Lucky v. State

Full title: ERIC DESHON LUCKY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 6, 2003

No. 05-02-00108-CR (Tex. App. Jan. 6, 2003)

Opinion

No. 05-02-00108-CR.

Opinion Filed January 6, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-56321-IW. AFFIRMED.

Before Chief Justice THOMAS and Justices BRIDGES and BASS.¹

1 The Honorable Bill Bass, Retired Justice, Twelfth District Court of Appeals, Tyler, Texas, sitting by assignment.

OPINION

Opinion By Justice BASS

A jury found appellant guilty of the offense of the possession of cocaine weighing one gram or more but less than four grams. After appellant pleaded true to the enhancement count in the indictment, the trial court assessed his punishment at confinement for eight years and a $1000 fine. In one point of error, appellant challenges the trial court's admission, over his objection, of evidence of citations issued to the driver of the car where the offense occurred. We affirm the judgment. At 11:30 p.m. on August 29, 2001, Dallas police officers McDonnold and Mata observed a 1984 Oldsmobile Cutlass stopped in the street in front of a known drug house where they had previously made drug arrests. They observed appellant leave the front porch of the house and go to the car. The officers approached quickly, and Mata got out of the patrol car while it was still moving. Mata arrived at the driver's side window of the Oldsmobile in time to see appellant drop a clear plastic baggie containing a white rock substance into the lap of the passenger, Michael Lynch, who had a twenty dollar bill in his hand. Mata yelled to his partner, "It's in his hand." McDonnold grabbed appellant. McDonnold found a baggie of crack cocaine in Lynch's right hand and saw a twenty dollar bill on the passenger-side floorboard. Appellant and Lynch were charged with possession of cocaine; the driver, Larquetas Scott, was given two citations, one for no driver's license, and the other for "manifesting the sale or purchase of drugs." Lynch testified at trial that the cocaine was his, and that he had gotten it out of his pocket to hide between the car door and the passenger seat. He denied that appellant had dropped the cocaine in his lap or that there was a twenty dollar bill. Lynch acknowledged that he had previously been convicted of theft and evading arrest and that, in connection with this transaction, he had pleaded guilty to the possession of the same cocaine and received a five-year, probated sentence. The State impeached Lynch's testimony with his recorded statement in support of his guilty plea, wherein he told the court that appellant sold him the drugs for twenty dollars. At trial, the State was allowed to elicit testimony regarding the two citations issued to Larquetas Scott at the time of the offense, and to introduce copies of those citations in evidence. Appellant's counsel made the following objection:

We would object to the officer being allowed to testify about what happened to Scott in terms of the citations, as to admit this evidence would serve only to bolster this officer's testimony to the citation that was written at the time in question. We don't think it's relevant. We don't think it's material to this particular trial. We also think that to allow this testimony in before the jury would only be allowing in an extraneous offense. We would object to that. We would also object that the prejudicial value certainly would outweigh any probative value that it may have to the jury in terms of whether my client did or did not possess a controlled substance on August 29 of 2001.

The trial court overruled appellant's objection. In his point of error, appellant contends the trial court erred in overruling his objection, because the evidence was not relevant to any issue in the case. Even if the evidence was relevant as "background contextual evidence," appellant contends it constituted evidence of his character tending only to show that he acted in conformity therewith. Although the challenged evidence shows the misconduct of another, appellant argues that its admission is barred by Texas Rule of Evidence 404(b). See Tex. R. Evid. 404(b).

An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. . . ." Tex. R. Evid. 103. See also Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious affect on the determination of the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Appellant's point presents two questions. Is evidence of the driver's conduct relevant at all, and, if so, is it barred by rule 404(b) as character conformity or propensity evidence? Appellant contends that the evidence of the citations given Scott for no drivers license and manifesting an intent to buy or sell illegal drugs constitutes evidence of extraneous misconduct by a third party barred by rule 404(b) because it was introduced only to show that appellant was a bad character who associated with drug dealers and that he, therefore, possessed a propensity to commit the charged offense. Appellant contends that if the challenged evidence has any relevance, it is only as "background contextual evidence" helpful in providing the jury with the setting of the offense and giving the State's presentation "interest, color, and life-likeness." However, background contextual evidence is not one of the "other purposes" listed in rule 404(b) justifying the introduction of otherwise inadmissible character or propensity evidence. See Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App. 1991). Background evidence was formerly considered admissible as "res gestae" of the offense or, more recently, as background evidence admitted "[t]o show the context in which the criminal act occurred . . . under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of the act so that they may realistically evaluate the evidence." Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App. 1972). In Mayes, the court of criminal appeals recognized that the former terminology confused the distinction between other offenses inextricably connected with proof of the charged offense and other offenses that were merely part of the background of the primary offense. Mayes, 816 S.W.2d at 86. The court distinguished and defined the two types of contextual evidence. Same transaction contextual evidence is deemed admissible as an exception to the propensity rule where several crimes are intermixed or connected so that full proof of any one of them cannot be shown without proof of the others. Id. at 86, n. 4. The other type of background evidence, denominated background contextual evidence, includes those "facts that do not bear directly on the purely legal issues, but merely fill in the background of the narrative and give it interest, color, and lifelikeness. Id. at 87. Other acts of misconduct by the defendant not necessary to the proof of the primary offense constitute background contextual evidence and are not exempt under rule 404(b) from the general prohibition of the admission of character or propensity evidence against the accused set out in rule 404(a). Id. at 87-88. We discern no relevance in the evidence of Scott's citation for not having a drivers license because it does not tend to prove any fact of consequence to the determination of appellant's guilt. But we find no harm from its admission because, under the facts of this case, the evidence could not possibly have had a substantial and injurious effect on the determination of the verdict. Therefore no substantial right of the appellant was affected. Tex. R. App. P. 44.2(b). The State insists that the evidence of Scott's citation for manifesting an intent to buy or sell drugs is relevant same transaction background evidence, because the offenses were both part of the same transaction or were so closely interwoven that proof of all the facts was proper. See Mitchell v. State, 650 S.W.2d 801, 811 (Tex.Crim.App. 1983). This ignores, however, the strict requirements for the admission of such evidence mandated by Mayes. "Only if the facts and circumstances of the charged offense would make little or no sense without the introduction of the same transaction contextual evidence, should the same transaction contextual evidence be admitted." Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993), citing Mayes, 816 S.W.2d at 86. It is readily apparent that full proof of the cocaine possession charge against appellant would not require the introduction of evidence of either of the citations given Scott at the scene. Scott's act in "loitering" in his car before a known drug house until appellant handed cocaine to his passenger speaks for itself. What relevance the citation possesses can only be considered, at the most, as background contextual evidence. Background contextual evidence is not one of the numerated or unenumerated grounds for the introduction of other offenses properly considered "propensity" or character evidence under rule 404(b). The State counters that evidence of the driver's conduct need not fit under one of the numerated or unenumerated exceptions to rule 404(b)'s general ban on evidence of other misconduct "to prove the character of a person in order to show action in conformity therewith," because, the State argues, the rule refers only to the acts of the accused and not to those of third parties. The State contends that the plain language of the rule and the greater weight of both federal and state authority on the question supports the position that rule 404(b) applies only to other crimes, wrongs, or acts of the accused. See, e.g., Mitchell, 650 S.W.2d at 811; Williams v. State, 974 S.W.2d 324, 332 (Tex.App.-San Antonio 1998, pet. ref'd); Salazar v. State, 805 S.W.2d 538, 540-41 (Tex.App.-Ft. Worth 1991, pet. ref'd). The reviewing court in both Williams and Salazar concluded that proof of offenses committed by third parties proved nothing about the defendant's character and, therefore, could not prejudice him. Williams, 974 S.W.2d at 332; Salazar, 805 S.W.2d at 541. The State urges the same argument in this case. Although the State's arguments find support in the holding of several of the courts of appeal, the Court of Criminal Appeals in Castaldo v. State recently held that rule 404(b) does apply to other acts of third parties as well as those of the accused. Castaldo v. State, 78 S.W.3d 345, 349 (Tex.Crim.App. 2002). The court rejected the identical arguments raised by the State in this case. Id. at 348-49. Castaldo was a possession of marijuana case. Castaldo was a passenger in a vehicle stopped after a prolonged police pursuit A search of the car disclosed a tupperware container in the center console containing 0.94 grams of marijuana and a small wooden box located on the passenger side floorboard containing 0.01 grams of marijuana. According to the arresting officers, both the driver and Castaldo appeared intoxicated. The driver was charged with driving while intoxicated and possession of marijuana. Castaldo was charged with possession of marijuana. A substantial amount of the State's evidence, admitted over Castaldo's objections, dealt with the driver's intoxication and efforts to escape the police by driving north in the southbound lane of Interstate Highway 45, forcing oncoming trucks to swerve to avoid a collision. The driver testified that the marijuana was his, that Castaldo did not know it was in the car, and that Castaldo had slept through the entire police pursuit. The Waco Court of Appeals reversed Castaldo's conviction holding that rule 404(b) applies to the conduct of persons other than the accused and that evidence of the driver's conduct therefore constituted evidence of an inadmissible extraneous offense. Castaldo v. State, 32 S.W.3d 413, 420-424 (Tex.App.-Waco 2000), rev'd 78 S.W.3d 345 (Tex.Crim.App. 2002). On appeal to the court of criminal appeals, the State contended the plain language of the rule refers only to the singular "A person" and to "the accused," and that one person's acts cannot show another person's character. Rejecting both arguments, the court of criminal appeals agreed with the Waco Court of Appeals that rule 404(b) applies to exclude acts of persons other than the defendant that tend to show the defendant's propensity to commit the charged offenses. The court concluded that evidence of the driver's conduct was admissible on the issue of knowledge, one of the myriad exceptions to the rule's general exclusion of such evidence. The court reasoned, as follows:

The defense of lack of knowledge turned on the appellant's testimony that he went to sleep the moment he got in the vehicle and remained asleep until the officer rousted him from it. He testified that neither the reckless driving nor the siren, lights (including bright, white lights that shone into the vehicle) and loudspeaker woke him up. These facts were relevant, first, to the credibility of his story that he was continuously and soundly asleep during the time the marijuana was used. Second, they were relevant to the issue of the reason why a person could sleep so soundly if he had not been smoking marijuana.

Castaldo, 78 S.W.3d at 351. Recognizing that "the Rule 403 balancing test . . . is an inherent part of Rule 404(b)," the court concluded that the slight prejudice that might accrue from evidence of voluntarily riding with an intoxicated driver could not greatly outweigh the probative value of evidence of bad driving to the issue of knowledge and use of marijuana. Id. at 350-51. Although the court of criminal appeals agreed with Castaldo's interpretation of rule 404(b), it reversed the court of appeal's judgment that set aside his conviction and remanded the case for consideration of Castaldo's remaining points of error. Id. at 352. Despite the unsatisfactory result for the defendant, Castaldo establishes (1) that acts of third parties may reflect on the character of the appellant, and (2) if they do, they are to be excluded under rule 404(b) in the absence of any applicable exception. Id. at 350-51. As we have already stated, the evidence of the citation for not having a driver's license had no relevance, and the court erred in admitting it. Evidence of the citation for loitering while manifesting an intent to buy or sell drugs had no relevance except as background evidence. It contributed nothing to the proof of the charged offense, and it was not necessary to the jury's understanding of the case. Although in the instant case, the connection between appellant and the driver was much more tenuous than that between the driver and the defendant in Castaldo, evidence that appellant approached a car driven by one later accused of manifesting an intent to buy or sell drugs tends to reflect adversely on appellant's character. Such evidence is barred under rule 404(b) unless it falls under one of the exceptions to the rule. In our view, evidence of Larquetas Scott's citations fits none of the exceptions, and the trial court erred in admitting it. Nevertheless, we believe the error was harmless. "Any error, defect, irregularity or variance that does not affect a substantial right must be disregarded" Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's determination of the verdict. King, 953 S.W.2d at 271. Officer Mata saw appellant drop a white rock substance into Lynch's lap while Lynch held a twenty dollar bill. Seconds later, Officer McDonnold found the cocaine in Lynch's hand, and a twenty dollar bill on the floorboard of Scott's car. Appellant called Lynch to testify. Lynch told the jury that the cocaine had been in his possession the whole time, and that appellant had not dropped it in his lap. The State impeached Lynch's testimony with his recorded statement in support of his guilty plea to the charge of possession the cocaine in question wherein he stated that appellant had sold him the drugs for twenty dollars. Given the overwhelming evidence of appellant's guilt, such minimal prejudice as might arise from evidence of Scott's citations did not have a substantial or injurious effect on the jury's deliberations or its verdict. Tex. R. App. P. 44.2(b). Appellant's point is overruled. The judgment is affirmed.