Escobar v. State

825 S.W.2d 254, 1992 WL 33969
CourtCourt of Appeals of Texas
DecidedMay 27, 1992
Docket01-90-00077-CR
StatusPublished
Cited by5 cases

This text of 825 S.W.2d 254 (Escobar v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Escobar v. State, 825 S.W.2d 254, 1992 WL 33969 (Tex. Ct. App. 1992).

Opinions

OPINION

DUGGAN, Justice.

A jury convicted appellant of delivery of heroin weighing by aggregate weight less than 28 grams, found two enhancement paragraphs to be true, and assessed his punishment at 60-years confinement. We affirm.

Richard Rios, a city of Houston police officer, testified that on August 29, 1989, while he and his partner, Officer Johnny Taylor, were in the 7000 block of Capitol Street in Houston, attempting to make undercover drug buys, they asked Juan Rodriguez if he could help them find some heroin.

[255]*255Officers Rios and Taylor then drove with Rodriguez to an apartment building at 6819 Avenue C to see if Rodriguez’s connection had any heroin. Rodriguez went inside, returned to the car a few minutes later, told Rios that his connection had heroin, and said that a gram would cost $300. Rios told Rodriguez they would return within an hour if they were interested, and then dropped Rodriguez off in the 7000 block of Capitol.

After discussing the case at the police station, Rios and Taylor returned and picked up Rodriguez. Rios told Rodriguez that he wanted to buy $40 worth of heroin to determine if it was of good quality. Rodriguez agreed, and they returned to the Avenue C apartment building.

Rodriguez and Rios went upstairs to Apartment 3, where Officer Rios purchased $40 worth of heroin at the door from appellant. Rios did not arrest appellant immediately after the sale because he intended to secure a search warrant for the apartment. A search warrant was obtained and executed at the apartment the next day, and appellant and others were arrested during that procedure. Officer Rios was not present.

In his third and final point of error, appellant contends the trial court abused its discretion in admitting evidence of his prior criminal misconduct. State’s exhibits five and six, appellant’s prison identification card and parole papers, were introduced over his objection during the guilt/innocence phase of trial.

During the State’s direct examination, Officer Rios testified that he accompanied Rodriguez to an apartment located at 6819 Avenue C to purchase heroin. Rodriguez knocked on the apartment door and someone on the inside answered, “What do you want?” Rodriguez said, “He’s here for the 40 dollars’ of heroin.” Officer Rios testified that it was appellant who then opened the door, looked at him, and asked for the money. Rios gave him $40, and appellant went back inside the apartment and closed the door behind him. Several seconds later, appellant re-opened the door and handed Rios two small, clear baggies containing heroin.

Officer Rios obtained a search warrant the following day, but did not participate in its execution. Appellant was arrested along with two other Hispanic males as they were leaving the apartment. A patrolman, who assisted in the execution of the search warrant and the arrest, brought Polaroid pictures of the three detainees to Officer Rios. Rios testified that he identified appellant at that time as the person who sold him the contraband.

On cross-examination, appellant’s counsel asked Officer Rios if, prior to or during the execution of the search warrant, any document was found in the apartment indicating who owned or leased the apartment. Officer Rios testified that no leasing contracts or rental receipts were found, but that officers believed other documents found inside the apartment indicated who the lessee was.

Officer Gary Clark, one of the officers who participated in the search of the apartment, testified that he found “papers” and “an identification card for this defendant” on a bedside table in the apartment. After argument outside the jury’s presence, the prosecutor offered these items in evidence as State’s exhibits five and six; the trial court admitted them over appellant’s objection.

“All relevant evidence is admissible” unless excluded by constitution, statute, or rule. Tex.R.CRIm.Evid. 402. “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R.CRIM.Evid. 403. However, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice ...” Tex.R.CRIm. Evid. 401.

The indictment alleged in pertinent part that appellant “intentionally and knowingly delivered by actual transfer to R. Rios, a controlled substance, namely heroin, weighing by aggregate weight less than 28 grams.” Thus, it was the State’s burden to [256]*256establish the identity of appellant as the person who delivered heroin to Officer Rios.

When a party attempts to adduce evidence of “other crimes, wrongs or acts,” the opponent of that evidence must object in a timely fashion to preserve error on appeal. Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990) (op. on reh’g). It is then incumbent upon the proponent of the evidence to satisfy the trial court that the “other crime, wrong, or act” has relevance apart from its tendency “to prove character of a person in order to show that he acted in conformity therewith.” Id.; Tex.R.CRim.Evid. 404(b).

If the trial court determines the evidence has no relevance apart from character conformity, then the evidence is absolutely inadmissible. Montgomery, 810 S.W.2d at 387. However, the proponent may persuade the trial court that the evidence showing some “other crime, wrong, or act” has relevance apart from character conformity in that it tends to establish some elemental fact such as, in the instant case, identity. Id. at 387-88; Tex.R.CRIM. Evid. 404(b). If the trial judge admits the evidence, then upon timely further request, the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves. Montgomery, 810 S.W.2d at 387-88; Tex. R.CRIM.Evid. 105(a).

When the State offered into evidence State’s exhibit five (appellant’s identification card issued by the Texas Department of Corrections (TDC)) and State’s exhibit six (appellant’s parole discharge papers), appellant objected. Outside the hearing of the jury, the trial court heard the following argument:

[Prosecutor]: Your Honor, Defense counsel has cross-examined the witness for, I thought it was close to an hour, and a lot of that cross-examination dealt with who lived in that apartment and whether it was this Defendant’s apartment, and basically brought into issue whether this Defendant had any connections to that particular apartment where the buy took place; therefore it’s the State’s position that State Exhibit Nos. 5 and 6 go to that very specific issue — identification—and that although there may be some prejudicial effect from those exhibits, the Defense has opened the door, and any prejudicial effect that those exhibits might have could be taken care of with a limiting instruction.
[Appellant’s Trial Counsel]: You Honor, first off, I am going to object to State Exhibits 5 and 6 based on the fact that it’s got so much hearsay evidence in those two documents, and particularly the paper document which is State Exhibit 6. I don’t know how you could delete all that and still present that document in some legible form.
That would be my objection, and that it presents extraneous offenses as to my client.

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Escobar v. State
825 S.W.2d 254 (Court of Appeals of Texas, 1992)

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Bluebook (online)
825 S.W.2d 254, 1992 WL 33969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/escobar-v-state-texapp-1992.