COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00365-CR
CHRISTOPHER LIM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. F-2013-1991-A
MEMORANDUM OPINION 1
Appellant Christopher Lim appeals his first-degree-felony conviction for
possessing and intending to deliver between four and two hundred grams of
methamphetamine. 2 In three issues, he contends that the trial court abused its
1 See Tex. R. App. P. 47.4. 2 See Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2010). discretion by admitting certain evidence offered by the State and by overruling
his objection to part of the State’s closing argument concerning his guilt. We
affirm.
Background Facts
One afternoon in June 2012, Lewisville police officer Steven Schaffer
received a call about a disturbance occurring at a car mechanic’s shop. When
he arrived at the shop, he saw a man yelling at appellant, who was sitting in a
car. Officer Schaffer heard that the dispute between the two men concerned
“some stolen wheels.” When appellant stood up out of the car and began
walking near it, Officer Schaffer saw him carrying a glass narcotics pipe. Officer
Schaffer asked appellant about the dispute concerning the wheels, and appellant
said that he wanted to get back in the car. After Officer Schaffer told appellant to
stay out of the car, appellant asked to use the bathroom, and Officer Schaffer
believed that appellant was trying to “dispose of something.”
Officer Schaffer asked appellant whether he was carrying any contraband
in his pocket, and appellant said that he was not but allowed Officer Schaffer to
search him. Upon searching appellant, Officer Schaffer found a digital scale, a
pill bottle containing a crystal substance that Officer Schaffer believed to be
methamphetamine, and several plastic baggies. 3 Based on the large amount of
3 Officer Schaffer later conducted a field test of the substance, which returned positive for methamphetamine. A forensic scientist also tested the substance and confirmed that it was 17.13 grams of methamphetamine.
2 methamphetamine that he discovered and the presence of the baggies and the
scale, Officer Schaffer believed that appellant intended to deliver the
methamphetamine. Officer Schaffer arrested appellant.
A grand jury indicted appellant with possessing while intending to deliver
between four and two hundred grams of methamphetamine. The trial court set a
trial date for July 28, 2014. Appellant did not appear for trial that day. Instead,
he went to a hospital two times after trying to commit suicide twice by taking
drugs. According to appellant, on that day, although he knew he was not guilty,
he was “very scared, nervous, anxious, [and] beside [himself].” The next day,
appellant learned that a warrant had been issued for his arrest.
At the rescheduled trial a couple of weeks later, appellant appeared and
pled not guilty. In front of a jury, he testified that he is a long-time
methamphetamine addict and that he has been convicted of drug-related
offenses, including possessing a controlled substance with intent to deliver. 4 He
stated that he had previously used drugs at the car mechanic’s shop where he
was arrested but that in June 2012, he was in a period of sobriety.
Another officer who was at the scene corroborated much of Officer Schaffer’s testimony, including the testimony about what he found upon searching appellant. 4 In 2000, appellant was convicted of possessing and intending to deliver a controlled substance in 1999. His probation for that offense was revoked in 2002. He was also convicted in 2009 for possessing a controlled substance in 2008. He was also placed on deferred adjudication in 2009 for possessing less than a gram of methamphetamine in 2008.
3 Appellant testified that on the date of his arrest, he was at the shop to
retrieve his car when he saw a bag in the car that he did not recognize. He
stated that he opened the bag and saw that it contained drug-related items just
before police officers arrived at the shop. Appellant claimed that he panicked
and put some items in his pockets, where Officer Schaffer later found them, but
he denied that any of the items belonged to him or that he knowingly possessed
methamphetamine. He testified that he did not know who placed the drugs and
other items in his car.
After the parties concluded their presentation of evidence and arguments,
the jury convicted appellant. The jury then considered evidence (including
testimony by appellant and his mother) and arguments concerning appellant’s
punishment and assessed twenty years’ confinement. The trial court sentenced
appellant in accordance with the jury’s verdict and entered a judgment of
conviction. He brought this appeal.
Admission of Evidence
In his first two issues, appellant contends that the trial court abused its
discretion by admitting evidence related to his failure to appear at the first trial
setting and related to his prior drug-related convictions. We review a trial court’s
admission of evidence over a defendant’s objection for an abuse of discretion.
Sanders v. State, 422 S.W.3d 809, 812 (Tex. App.—Fort Worth 2014, pet. ref’d);
Sandone v. State, 394 S.W.3d 788, 791 (Tex. App.—Fort Worth 2013, no pet.).
An abuse of discretion occurs when a trial court’s decision is so clearly wrong as
4 to lie outside the zone of reasonable disagreement. Sanders, 422 S.W.3d at
812–13; Sandone, 394 S.W.3d at 791.
Before voir dire of the jury panel, during a discussion of appellant’s motion
in limine, the State informed the trial court that it intended to present evidence of
appellant’s failure to attend trial when it was originally scheduled and his drug
use on that date. The trial court indicated that it would later hold a hearing
outside of the jury’s presence concerning the admissibility of that evidence.
Later, after the State concluded its presentation of evidence on appellant’s guilt
and after appellant expressed his plan to testify during the presentation of his
case, the State proposed to present evidence about appellant’s “absenting
himself from” his prior trial date because his doing so was an indication of guilt.
Appellant asked for the exclusion of such evidence, contending that whether he
was “hiding out” or “fleeing” was speculative and had no relevance to whether he
was guilty of possessing and intending to deliver a controlled substance. The
trial court opined that the “case law is pretty clear that a Defendant’s voluntarily
absenting himself or fleeing from prosecution can be heard by the jury, and they
can even make some inference as to his guilt regarding that.” The trial court
therefore admitted evidence about appellant’s failure to appear for his first trial
date, including that he had admitted taking harmful drugs that day.
Similarly, before appellant began testifying, the State proposed to ask him
impeachment questions about his prior drug-related felony convictions.
Appellant objected on the grounds that evidence of his prior convictions would be
5 “highly prejudicial.” The trial court ruled that it would allow the State to ask
appellant about the prior convictions.
Evidence of failure to attend trial
Appellant first argues that the trial court abused its discretion by admitting
evidence that he did not appear at his original trial setting and that he used drugs
that day. He argues both that the evidence was irrelevant and that even if it was
relevant, it was extremely prejudicial.
Evidence is relevant if it has any tendency to make a material fact more or
less probable than it would be without the evidence. Tex. R. Evid. 401; see
James v. State, 356 S.W.3d 728, 733–34 (Tex. App.—Fort Worth 2011, pet.
ref’d). Only relevant evidence is admissible. See Tex. R. Evid. 402; James, 356
S.W.3d at 733. A trial court may exclude relevant evidence if its probative value
is substantially outweighed by a potential for unfair prejudice. Tex. R. Evid. 403.
We have explained that factors in a rule 403 balancing test include
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time[5] or merely repeat evidence already admitted. The rules of
5 Here, only appellant testified about his failure to appear at the first trial setting, and his testimony in that respect was only a portion of his testimony as a whole.
6 evidence favor the admission of relevant evidence and carry a presumption that relevant evidence is more probative than prejudicial.
Kirk v. State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref’d),
(citation omitted); see also Padilla v. State, No. 02-11-00336-CR, 2012 WL
4815506, at *4 (Tex. App.—Fort Worth Oct. 11, 2012, no pet.) (mem. op., not
designated for publication) (“[A] trial judge is presumed to engage in the required
balancing test once rule 403 is invoked, and the judge is not required to sua
sponte place any findings or conclusions made into the record.”).
Texas courts have long held that extraneous acts designed to reduce the
likelihood of prosecution, conviction, or incarceration for an offense are relevant
and admissible to show a defendant’s “consciousness of guilt.” 6 See Ransom v.
State, 920 S.W.2d 288, 299 (Tex. Crim. App.) (op. on reh’g), cert. denied, 519
U.S. 1030 (1996); Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994),
cert. denied, 515 U.S. 1162 (1995). “Evidence of a defendant’s desire to die or
commit suicide is also admissible for this purpose.” Johnson v. State, No. 01-11-
00820-CR, 2013 WL 4680360, at *5 (Tex. App.—Houston [1st Dist.] Aug. 29,
2013, pet. struck) (mem. op., not designated for publication); see also Perry v.
6 This is the rule not only in Texas but also elsewhere. See United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir.) (explaining that it is “universally conceded that the fact of an accused’s flight, . . . resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself” (emphasis added)), cert. denied, 502 U.S. 886 (1991).
7 State, No. 08-12-00285-CR, 2014 WL 3051020, at *3 (Tex. App.—El Paso
July 3, 2014, no pet.) (not designated for publication) (“[T]he jury was free to
consider Appellant’s apparent suicide attempt . . . as evidence of consciousness
of guilt.”); Page v. State, No. 03-12-00137-CR, 2013 WL 4487546, at *4 (Tex.
App.—Austin Aug. 15, 2013, pet. ref’d) (mem. op., not designated for publication)
(“[T]he jury could have reasonably inferred from Page’s attempted suicide and
other behavior that he had a consciousness of guilt.”); Alonzo v. State, No. 01-
07-00506-CR, 2008 WL 2611887, at *6 (Tex. App.—Houston [1st Dist.] July 3,
2008, pet. ref’d) (mem. op., not designated for publication) (concluding that a jury
was entitled to infer a defendant’s consciousness of guilt from statements that he
wanted to die); Johnson v. State, 208 S.W.3d 478, 500 (Tex. App.—Austin 2006,
pet. ref’d) (holding that evidence of a defendant’s suicide plans was relevant to
show consciousness of guilt). 7
Based on this authority, we cannot conclude that the trial court abused its
discretion by determining that the evidence of appellant’s suicide attempt on the
day of the first trial setting, which included his drug use, 8 was relevant and
7 Appellant does not acknowledge or attempt to distinguish these cases concerning the admissibility of a defendant’s suicide attempt. 8 The fact that the “descriptive circumstances of [a defendant’s] flight show the commission of other crimes does not render the evidence per se inadmissible, . . . but, in fact, such crimes may be shown if they are necessarily related circumstances of the proof of the flight of the accused.” Arivette v. State, 513 S.W.2d 857, 862 (Tex. Crim. App. 1974).
8 admissible. See Ransom, 920 S.W.2d at 299; Sanders, 422 S.W.3d at 812;
James, 356 S.W.3d at 733–34. Although appellant contends in part that his
“ingesting of the illegal substance while on bond was an attempt to overdose and
in no way linked to whether or not he committed the offense he was charged
with,” the trial court could have reasonably determined that the suicide attempt’s
correspondence with the trial setting was more than merely coincidental and that
the jury could consider it as an attempt to avoid prosecution. Appellant admitted
while testifying that he was “[v]ery sad, very scared, nervous, anxious, [and]
beside [himself]” on the day he missed trial, and although he professed his
innocence, the trial court could have rationally determined that the suicide
attempt showed a consciousness of guilt. See Johnson, 2013 WL 4680360, at
*5.
Concerning appellant’s rule 403 complaint, we note that our sister courts
have described consciousness-of-guilt evidence as “one of the strongest kinds of
evidence of guilt.” Smith v. State, No. 10-13-00278-CR, 2014 WL 4783251, at *5
(Tex. App.—Waco Sept. 18, 2014, pet. ref’d) (mem. op., not designated for
publication); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no
pet.). Thus, although we recognize that the evidence of attempting suicide by
using drugs (the exact drugs appellant used were unspecified to the jury, as was
whether the drugs were legal) had some potential for prejudice in this case that
involved possessing and intending to deliver methamphetamine, considering the
factors above, we cannot conclude that the trial court abused its discretion by
9 determining that this potential did not substantially outweigh the probative value
of the evidence so as to overcome the presumption of admissibility. See Tex. R.
Evid. 403; Kirk, 421 S.W.3d at 782; see also Almaguer v. State, No. 13-12-
00605-CR, 2014 WL 5088386, at *13 (Tex. App.—Corpus Christi Oct. 9, 2014,
pet. ref’d) (op. on reh’g) (“Courts have held that the probative value of a crime
showing consciousness of guilt may outweigh its prejudicial impact.”).
For all of these reasons, we overrule appellant’s first issue.
Evidence of prior convictions
In his second issue, appellant contends that the trial court abused its
discretion by admitting evidence of his prior convictions as impeachment. He
argues, in accordance with his objection at trial, that the prior convictions were
prejudicial, that they had low probative value, and that they should have been
excluded under rule 403. He contends, “People commit this offense whether
they have prior convictions for it or not. Simply because Appellant has similar
convictions does not mean that he committed this offense.”
In “unambiguous plain language,” rule of evidence 609 provides that a
witness’s “credibility may be attacked by admitting evidence that the witness
previously has been convicted of a felony or crime of moral turpitude if the trial
court determines that the probative value of admitting the evidence simply
outweighs its prejudicial effect.” Meadows v. State, 455 S.W.3d 166, 170 (Tex.
Crim. App. 2015) (citing Tex. R. Evid. 609(a)). Once a defendant in a criminal
prosecution voluntarily takes the witness stand, he is subject to the “same rules
10 as any other witness and may be impeached . . . and treated in every respect as
any other witness testifying in his behalf, except when there are overriding
constitutional or statutory provisions.” Alexander v. State, 740 S.W.2d 749, 763
(Tex. Crim. App. 1987); see Medina v. State, 367 S.W.3d 470, 474 (Tex. App.—
Texarkana 2012, no pet.) (“A defendant who testifies at trial may be impeached
in the same manner as any other testifying witness.”); Miller v. State, 196 S.W.3d
256, 267–68 (Tex. App.—Fort Worth 2006, pet. ref’d) (mem. op.) (“Generally, a
defendant who testifies may be impeached by evidence of a prior conviction if the
crime was a felony or involved moral turpitude and the court determines that the
probative value of admitting the evidence outweighs its prejudicial effect.”).
When weighing the probative value of a prior conviction used for
impeachment against its prejudicial effect, courts may consider, among other
factors, the impeachment value of the prior crime, the temporal proximity of the
past crime relative to the charged offense and the witness’s subsequent history,
the similarity between the past crime and the offense being prosecuted, the
importance of the defendant’s testimony, and the importance of the credibility
issue. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992); see Miller,
196 S.W.3d at 268 (reciting and applying the Theus factors); Woodall v. State, 77
S.W.3d 388, 395 (Tex. App.—Fort Worth 2002, pet. ref’d) (same).
The two prior convictions here each involved appellant’s possession of
controlled substances. Possession of a controlled substance does not involve
untruthfulness or deception, so the impeachment value of such a crime is lower,
11 which weighs against admission. 9 See Miller, 196 S.W.3d at 268; see also
Baldez v. State, No. 13-14-00257-CR, 2015 WL 1869435, at *2 (Tex. App.—
Corpus Christi Apr. 23, 2015, no pet.) (mem. op., not designated for publication).
Next, the 2009 conviction was temporally proximate to the current offense,
alleged to have been committed in 2012, and both prior convictions were
probative to the extent that they demonstrated “a propensity for running afoul of
the law.” See Theus, 845 S.W.2d at 881 (concluding that the second factor
favored admission when the State offered a 1985 conviction in the trial of an
offense that the defendant committed in 1990); Miller, 196 S.W.3d at 268
(holding that the second factor favored admission when the prior conviction
occurred in 1997 and the charged offense occurred in 2003); see also Baldez,
2015 WL 1869435, at *2 (holding that a six-year gap between the prior conviction
and the offense being tried favored admission).
Third, the past crimes and the offense being prosecuted were similar,
which “militate[s] against admission.” See Theus, 845 S.W.2d at 881 (“The
rationale behind this is that the admission for impeachment purposes of a crime
similar to the crime charged presents a situation where the jury would convict on
the perception of a past pattern of conduct, instead of on the facts of the charged
offense.”); Miller, 196 S.W.3d at 268 (“The similarity between Appellant’s prior
9 However, the court in Theus emphasized that all felony convictions have some probative value on the issue of a witness’s credibility. See 845 S.W.2d at 879 & n.3.
12 conviction for possession of a controlled substance and the instant offense of
possession of . . . methamphetamine with intent to deliver militates against the
admission of the prior conviction.”).
The last two factors are
related, because both depend on the nature of a defendant’s defense and the means available to him of proving that defense. In situations where a defendant presents an alibi defense and can call other witnesses, the defendant’s credibility is not likely to be a critical issue. Moreover, in such situations the defendant will not necessarily need to testify because other witnesses will be able to give evidence of his defense. When the case involves the testimony of only the defendant and the State’s witnesses, however, the importance of the defendant’s credibility and testimony escalates. As the importance of the defendant’s credibility escalates, so will the need to allow the State an opportunity to impeach the defendant’s credibility.
Theus, 845 S.W.2d at 881. Under this rationale, the last two factors weigh in
favor of admitting the prior convictions in this case. Appellant’s defense in the
guilt-innocence phase of the trial consisted solely of his testimony supporting his
theory that although the police found the methamphetamine (and related items)
on him, he did not intentionally possess them and did not intend to deliver them.
The trial court could have rationally determined, therefore, that his credibility was
vitally important, and the court could have weighed that determination in favor of
admitting evidence of the prior crimes. 10 See id.; see also Woodall, 77 S.W.3d at
10 Appellant recognized at trial that his defense hinged on his credibility; he testified, “[A]ll I have, really, is the integrity of my word, and that has greatly increased in the past couple of years.”
13 396 (“[W]here the case boils down to a ‘he said, she said’ situation between two
witnesses, with little evidence to tip the scale in either party’s favor, each
[witness’s] credibility becomes critical to the outcome of the case.”).
In reviewing the trial court’s decision to admit appellant’s prior convictions
for impeachment in light of these factors, we must accord the trial court wide
discretion. Theus, 845 S.W.2d at 881. Considering the factors here, although
the trial court could have weighed some of them in favor of excluding the
evidence, we cannot hold that the trial court abused its wide discretion by
implicitly finding that the probative value of the evidence outweighed its
prejudicial effect and by admitting the evidence. See id.; Sanders, 422 S.W.3d at
812; Miller, 196 S.W.3d at 267–69 (holding that a trial court did not abuse its
discretion by admitting evidence of a prior drug-related conviction in the trial of a
drug-related offense even though some of the Theus considerations weighed
against admission); see also Tex. R. Evid. 403 (allowing for exclusion of relevant
evidence only when unfair prejudice substantially outweighs probative value),
609(a)(2). We overrule appellant’s second issue.
Jury Argument
In his third issue, appellant contends that the trial court erred by overruling
his objection to part of the State’s closing argument, which he contends
introduced facts that were outside the record. We review the trial court’s ruling
on an objection to the State’s jury argument for an abuse of discretion. See
Whitney v. State, 396 S.W.3d 696, 705 (Tex. App.—Fort Worth 2013, pet. ref’d)
14 (mem. op.); Montgomery v. State, 198 S.W.3d 67, 95 (Tex. App.—Fort Worth
2006, pet. ref’d). The purpose of closing argument is to assimilate the evidence
to assist the factfinder in drawing proper conclusions. Davis v. State, 268
S.W.3d 683, 714 (Tex. App.—Fort Worth 2008, pet. ref’d). To be permissible,
the State’s jury argument must fall within one of the following four general areas:
(1) summation of the evidence, (2) reasonable deduction from the evidence, (3)
answer to argument of opposing counsel, or (4) plea for law enforcement. Felder
v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert. denied, 510 U.S.
829 (1993); Whitney, 396 S.W.3d at 704.
“Counsel is allowed wide latitude without limitation in drawing inferences
from the evidence so long as the inferences drawn are reasonable, fair,
legitimate, and offered in good faith.” Gaddis v. State, 753 S.W.2d 396, 398
(Tex. Crim. App. 1988); see also Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim.
App. 2007) (“[A]n inference is a conclusion reached by considering other facts
and deducing a logical consequence from them.”). But counsel “may not use
closing arguments to present evidence that is outside the record. Improper
references to facts that are neither in evidence nor inferable from the evidence
are generally designed to arouse the passion and prejudice of the jury and, as
such, are inappropriate.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim.
App. 2011) (emphasis added), cert. denied, 132 S. Ct. 1099 (2012).
During the State’s closing argument on appellant’s guilt, the following
exchange occurred:
15 [THE STATE:] . . . [A] reasonable inference from this evidence would be that it appeared that [appellant] was in some sort of dispute with the mechanics there, and that there was something owed, there was some dispute over these tires, and these tires were going to be returned.
Well, maybe to pay . . . for these tires, [appellant] had the currency that he trades in, and that’s methamphetamines. That’s a reasonable inference from this evidence, is that those were his methamphetamines, and he had them there, and he had them in his hand there to be able to pay for these tires, to make good on whatever this civil debt was between these rims and these tires and this mechanic’s space.
[DEFENSE COUNSEL]: Your Honor, I object, assuming facts not in evidence.
THE COURT: Overruled.
[THE STATE]: So that is absolutely a reasonable inference from the evidence here.
On appeal, appellant contends that while “there is evidence in the record that
[a]ppellant was in some sort of dispute with the 911 caller, there was no evidence
at all that [a]ppellant was there . . . trying to pay for the car tires with drugs.”
The State argues that its closing argument was a reasonable inference
from the evidence. We agree. Appellant testified that he had used drugs in the
past at the mechanic’s shop where he was arrested. He stated that Manolo, the
owner of the shop, had used drugs with him there. Appellant admitted that on
the day of his arrest, Manolo became angry with him while believing that
appellant owed him money. Officer Schaffer indicated that when he arrived at
the shop, “a guy”—perhaps Manolo—was yelling at appellant. Officer Schaffer
also testified that he learned that there was a “dispute . . . over some stolen
16 wheels.” Upon searching appellant, Officer Schaffer found a large amount of
methamphetamine, 11 a scale, and several plastic baggies, indicating to Officer
Schaffer that appellant was “a dealer.” The methamphetamine had a value of
over $1,000.
Given the circumstances that appellant had an apparent debt to Manolo,
that he and Manolo had participated in drug interactions with each other in the
past at the shop, and that appellant possessed all of the components of dealing a
valuable amount of methamphetamine while at the shop, we conclude that the
State’s argument that appellant attempted to settle the debt by delivering
methamphetamine was a reasonable deduction from the evidence. See Felder,
848 S.W.2d at 94–95; Gaddis, 753 S.W.2d at 398. Therefore, we conclude that
the trial court did not abuse its discretion by overruling appellant’s objection to
the argument on the ground that the “facts [were] not in evidence,” and we
overrule his third issue.
11 Officer Schaffer testified that a mere user of methamphetamine typically carries no more than a gram. Appellant possessed over seventeen grams.
17 Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: October 1, 2015