Christopher Earl Green v. State

Opinion

Opinion issued April 5, 2012

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-01101-CR

———————————

Christopher Earl Green, Appellant

V.

The State of Texas, Appellee

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Case No. 2009R-0104

MEMORANDUM OPINION

          A jury convicted appellant, Christopher Earl Green, of delivery of a controlled substance and assessed punishment at 13 years’ confinement.  In his sole point of error, appellant contends the trial court erroneously admitted evidence of an extraneous offense.  We affirm.

BACKGROUND

          In May 2009, Sealy Police Department Captain S. Garrett was working with two police officers from neighboring Waller County to set up undercover drug buys in Sealy.  Garret gave the officers, Cortez and Watson, a button camera and money to conduct drug buys.  Cortez and Watson drove around Sealy looking for someone to sell them drugs.  They encountered a man named “Chris” in the 500 block of Anderson Street who told them that he could get them drugs if they paid him up front.  The officers needed approval from Captain Garrett before giving “Chris” the money, so they left the scene briefly and called the captain.

          Garrett testified that when the officers gave him the name “Chris” and the location, he “pretty much” knew the person they were talking to was appellant.  The following exchange then took place:

[Prosecutor]: And did you have an idea of who the suspect might be at that time.

[Garrett]:  Pretty much did.

[Prosecutor]:  Okay. How did you have that idea?

[Defense counsel]: Objection. May we approach?

[Trial Court]:  Be careful.  I know you know what the concern is.

[Prosecutor]: I recognize that and the objection, if we can briefly talk to the witness and instruct him not to go into priors.  But he can say, I am hoping that he does know the suspect and does know that there is a suspect named Chris Green who lives at that address.

[Defense Counsel]:  Judge, I think that is basically suggesting extraneous matters, that he has had contact with him before.

[Prosecutor]: He won’t have to say that he has contact with him before.

[Defense Counsel]: But same thing.

[Prosecutor]: He knows the person and knows where he stays.

[Jury excused and bench conference held.]

[Prosecutor]: Your Honor, I would just like to ask if he is familiar with the suspect and then he can answer.  And if I could be given a little lenience to lead to make sure that we don’t get into extraneous, but to ask if he is familiar with the suspect.

[Trial Court]:  How is he going to know what you’re leading to?

[Prosecutor]:  Well, I think he can answer just simply yes, I am familiar with him and I know that there is a man named Chris Green that lives at the 500 block [of Anderson Street] or stays at the 500 block in Sealy.

[Trial Court]: Okay. I guess what we need to guard against in mentioning any priors or any prior official contact.

[Garrett]: Yes, Sir.

[Trial Court]: Police and citizen contact.

[Prosecutor]: We won’t ask him how he knows him if —

[Defense Counsel]:  Judge, here is my problem.  You know, the officer sits up there and he says he works narcotics.  The implication is going to be pretty clear if he knows this guy, this is why.

[Prosecutor]:  He knows half of Sealy.

[Trial Court]: I understand it’s a possibility.

[Defense Counsel]: That is getting into extraneous matters.

[Trial Court]: I understand that is a possibility.  In small towns, it is not unusual for people to know everybody, whether they are into drugs or not.  It is a possible implication, but I don’t think it is a necessary conclusion. So we are going to let you go forward on that basis, of course.

[Defense Counsel]:  For the record, I am objecting to that, Judge.

[Trial Court]: Objection is overruled.

          After this exchange, the jury was brought back in.  Garrett then testified that he knew “Chris Green,” identified him as appellant, and stated that he knew that appellant frequently stayed in the 500 block of Anderson in Sealy.

[Prosecutor]: So when the officers told you that there was a subject named Chris and they gave a physical description of him and told you where he was located, did you have an idea that that could be Chris Green?

[Garrett]: Yes, ma’am.

EXTRANEOUS OFFENSE EVIDENCE

          In his sole point of error, appellant contends that the trial court erred by permitting Garrett to testify that he was “pretty sure” that Cortez and Watson were describing appellant when they called him because he knew a “Chris Green” and knew that he stayed in the 500 block of Anderson.  Specifically, appellant contends that Garrett’s testimony violated Rule 404 of the Texas Rules of Evidence because “it would certainly suggest to the jury the officer knows this individual because he is or was involved in the drug business previously.”

Standard of Review

We review a trial court’s admission of extraneous offense evidence under an abuse-of-discretion standard.  Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Blackwell v. State, 193 S.W.3d 1, 8 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion, and the ruling must be upheld. Thomas v. State, 126 S.W.3d 138, 143 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).  Rule 404(b) prohibits the introduction of extraneous offenses to show character conformity. Tex. R. Evid. 404(b); Page, 137 S.W.3d at 78; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Blackwell, 193 S.W.3d at 9.

Analysis

The State argues that testimony that an officer is familiar with someone, without elaboration, does not allege an extraneous offense of a prior bad act.  We agree.  A police officer’s testimony that he knows someone and knows where that person lives, without more, does not necessarily suggest that such person is a criminal or has committed any prior bad act.  As pointed out by the trial court, a police officer may have many reasons to be familiar with a person, especially in a small town such as Sealy. Appellant may have been a neighbor, a school mate, a friend, or an acquaintance of the officer.  There is nothing in the record to suggest that Captain Garrett knew appellant through prior criminal activity.  Thus, the trial court did not abuse its discretion in deciding that Rule 404, which prohibits evidence of extraneous criminal activity to prove character conformity, was not applicable.

          We overrule appellant’s sole point of error.

CONCLUSION

          We affirm the judgment of the trial court.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).