Caballero, Rocky v. State

• Court: Court of Appeals of Texas
• Decided: December 5, 2012
• Docket: 05-11-00367-CR
• Status: Published

Opinion

AFFIRM; Opinion issued December 5, 2011

In The Q.niirt uf ;pprt1 *iit1! 3ii1rirt i,if rxu at Ja11ai No. 05-I 1-00367-CR

ROCKY CABALLERO, Appellant

V.

‘THE Si’v[F: OF TExAs, Appellee

On Appeal from the Criminal l)istrict Court No. 7 Dallas County, Texas Trial Court Cause No. F10—24S1 I—V

OPINION Before Justices Bridges, Richter, and Lang Opinion By Justice Richter

A jury found appellant guilty of possession of a controlled substance with intent to

deliver. The indictment also contained two enhancement paragraphs alleging prior

convictions for possession of a controlled substance with intent to deliver and unlawful

possession of a firearm by a felon, to which appellant pled true. The jury found the

enhancement paragraphs to be true, and sentenced appellant to seventy years’ imprisonment.

On appeal, appellant asserts the trial court erred: (I) in denying his motion to suppress, (2)

in denying a jury instruction on the voluntariness of his statement, (3) in admitting a

prejudicial letter into evidence, and (4) in finding the State did not commit Batson error. Finding no reversible error, we affirm the trial court’s judgment

I. BACKm0uND

Garland police officer Craig Dockter testified he had been assigned to respond to a

Crime Stoppers tip regarding a certain apartment and tile possibility of drug sales there.

According to the tip, the residents of the apartment had only lived there a few weeks, and

there had been a lot of car and foot traffic where men would come out, approach a car, and

then the car would depart a few moments later. As a result, Dockter conducted a knock and

announce at the apartment on June 22, 2010. Dockter and his partner.. Officer Mendoza,

knocked on the door around 3 p.m. Dockter did not hear anything going on inside the

apartment when they knocked on the door. After a short pause, the officers knocked again,

and Dockter heard the sound of the dead bolt as if the door was being locked. The officers

knocked a third time, and after a few seconds, the door was opened by a female named

Yesenia Dominguez.

Dockter asked for Dominguez’s identification. She said that it was upstairs, so

Dockter asked if the officers could step inside because it was hot outside. Dominguez

replied affirmatively and invited him into the apartment.

As soon as the officers stepped inside, they could smell burnt marijuana. Mendoza

observed several men in the kitchen, so he walked to the kitchen to talk to them. Dockter

followed slowly behind with Dominguez because he did not want her to go upstairs while

the officers were dealing with the men in the kitchen. The men told Mendoza that they had

smoked all of the marijuana. Dockter testified that based on his training and experience,

—2— when someone says that the drugs have all been consumed, it is usually not true and is an

attempt to get the officers to leave.

At that point, Dockter heard “a lot of movement upstairs.” Dockter described what

he heard as, ‘Scveral different areas offootsteps.” lie decided that they were going to secure

the residence for officer safety and obtain a search warrant Dominguez told Dockter that

there was only one person upstairs, a girlfriend of hers who was getting out of the shower

and probably going into the bedroom. Dockter determined that he needed to go upstairs to

see if there were more people.

Dockter testified that when he went upstairs. he had his weapon drawn for officer

safety because he was “dealing with an unknown and enormous amount of people for the

relatively small apartment” and did not have any history or background of anyone there. At

the top of the landing, Dockter saw a closed door on the left and grabbed the doorknob; it

was locked. Dockter knocked on the door and called out to the person. After a few seconds.

the door was unlocked, and Dockter was surprised to see appellant poke his head out the

door instead of a female. Appellant stood in the doorway and did not open the door

completely. Dockter saw three more people in the bedroom. Dockter asked them all to come

out and walk downstairs with him.

In a sub rosa examination, Dockter testified that he asked appellant who he was.

Dockter thought that appellant only told him that his name was “Rocky.” Dockter stated that

he wasn’t in the process of writing anything down because he was just trying to buy some

time to figure out how to get everyone downstairs. When Dockter next asked appellant what

-3- hc was (ii)mg lhcru_ appellant stated that he ii vcd in the apartment and that it wiS his.

Appellant also said that he and Domingucz shared that bedroom, Other than that, Docktcr

made small talk with appeHant. Dockter was trying to remain calm and keep everyone else

calm.

After the olticers patted appellant and the others down, Mendoza held them

downstairs while Dockter went back upstairs to continue the protective sweep. Dockter said

that he wanted to he sure no one else was upstairs in the other two rooms and two

bathrooms. l)ockter Ilirther explained that because there had been SO much movement

upstairs, other people could have been hiding in bathrooms, showers, and behind closed

doors-, he also wanted to prevent an destruction of evidence.

On the counter lop in the bathroom connected to the bedroom where the people were

found, Dockter saw a small tin container, a couple of clear baggies, a towel, and a black

pouch in plain view, lie also tound in plain view a small baggie on a shelf in an adjacent

upstairs bedroom. The items were consistent with drug use. Dockter proceeded downstairs

to obtain a search walTant,

After obtaining the warrant, the officers went back upstairs to conduct a search.

Inside the tin container were two small bags similar to the bag found in plain view, which

later tested positive for methamphetamine. A glass meth pipe with residue and a digital scale

wet-c wrapped up in a towel. A spoon with white residue was found on the toilet. A cell

phone was also found in close proximity to the tin container. Dominguez told Dockter that

the phone was appellant’s. in the bedroom, the officers found letters, some mail, paraphernalia, and some empty

banuies Lln(lcr the bed. When I )ockter lifted up the mattress, he loun(l a black pouch

containing larger baggies of methamphctarnmc. The pouch was almost in the center of the

mattress, not tucked into a corner where it could be grabbed by hand. A small black safe

containing more haggics, a scale. a pipe. and some paperwork was found under the bed.

Prior to trial, appellant’s cotmsel tiled a motion to suppress all of the evidence seized

from the apartment and all statements made by appellant. In support of the motion, appellant

argued the police conducted an improper protective sweep of the residence and appellant’s

statements were the product of custodial interrogation. The trial court denied the motion and

made findings on the record.

Upon conclusion of the trial, the jury found appellant guilty of possession of a

control led substance with intent to deliver. The indictment also contained two enhancement

paragraphs alleging prior convictions for possession of a controlled substance with intent

to deliver and unlawful possession of a lirearm by a felon, to which appellant pled true. The

jury found the enhancement paragraphs to be true, and sentenced appellant to seventy years’

imprisonment. This appeal followed.

II. ANALYSIS

Motion to Suppress

In his second and third issues, appellant asserts the trial court erred in denying the

motion to suppress. Specifically, appellant contends the evidence was seized following an

illegal search of his apartment, and he was not given Miranda warnings prior to statements lie made during custodial interrogation. The State responds that the search of appellant’s

apartment was Ieuii I aiid ;tliram/u warnings were not required because appellant was not

subjected to custodial interrogation.

We beam with appellant’s contention that the evidence was sd ed pursuant to an

illegal search. Ihe trial court found that I )ocktcr had a right to encounter l)ominguez based

on the Crime Stoppers tip and that there was some consent to enter the apartment. The trial

court lurther flund that once Dockter was inside the apartment. he had a reasonable basis

for continuing his investigation based on the burnt marijuana smell, the three additional

people who were in the kitchen and the noise ot movement upstairs. Further, the trial Court

found that there was a reasonable basis for Doekter to conduct the protective sweep upstairs

and that the protective sweep properly extended to the bedroom into the bathroom based

on the thcts the court had already found, in addition to what Dockter viewed in the bedroom.

The trial court also noted that the protective sweep led to the recovery of the other evidence

used to support the probable cause affidavit. Finally, the trial court found that the search

warrant was valid. Based on its findings, the trial court concluded that the search and seizure

was conducted legally under the applicable Texas statutes and the United States and Texas

Constitutions,

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Amador v. Stale, 221 S.W.3d 666,673 (Tex. Crim. App. 2007); Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial

court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo applicationof

lav-1olact quest wns that do in t turn on credibilit and demeano r.ilmador, 22 1 S. W.3d at

673; Ectrada v. State, 154 S.W.3d 604. 607 (Tex. Crim, App. 2005); Jnhnson v. State, 68

S.W.3d 644. 65253 (Tcx. (‘rim. App. 2002). A trial court abuses its discretion if it refuses

to suppress evidence that is obtained in violation of the law and that is therefore

inadmissible. If i/son r. State, 3 II SW .3d 452. 458 (Tec Crim .App. 2010).

The Fourth Amendment to the United States Constitution and Article I Section 9 of ,

the Texas Constitution protect citizens 1mm unreasonable searches and seizures. U.S.

CoNs’r. amend, IV; TEx. CoNs’r, art. 1, §9. See Illinois v. Rodriguez, 497 U.S. 177, 131

(I 990); Limoii v. Slate, 340 S,W .3 d 753, 756 (‘[cx. Crim. App. 2011). Article 38.23 of the

Texas Code of Criminal Procedure forbids the admission of evidence seized by any person

or officer when that evidence has been obtained in violation ol the federal or state

constitutions or federal and state laws. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West

2005); Iranse i’. 5tate, 243 S.W.3d 95, 103 (Tex. App.— -Houston [1st Dist.J 2007, pet.

ref’d).

There is a strong preference for searches to be administered pursuant to a search

warrant. Guitierrez v State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Underthe Fourth

Amendment, a search conducted without a warrant issued on probable cause is per se

unreasonable unless it falls within one of the well-established exceptions to the warrant

requirement. Sehneckloth v. Bustamonte, 412 U.S. 21 8. 219 (1973).

—7— I iitrv 11110 a residence by polIce officers is a seaicli for purposes of the hourth

Amendment. Limon,34() S.W.3d at 756. A warrantless entry by the police into a residence

is presumed unreasonable unless the entry l’alls within an exception. Id. at 756. One of those

exceptions is when voluntary consent has been obtained from the individual whose propertY

was searched or from a third party who possessed common authority over the searched

premises. Rodriguez, 497 U.S. at 181; Li non, 340 S.W.3d at 756.

Appel hint concedes that i)ominguez consented to the officers’ entry into the

apartment, but argues there was no consent to search tile upstairs. Appellant also contends

tile protective sweep was improper and therefore “the search of the upstairs portion of the

apartment cannot be justified.’’’

One exception to the necessity ofa search warrant is a “protective sweep’ pertormed

by police officers. Matyland v, Buie, 494 U.S. 325, 327, (1990). A protective sweep is a

“quick and limited search of premises. incident to an arrest and conducted to protect the

safety of police officers or others.” Reasor v. State, 12 S.W.3d 813. 815 (Tex. Crirn. App.

2000). The sweep must not be a “[lull search of the premises” and the searching officers must

possess “a reasonable belief based on specific and articulable facts that the area to he swept

harbors an individual posing a danger to those on tile atTest scene.” 1(1. at 8 1 6.2

To the extent appellant intended to argue that the items seized during the protective sweep did not support the issuance of the warrant, the argument is waived as inadequately briefed See Trx. R. Art’. P. 38.1

2 Appellant does not ehallenee the seizure of items that were in plain view during the protective sweep. When police are lawfully on the premises. they may seize without a warrant, anything they discover in plain view if it is immediately apparent that it constitutes contraband. See State r’. Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App. 1987) (citing Minnesota v. Dickerson, 508 u.s. 366, 375 (1993)).

—8— I lere. the officers’ entry into the apartment was not unreasonable because Dorningucz

consented to the entry. Dockter testified that once he was in the apartment, he smelled

burned marijuana and saw three men in the kitchen who admitted smoking it Although the

men claimed the marijuana was gone. Dockter noted that in his experience, a claim that the

drugs are all gone is usually not true. [)ockter also heard a lot of movement upstairs. and

determined that he needed to secure the residence for officer safety. When he went upstairs,

he was surprised to find a larger number ofpeople in the apartment than he expected to find

in such a small space. Dockter stated that other people could have posed a danger to the

officers and he wanted to prevent the destruction of evidence. After he checked the first

mom and escorted appellant and the others downstairs, he returned to check the other two

bedroom and bathroom upstairs to insure that there were no additional people hiding.

Dockter’s search ofthe premises was limited to a protective sweep, and was necessary under

the circumstances to protect the safety of the officers. Sec Id. Viewed in the light most

favorable to the trial court’s ruling, we conclude the trial court did not err in finding Dockter

had permission to enter the apartment, and once inside, did not exceed the permissible scope

of a protective sweep. Appellant’s second issue is overruled.

In his third issue, appellant argues the trial court erred in denying his motion to

suppress because the statements he made to Dockter were the product of custodial

interrogation without Miranda warnings. See Miranda v. Arizona, 384 U.S. 436,444(1966).

Specifically, appellant complains about Dockter’s inquiry concerning his name, who lived

-9- in the apartment, and why appellant was there.

The need 11w Miranda warnings arises when a person being questioned by law

entbrcement officials has been “thken into custody or otherwise deprived of his freedom of

action in any significant way.” Miranda, 384 U.s. at 444; Herrera v. State, 241 S.W.3d 520,

525 (Tex. Crim. App. 2007). In determining whether an individual is in custody, we first

examine all of the circumstances surrounding the interrogation to determine if there was a

formal arrest or “restraint of freedom of movement to the degree associated with a fonnal

arrest.” Stanxburv v. Cabjbniia. 511 U.S. 318, 322 (1994). This determination focuses on

the objective circumstances ofthe interrogation and not on the subjective views of either the

interrogating officers or the person being questioned. Id. at 323. We next consider whether;

in light of the particular circumstances, a reasonable person would have felt that he was at

liberty to terminate the interrogation and leave. Thompson v. Keohane. 516 U.S. 99. 112

(1995); Herrera. 241 S.W.3d at 532. The court ofcriminal appeals has outlined four general

situations that may constitute custody: (1) when the suspect is physically deprived of his

freedom of action in any significant way, (2) when a law enforcement officer tells the

suspect that he cannot leave; (3) when law enforcement officers create a situation that would

lead a reasonable person to believe that his freedom of movement has been significantly

restricted; and (4) when there is probable cause to arrest [and the officers’ knowledge of

probable cause is communicated to the suspect] and law enforcement officers do not tell the

suspect that he is free to leave. Dowthit4 931 S.W.2d at 255. These situations will indicate

-10- custody if the circumstances would lead a reasonable person to believe that he is under

restraint to the degree associated with an arrest. Ict; see also C’ali/brnia v. &‘lwlei; 463 U.S.

1121,1125 (1983). Concerning the first three situations, the restriction on freedom of

movement must amount to the degree associated with an arrest as opposed to an

investigative detention. Dowthiu. 931 S .W.2d at 255. Concerning the fourth situation, the

officer’s knowledge of probable cause must be manifested to the suspect and does not by

itself, establish custody. Ict

A person held for investigative detention is not in “custody.” Dowthitt, 931 S.W.2d

at 255. An investigative detention involves detaining a person reasonably suspected of

criminal activityto determine his identity or to momentarily maintain the status quo to garner

more infonnation. Tern’ v. Ohio. 392 U.S. I 20-21(1968). The distinction between custody ,

and detention is significant. Neither Miranda nor article 38.22 of the Texas Code of

Criminal Procedure preclude the admission of noncustodial statements. See Miranda, 384

U.S. at 444; TEX. CODE CRIM. PRoc. ANN. art. 38.22 §5 (West 2005); see also Dowlhitt, 931

S.W.2d at 263.

In support of his claim that he was in custody. appellant relies on Ramirez v. Stale,

105 S.W.3d 730 (Tex. App.—Austin 2003, no pet.). Appellant’s reliance on Ramirez is

misplaced. In Ramirez, the court did find that the defendant was in custody after the officer

told him he was being detained and he was handcuffed and frisked. Id. at 740. But the court

also concluded that when the officer first arrived at the scene and asked the defendant

—11— general questions, there was only an investigation detention even though the officer

testified that neither the defendant nor the co-detèndant were free to leave. Id. at 739-40.

The scene remained an investigative detention when a second officer arrived and conducted

a pat-down Ibr weapons. Id.

Similarly, in the instant case, appellant was not in custody when Dockter asked him

to identifi himself. Although appellant’s freedom of movement was restricted, it was not

restricted to the degree of an arrest. Instead, he was being detained in conjunction with

Dockter’s protective sweep and investigation. As a result, Miranda warnings were not

required.

Moreover, even if appellant was in custody, the officer’s preliminary questions still

do not implicate Miranda. Not all statements made by a suspect after being taken into

custody are products of custodial interrogation. See butis, 446 U.S. at 303; Jones.795

S.W.2d at 174 n.3. In order to trigger Miranda, the suspect must not only be in custody; he

must also be subject to interrogation. See Miranda. 383 U.S. at 444. Interrogation

encompasses any word or action on the part of police officers that they should know is

reasonably likely to elicit an incriminating response from a suspect See Rhode island i’.

Innis, 446 U.S. 291,301(1980). The focus is on the perception of the suspect, not the intent

ofthe police. Id.; Jones i’. State, 795 S.W.2d 171, 174 (Tex. Crim. App. 1990). General and

routine questions do not constitute interrogation. Ruth v. State, 167 S.W.3d 560,571 (Tex.

App.—Houston [14th Distj 2005, pet denied); see also Jones, 795 S.W.2d at 174.

—12— Appellant was asked his name and what he was doing at the apartment. These questions

were routine, general, and were not reasonably likely to elicit an incriminating response.

Because there was no interrogation, Miranda warnings were not reqLnred. Set’ Ecirada it

Singe, 313 S.W.3d 274. 296 (Tcx. Crim. App. 2010) (warnings not required when suspect

is not in custody and there is no interrogation). Appellant’s third issue is overruled.

Voluntarine.tc

In his tburth issue, appellant argues he was entitled to an instruction on the

voluntariness of the statements he made to the officer when interrogated at his residence.

Appellant contends Dockter had his gun drawn when he asked appellant to identify himself,

and as a result, his statement was not voluntary. The State responds that an instruction was

not required because appellant was not in custody when he made the statements and

Miranda warnings were not required.

But we need not decide whether the trial court erred in refusing a voluntariness

instruction, because any error was harmless. See TEx. R. App. P. 44.2(b). Appellant’s

statements that he lived in the apartment and shared a bedroom with Dominguez did not

incriminate him. Dominguez had already testified that appellant lived with her in the

apartment. and nothing that appellant told Dockter showed that he was guilty ofthe offense.

Appellant’s fourth issue is overruled.

Batson Challenge

Appellant also maintains the trial court erred in overruling his Batson objection to

—13— the Stat’s exercise of a peremptory challenge against veniremember Paeheeo. According

to appellant, the Sate’s use of a peremptory challenge was racially motivated. The State

asserts the trial court correctly ruled that the State had a race-neutral reason for striking the

veniremembers and did not violate Raison. We agree with the State.

The use of peremptory challenges to exclude persons from a jury because of their

race violates the Equal Protection Clause ofthe Fourteenth Amendment to the United States

Constitution. See U. S. CoNwr. amend XIV; Raison v. Ken hwkr. 476 U.S.79, 84-85(1986);

Ladd v. Stare, 3 S.W.3d 547,563 (rex. Crim. App. 1999). Under Batson, a prosecutor may

not exercise a peremptory strike against a veniremember solely on account of race. Grant

v. Slate, 325 S.W.3d 655,657 (Tex. Crim. App. 2010). Raison objections entail a three-step

process in the trial court. First, the opponent ofthe peremptory strike must object and make

a prima facie case ofracial discrimination. Greer v. State, 310 S.W.3d 11, 13 (rex. App. —.

Dallas 2009. no pet.). If this burden is met, it shifts to the other party to articulate a race-

neutral reason for the peremptory strike. Davis v. Stare. 329 S.W.3d 798, 815 (Tex. Crim.

App. 2010). A persuasive or even plausible explanation is not required; all that is required

is an explanation devoid ofinherent discriminatory intent Bausley v. State, 997 S.W.2d 313,

316 (Tex. App.—Dallas 1999, pet. ret”d).

Once a race-neutral explanation has been tendered, the opponent of the strike is

afforded an opportunity to rebut the proponent’s explanation. See Shuffleld v. State, 189

S.W.3d 782,785 (Tex. Crim. App. 2006). Ifthe striking party proffers a race-neutral reason,

-14- the trial court must then decide as a question of fact whether the opponent of the strike has

proved purposeflul racial discrimination. Gran6 325 S.W.3d at 657. The opponent of the

strike bears the burden of proving that the race-neutral reason is a pretext by a

preponderance of the evidence. Greeit 310 S.W.3d at 13.

A trial court’s ruling on a Batson challenge will be sustained unless it is clearly

erroneous. (freer, 310 S.W.3d at 13. A ruling is clearly erroneous if, after a review of the

entire record, the reviewing court is left with the definite and finn conviction that a mistake

has been committed. fri. The record of the voir dire and the liaison hearing is reviewed in

the light most favorable to the trial court’s ruling. Davis, 329 S.W.3d at 815. Because the

evaluation of the credibility of the striking party and veniremembers lies peculiarly within

the province of the trial court, a reviewing court defers to the trial court in the absence of

exceptional circumstances. Grunt, 325 S.W.3d at 657. But if the trial court erroneously

overruled a liaison challenge, the reviewing court must reverse and remand for a new trial.

Greer, 310 S.W.3d at 14.

During voir dire, defense counsel requested that the State provide a race-neutral

reason for striking five Hispanic members ofthejury panel. With regard to Pacheo, the only

panel member about which appellant complains on appeal, the State noted that Pacheo listed

herself as a white female on her juror card. The State further stated:

She had a sister who had a charge for credit card abuse and stated in her questionnaire that she wants to be in the criminal justice system. We were not able to— we did not have time to develop that through questioning and were concerned about both of those two issues.

-15- I lie trial court suhsequeni Iv lound that the State had i en a raceneutral reason flr the

.s t ri k e

On appuiI. appellant contends that the State’s reason or strikinr Pacheo was

pretextual. We need not detennine whether appellant established a prima hide case of

discrimination, given that the State articulated its reasons fbr the peremptory strike and the

trial court ruled on the issue of discrimination. .S’ee Young i S’tute, 283 S. W.3d 51. $66

(Tex. Crim. App. 2009). Accordingly, we proceed to a review ol whether the trial courts

ruling was clean erroneous. SeL’ 1(1.

The reason for exercising a peremptory strike is race neutral, unless a discriminatory

intent is inherent in the explanation given. Par/thu v. Elem, 514 U.S. 765, 76$ (1995), The

State’s explanation need not be persuasive or even plausible. Id. at 767--6$. The

persuasiveness of the justification is relevant to the trial court’s determination of’ whether

the opponent of the strike proved purposeful discrimination. Id. at 768. Several factors aid

this determination: (1) the State used peremptory challenges to eliminate a far greater

proportion of minorities than non-minorities; (2) the States reasons for eliminating

minorities appeared to apply equally well to many of the non-minorities whom the State did

not challenge; (3) the State chose to shuffle the jury panel in a manner that supported an

inference of race discrimination; (4) the State directed questions designed to elicit grounds

for peremptory challenges disproportionately, in a manner suggestive of an intent to single

out minorities for elimination; and (5) the county of prosecution followed a formal policy

—16— to exclude minorities from jury service. JIakins i Slate. 245 S.W.3d 444. 448-49 (-rex. Crim. App. 2008).

The record does not indicate that racial discrimination motivated the State’s decision

to strike Pachco. Indeed. it is not possible to analyze the race or ethnicity of the jurors

because the record does not include the juror cards.

Appellant asserts that two white jurors also had criminal histories. But the race of

these jurors is not apparent on the record, and he record must reflect more than the mere

fact that the objectionable characteristic of a stricken juror was also possessed by accepted

jurors of a different racial background.” Whitaker v.. State. 977 S.W.2d 869, 875 (Tex.

App.—Bcaumont 1998, pet. ref’d). Moreover, the record does not indicate that the State

used its peremptory challenges to eliminate more minorities than non-minorities, requested

a jury shuffle, singled out minorities during questioning, or followed a formal policy of

excluding minorities from jury service. Therefore. viewing the entire voir dire record and

absent exceptional circumstances in this ease, we conclude the trial court’s denial of

appellant’s Batson motion is not clearly erroneous. See Iiieto, 365 S.W.3d at 676.

Appellant’s Batson issue is overruled.

Admission ofEvidence

During trial, Dominguez provided a letter that she had received from appellant while

they were both injail for the instant offense. The exhibit was admitted without objection for

record purposes only, and the trial court allowed the State to publish part of the letter by

—17— agreement. ‘l’hc prosecutor read a portion of the letter to the jury as Ibilows:

Say, Babe, let’s talk about this issue. You got me. right? Either you got to say this shit’s yours when you go to court, or I’ll say it’s yours when I go. Wc both have to say it belonged to you. That’s the only way I’ll get off this charge. You’re not going to be alone. I won’t let that happen. And yes, I love you. 1 got love for you and all the above.

When Dominguez was asked how she IbIt when appellant asked her to take all

responsibility, she answered, “1 thought [appellant] was full of shit.” During the charge

conference, the prosecutor informed the trial court that the State wanted to offer a redaeted

copy of the letter, which contained more than what was read to the jury. Defense counsel

objected that almost all of the letter was irrelevant, that it was more prejudicial than

probative, and that the letter had been admitted for record purposes only. The prosecutor

responded that she believed the letter had been offered for record purposes only because it

needed to be redacted. The prosecutor asserted that the rest of the letter went to the

relationship between appellant and Dominguez, as well as the admission or veiled admission

by appellant that he was in possession of the drugs but that Dominguez should take the

blame. The trial court overruled defense counsel’s objection and held that the letter had

some relevance to the nature and extent of the relationship between appellant and

Dominguez. The trial court then allowed the State to re-open its evidence and introduce the

redacted letter into evidence.

In his fifth issue, appellant argues the trial court erred in admitting the letter into

evidence because it was not relevant and was “highly prejudicial.” In particular, appellant

-18- complains that the letter contained two potentially racist remarks, gang signs. and a reibrence

to his prior incarceration at another fheilty. We review a trial Courts decision to admit or

exclude evide nec under an abuse ol discretion standard. Cf isuv r. .Statc, 21 5 SW,3d X70,

879 (Tex. Crini. App. 2007). A trial court abuses its discretion when its decision lies outside

the zone ot reasonable disaureement. Id. Relevant evidence may be excluded if its probative

iluc is suhst intl ilk out uuhul b\ th danrLi ot unfaii pic.judicc. S Ii \ R E \ II) 40

Unfair prejudice refers to the likelihood that the jury would decide the case on an improper

basis. commonly, though not necessaril , an emotional one. See Gigliorianco v. State, 210

S.W.3d 637, (41 (Tex. Crim. App. 2006). There is a presumption that relevant evidence is

more probative than prejudicial. Sante/Ian v. Slate, 930 S.W.2d 1 55, 169 (Tex. Crim. App.

1997), The court ol’ criminal appeals has identified a nonexelusive list of lactors to apply

in making a Rule 403 analysis. These factors include, but are not limited to: (1) how

probative the evidence is (2) the potential of the evidence to impress the jury in an ilTational

but indelible way; (3) the time the proponent needs to develop the evidence; and (4) the

proponent’s need for the evidence, Reese v. State, 33 S.W.3d 238, 240—41 (Tex. Crim. App.

2000).

Weighing the rule 403 factors, the trial court could have reasonably concluded that

the probative value of the letter was not substantially outweighed by its inflammatory nature,

if any. See Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App. 2006) (‘[Wjhen

determining whether evidence is admissible under Rule 403, we do not considerjust whether th &V i.d&nCe is. mc.re prejr..cii..cia.i i.h.an. probative, we consider whethe.r the proba.t.i.ve value is

substantially outweighed by the danger of un!zir prejudice”f The letter was probative of

appellant’s relationship with Dominguez as well as his guilt. There is no evidence of the

gang signs about which appellant complains, and the reference to appellant’s previous

incarceration was redacted, Although the letter contains some derogatory racial language,

the language is used by appellant to refer to himself Other racial references are directed at

Dommguei, in an apparent albeit misguided eftoit to be complimentary Accoidangly, we

conclude the trial court did not abuse its discretion by overruling appellant’s objection and

admitting the letter. Appellant’s fifth issue is overruled.

Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.

MARTiN JUSTICE

Do Not Publish TEx, R. APp, P.47

1 10367F.U05

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JUDGMENT ROCKY CABAL[ER(). Appellant Appeal from the Criminal District Court No. 7 oF Dallas (ountv, Texas. (Tr.CLNo. HO— No. 05- 11 -00367-CR 2$l 1-Y). Opinion delivered by J tistiee Richter, THE STATE OF TEXAS, AppeHee Justices Bridges and Lang participating.

Based on the (ourt’s opmion ol this date, the judgment of the trial court is AFFIRIIIfL).

Judgment entered December 5. 20 12.

A TIN Rl(HfE JUSTICE