesses identified their loads from the pictures taken by Ghaffar when documenting his purchases from Reed. All five witnesses testified to estimates of the value of the property that Reed was alleged to have stolen from them.
Additionally, Houston Police Officer T. Janke testified about his investigation into the thefts. He discussed his interaction with Ghaffar and the reasons he came to believe that Reed was not only involved in the thefts but was "running the show." At one point, the State asked Officer Janke why he had believed Ghaffar's story, and he explained why. Reed objected to this testimony, and the trial court overruled his objection.
A jury convicted Reed of aggregated theft and sentenced him to 35 years in prison. Reed appealed.
Analysis
On appeal, Reed contends that the trial court erred by admitting evidence of extraneous theft offenses and testimony from Officer Janke regarding Ghaffar's credibility. He also challenges the jury charge because the trial court refused to instruct the jury to disregard the State's evidence of extraneous thefts.
A trial court's decision to admit or exclude evidence is reviewed under an abuse-of-discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006); Smith v. State, 340 S.W.3d 41, 53 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Smith, 340 S.W.3d at 53-54. A trial court's evidentiary ruling will not be reversed unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).
I. Extraneous-offense evidence
In his first two issues, Reed argues that the trial court erred by refusing to strike evidence of five uncharged transactions, which he characterizes as extrinsic theft offenses, and by failing to include a jury-charge instruction to disregard that evidence. The indictment alleged that Reed committed five thefts, but the State introduced evidence of five additional transactions between him and Ghaffar over the same three-month period. Reed argues that the evidence should have been struck because the State did not present legally sufficient evidence to prove beyond a reasonable doubt that extraneous theft offenses had occurred.
"Extraneous acts are generally inadmissible at the guilt/innocence stage of a trial." Ex parte Varelas, 45 S.W.3d 627, 630 (Tex. Crim. App. 2001). Although Rule 404(b) prohibits the use of evidence "of other crimes, wrongs or acts . . . to prove the character of a person in order to show action in conformity therewith," it nevertheless permits such evidence "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id.; see TEX. R. EVID. 404(b).
The State presented evidence that Reed made a practice of calling Ghaffar immediately prior to Barconey's arrival at the scrap yard with the loads of metal that were alleged to have been stolen. On cross-examination, defense counsel suggested that Ghaffar may not have been speaking to Reed and that there was no way he could be sure that it was him on the phone prior to the arrival of the stolen loads. As a result of this questioning, on redirect the State offered business records and photographs of five additional transactions between Ghaffar and Reed. Ghaffar testified that these additional transactions occurred in the same manner as the transactions related to the thefts alleged in the indictment. According to Ghaffar, Reed would call prior to his loads being delivered, and then Barconey and Bianca would arrive with the loads.
Reed objected to the admission of evidence of these additional transactions, pursuant to Rule 404. The trial court specifically found that the defense had placed Reed's identity into question "based on the cross-examination" of Ghaffar concerning "whether or not the defendant did or did not know or what he did or did not direct as a party." As such, the court admitted the evidence for the purpose of establishing, among other things, Reed's identity.
Evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action." See TEX. R. EVID. 401. In this case, the more interaction that Ghaffar had with the person calling him in advance of the deliveries accompanied by Barconey and Bianca, the more probable it was that he could identify the caller on each occasion. Ghaffar's ability to identify Reed as the person who called him was important because his testimony regarding those interactions connected him to the stolen loads. Thus, the evidence of the additional transactions was relevant to prove Reed's identity as the person who called Ghaffar immediately prior to the loads arriving. See TEX. R. EVID. 401.
On appeal, Reed argues that the State did not prove beyond a reasonable doubt that he had committed theft when he engaged in these additional transactions with Ghaffar. But the State did not need to prove that the other transactions involved thefts for the purpose that the evidence was being offered. The State offered evidence of the additional interactions for the purpose of proving Reed's identity.
Reed argues that the State suggested at trial that he had committed theft when he engaged in these additional transactions. He relies on the examination of Officer Janke, in which the State questioned him regarding the various dates of the thefts. Officer Janke responded by listing over 11 dates, some of which included the dates of the additional transactions, and by going on to say that vehicles had been stolen on those dates. Reed did not object to this testimony. Moreover, Officer Janke never stated that Reed had committed thefts when he engaged in the additional transactions.
Because the State properly offered the evidence of the additional interactions as evidence to establish Reed's identity, and not for an impermissible purpose of suggesting other extrinsic thefts committed by Reed, the evidence did not implicate Rule 404(b). The trial court accordingly did not abuse its discretion by admitting the evidence. See Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016); see also Dixon v. State, 828 S.W.2d 42, 48 (Tex. App.—Tyler 1991, pet. ref'd). For the same reason, the trial court did not err by refusing to include in the jury charge an instruction that the evidence of additional transactions be disregarded. We therefore overrule issues one and two.
II. Testimony commenting on the credibility of another witness
In his third issue, Reed contends that the trial court erred by admitting testimony from Officer Janke concerning the truthfulness and credibility of another of the State's witnesses, Ghaffar.
It is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness and such opinion is therefore inadmissible evidence. See Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). This type of testimony is inadmissible "because it does more than 'assist the trier of fact to understand the evidence or to determine a fact in issue;' it decides an issue for the jury." See id. (citing Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993)). This rule applies to both expert and lay witness testimony. Id. However, a witness is permitted to testify in the form of an opinion when it is "rationally based on the witness's perception" and is "helpful to clearly understanding the witness's testimony or to determining a fact in issue." TEX. R. EVID. 701. Thus, if the opinion is an "interpretation of the witness's objective perception of events," it is admissible. See Fairow v. State, 943 S.W.2d 895, 898-99 (Tex. Crim. App. 1997). Such an opinion is not inadmissible because it "indirectly bolsters" the credibility of another witness. See Schutz v. State, 957 S.W.2d 52, 69 (Tex. Crim. App. 1997).
Officer Janke testified regarding his investigation of the thefts at issue in this case, including his interaction with Ghaffar and the evidence he gathered. He testified that he came to believe that Reed "was running the show" with respect to the thefts. Then, in response to a question about why he would have believed Ghaffar, who was then a scrap-yard manager under investigation, Officer Janke testified:
Because the records and everything that he had taken were so meticulous and the photos, the documents . . . the amount of photos that were taken, it led us to believe—and I still believe that he was purchasing not knowing that they were stolen, and he was running a legitimate business. And he had opened everything up, never closed the door to us, never stopped giving us what we needed, continually called, hey, is there anything else I can do, and would call and say, hey, if these are bad guys, are y'all going to protect me? He was worried about his safety. . . .This testimony was Officer Janke's explanation and opinion as to why his investigation led him to believe that Reed was running the show.
Although this testimony may have indirectly bolstered the credibility of Ghaffar, it was not a direct opinion on the truthfulness of his testimony. See Schutz, 957 S.W.2d at 69; Blackwell, 193 S.W.3d at 21. Officer Janke's explanatory opinion was offered to explain the course of his investigation and how he came to believe that Reed was running the theft operation. Because Officer Janke's opinion testimony was an explanation of his investigation based upon his objective perception of events and not a direct opinion on the truthfulness of Ghaffar, it was admissible and the trial court did not abuse its discretion in admitting it. See TEX. R. EVID. 701; see also Fairow, 943 S.W.2d at 898-99. Therefore, the trial court did not err by allowing Officer Janke's testimony. We overrule issue three.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice Panel consists of Justices Massengale, Brown, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).