MODIFY, REFOR1’1, and AFFIRM; and Opinion Filed July 8. 2013.
In [lie (!tntrt of A4iiI1 .Fif1l! Jii1rtct of exao zi il1a
No. 05-12-00057-CR No, 05- 12-00058-CR
LARRY EUGENE FINNEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause Nos. F09-41136-Y and F11-00250-Y
MEMORANDUM OPINION Before Justices O’Neill, Francis, and Fillmore Opinion by Justice O’Neill A jury convicted appellant Larry Eugene Finney of aggravated assault of a public servant
with a deadly weapon (cause number F09-41136-Y) and evading arrest or detention (cause
number Fl l-00250-Y). He was sentenced in each case to seventy-five years’ imprisonment. On
appeal, he challenges the trial court’s admission of an extraneous offense and the court-ordered
payment of attorney’s fees. We modify the judgment in cause number F09-41 136-Y to delete
the court-ordered attorney’s fees, but in all other respects, affirm the trial court’s judgments.
Factual Background
On August 7, 2009, Officer Daniel Hargrove was working off-duty as a security officer
for the Starplex movie theater in Mesquite, Texas. He observed a car parked near the ticket
booth blaring loud music. He motioned to the driver to turn down the music. Officer Hargrove approached the car and told appellant he was parked in a fire lane and needed to move. At that
time, Officer Hargrove noticed a faint smell of marijuana coming from the car. Officer Hargrove
testified that as he looked inside the vehicle, appellant began to get agitated and said, “I’m just
going to get out of here, man, I’m just going to leave,” Officer Hargrove said that in his
experience this indicated appellant had something to hide, or he had a warrant out for his arrest.
Officer Hargrove asked appellant for his car keys several times. Rather than cooperate,
appellant began reaching between the car seats. Officer Hargrove thought appellant was trying
to grab a weapon or something else that could cause injury. He testified he believed he had two
options: (I) draw his weapon, drop back, and try to protect the other movie goers from potential
danger or (2) physically grab appellant and prevent him from grabbing whatever he was reaching
for. Officer Hargrove decided to grab appellant.
Appellant hit Officer Hargrove in the face with what he described as “a big piece of
metaL” Then the car started moving with Officer Hargrove’s body still partially inside the
window, He did not think the car went further than ten feet before appellant hit his arm and
caused him to fall to the concrete. The fall caused Officer Hargrove’s head to bleed. He
required medical attention to treat a malar fracture to his eye, a hairline fracture to his collarbone,
and a torn rotator cuff.
Officer John Nance received the officer-in-distress call on the night in question and
began searching in the direction appellant fled from the movie theater. He spotted appellant’s
car and began pursuit. Appellant eventually exited his car and proceeded to rnn on foot. Officer
Nance lost sight of appellant, but other officers in the area eventually found appellant hiding
under a tarp.
When officers detained him, they discovered three baggies of marijuana in his left cargo
pants pocket. When appellant’s car was later searched, marijuana was found in the trunk, in the
—2— door behind the drivers seat, and in the driver’s seat. In the glove compartment, ofTicers
discovered some documents. hooks. a digital scale, and a camera. i-\ppellant was arrested and
charged with aggravated assault ol a public servant with a deadly weapon (cause number F0Q
411 36Y) and evading arrest or detent ion (cause number Fl 1 00250Y ).
Before trial, appellant filed a motion to suppress the marijuana found on his person and in
his car, The trial court overruled the motion and ruled “the marijuana evidence will be admitted
into this case as inextricably intertwined with the offense.” The trial court further noted that
even if the evidence was not inextricably intertwined, it “would also admit it under Rule 404(b),
perform the required halancing test under Beeclinin, find it’s more probative than prejudicial and
believe that it goes to show plan and motive ftr evasion and so lorth.’
The jury found appellant guilty of each charged offense and sentenced him to seventy
five years’ confinement for each offense. The trial court assessed $200in attorney’s fees as part
of court costs in cause number F09-41 I 36-Y. This appeal followed.
Admission of Extraneous Offense Evidence
In his first issue, appellant argues the trial court abused its discretion by admitting
testimony regarding the possession of marijuana on his person and in his car. He asserts the
testimony was irrelevant and unnecessary to the jury’s understanding of the charged offenses,
and its probative value was substantially outweighed by its prejudicial impact. The State first
responds appellant waived his argument, but even if he preserved it, the evidence is “patently
same transaction contextual evidence, evidence of motive to evade detention, and intent to evade
detention.”
We review rulings on the admissibility of evidence under an abuse of discretion standard.
Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We will conclude a trial court
abused its discretion if its ruling lies “outside the zone of reasonable disagreement.” Id.
—3— The State irst argues appellant laded to preserve his issue br review because defense
counsels request for a running objection to the introduction of the marijuana evidence did not
include “counsel’s catchall 401. 403, and 404(b) objections. Therefore, the State contends
appellant waived his argument when he failed to object during trial to Detective Hargrove’s and
Officer Nance’s testimony. The following exchange occurred during the motion to suppress
hearing:
I Delense counsel I: Just as it relates to the Court’s ru1ing—-can I have a running objection to the—or objection to any marijuana that may he introduced or any testimony that relates to the marijuana that was found on his person and found in the vehicle. And we would object under 401 and 403 and also 404(b), Your Honor.
The Court: Okay. The request for a running objection is granted. All other objections are overruled,
We cannot agree with the State that the record clearly indicates appellant’s running
objection did not include the “catch-all” objections. Rather, one could read the exchange to
mean defense counsel was emphasizing that his request for a running objection was based on
rules 401, 403, and 403(b). This interpretation is also supported by the trial court’s prior
statement that the marijuana was admitted “as inextricably intertwined with the offense.” The
court’s statement overruling all other objections could likewise refer to defense counsel’s
previous arguments regarding the lack of probable cause to support the search warrant for
appellant’s vehicle.
Because the record does not clearly support waiver, we reject the State’s argument.
Therefore, we shall address the merits of appellant’s complaint.
Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person to show action in conformity therewith. Tux. R. EvID. 404(b). Under
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MODIFY, REFOR1’1, and AFFIRM; and Opinion Filed July 8. 2013.
In [lie (!tntrt of A4iiI1 .Fif1l! Jii1rtct of exao zi il1a
No. 05-12-00057-CR No, 05- 12-00058-CR
LARRY EUGENE FINNEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause Nos. F09-41136-Y and F11-00250-Y
MEMORANDUM OPINION Before Justices O’Neill, Francis, and Fillmore Opinion by Justice O’Neill A jury convicted appellant Larry Eugene Finney of aggravated assault of a public servant
with a deadly weapon (cause number F09-41136-Y) and evading arrest or detention (cause
number Fl l-00250-Y). He was sentenced in each case to seventy-five years’ imprisonment. On
appeal, he challenges the trial court’s admission of an extraneous offense and the court-ordered
payment of attorney’s fees. We modify the judgment in cause number F09-41 136-Y to delete
the court-ordered attorney’s fees, but in all other respects, affirm the trial court’s judgments.
Factual Background
On August 7, 2009, Officer Daniel Hargrove was working off-duty as a security officer
for the Starplex movie theater in Mesquite, Texas. He observed a car parked near the ticket
booth blaring loud music. He motioned to the driver to turn down the music. Officer Hargrove approached the car and told appellant he was parked in a fire lane and needed to move. At that
time, Officer Hargrove noticed a faint smell of marijuana coming from the car. Officer Hargrove
testified that as he looked inside the vehicle, appellant began to get agitated and said, “I’m just
going to get out of here, man, I’m just going to leave,” Officer Hargrove said that in his
experience this indicated appellant had something to hide, or he had a warrant out for his arrest.
Officer Hargrove asked appellant for his car keys several times. Rather than cooperate,
appellant began reaching between the car seats. Officer Hargrove thought appellant was trying
to grab a weapon or something else that could cause injury. He testified he believed he had two
options: (I) draw his weapon, drop back, and try to protect the other movie goers from potential
danger or (2) physically grab appellant and prevent him from grabbing whatever he was reaching
for. Officer Hargrove decided to grab appellant.
Appellant hit Officer Hargrove in the face with what he described as “a big piece of
metaL” Then the car started moving with Officer Hargrove’s body still partially inside the
window, He did not think the car went further than ten feet before appellant hit his arm and
caused him to fall to the concrete. The fall caused Officer Hargrove’s head to bleed. He
required medical attention to treat a malar fracture to his eye, a hairline fracture to his collarbone,
and a torn rotator cuff.
Officer John Nance received the officer-in-distress call on the night in question and
began searching in the direction appellant fled from the movie theater. He spotted appellant’s
car and began pursuit. Appellant eventually exited his car and proceeded to rnn on foot. Officer
Nance lost sight of appellant, but other officers in the area eventually found appellant hiding
under a tarp.
When officers detained him, they discovered three baggies of marijuana in his left cargo
pants pocket. When appellant’s car was later searched, marijuana was found in the trunk, in the
—2— door behind the drivers seat, and in the driver’s seat. In the glove compartment, ofTicers
discovered some documents. hooks. a digital scale, and a camera. i-\ppellant was arrested and
charged with aggravated assault ol a public servant with a deadly weapon (cause number F0Q
411 36Y) and evading arrest or detent ion (cause number Fl 1 00250Y ).
Before trial, appellant filed a motion to suppress the marijuana found on his person and in
his car, The trial court overruled the motion and ruled “the marijuana evidence will be admitted
into this case as inextricably intertwined with the offense.” The trial court further noted that
even if the evidence was not inextricably intertwined, it “would also admit it under Rule 404(b),
perform the required halancing test under Beeclinin, find it’s more probative than prejudicial and
believe that it goes to show plan and motive ftr evasion and so lorth.’
The jury found appellant guilty of each charged offense and sentenced him to seventy
five years’ confinement for each offense. The trial court assessed $200in attorney’s fees as part
of court costs in cause number F09-41 I 36-Y. This appeal followed.
Admission of Extraneous Offense Evidence
In his first issue, appellant argues the trial court abused its discretion by admitting
testimony regarding the possession of marijuana on his person and in his car. He asserts the
testimony was irrelevant and unnecessary to the jury’s understanding of the charged offenses,
and its probative value was substantially outweighed by its prejudicial impact. The State first
responds appellant waived his argument, but even if he preserved it, the evidence is “patently
same transaction contextual evidence, evidence of motive to evade detention, and intent to evade
detention.”
We review rulings on the admissibility of evidence under an abuse of discretion standard.
Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We will conclude a trial court
abused its discretion if its ruling lies “outside the zone of reasonable disagreement.” Id.
—3— The State irst argues appellant laded to preserve his issue br review because defense
counsels request for a running objection to the introduction of the marijuana evidence did not
include “counsel’s catchall 401. 403, and 404(b) objections. Therefore, the State contends
appellant waived his argument when he failed to object during trial to Detective Hargrove’s and
Officer Nance’s testimony. The following exchange occurred during the motion to suppress
hearing:
I Delense counsel I: Just as it relates to the Court’s ru1ing—-can I have a running objection to the—or objection to any marijuana that may he introduced or any testimony that relates to the marijuana that was found on his person and found in the vehicle. And we would object under 401 and 403 and also 404(b), Your Honor.
The Court: Okay. The request for a running objection is granted. All other objections are overruled,
We cannot agree with the State that the record clearly indicates appellant’s running
objection did not include the “catch-all” objections. Rather, one could read the exchange to
mean defense counsel was emphasizing that his request for a running objection was based on
rules 401, 403, and 403(b). This interpretation is also supported by the trial court’s prior
statement that the marijuana was admitted “as inextricably intertwined with the offense.” The
court’s statement overruling all other objections could likewise refer to defense counsel’s
previous arguments regarding the lack of probable cause to support the search warrant for
appellant’s vehicle.
Because the record does not clearly support waiver, we reject the State’s argument.
Therefore, we shall address the merits of appellant’s complaint.
Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person to show action in conformity therewith. Tux. R. EvID. 404(b). Under
certain circumstances, evidence may provide “same transaction contextual evidence.” “Same
transaction contextual evidence” refers to those events and circumstances that are intertwined,
-4- nseparahle lJrts of an event that, if viewed in isolation, would make no sense at all. See
i)elgado v. State, 235 S,W3d 244, 253 (Tex, Crim. App. 2007); Thomas e. State, No. 05-07-
00266-CR, 2008 WL 3906393, at *4 (Tex, App.—Dallas Nov. 19, 2008, pet. rerd) (not
designated for publication).
Such evidence is admitted to show the context in which the crime occurred “under the
reasoning thai 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 that act so they may realistically
evaluate the evidence.” t)elgado, 235 S.W.3d at 253 n.36 (citing Alhrecht i’. State, 486 S.W.2d
97, 100 (Tex. Crim. App. 1972)). however, only if the facts and circumstances of the instant
olfense would make little or no sense without also bringing in the same transaction contextual
evidence should that evidence be admitted. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App.
1993).
Courts have applied a two-part test in determining the admissibility of same transaction
contextual evidence. See Maves v.State. 816 S.W.2d 79, 84—87 (Tex. Crim. App. 1991). The
first step is determining whether the presence of marijuana on appellant’s person and in his car is
relevant under rule of evidence 401. Id. at 85; see also Rogers, 853 S.W.2d at 32 (Tex. Crim.
App. 1993). “Relevant evidence” means 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 he without the evidence. TEx. R. EVID. 401.
Appellant argues the relevancy of the marijuana to the offenses of evading arrest or
aggravated assault of a public servant with a deadly weapon “is negligible,” and his possession
of marijuana does not make it more probable he would commit the offenses. We disagree.
Appellant’s possession of an illegal substance explains his possible motive for hitting Detective
Hargrove and then fleeing the scene before the drugs could be found on him or inside his car.
—5— See. e. Pe1’rvo,, v.Suiie. 36 SW2d 760. Th2 (Tex. App. El Paso I)92, pet. ref’d>
concludin the trial court (lid iiot abuse its discretion by admitting evidence of marijuana, a
pistol, and ammunition because ii was relevant to show why the delendant assaulted an officer);
Maughter v. State, No. l4M500863CR, 2006 WL 2805564, at *3 (Tex, App.—Houston 114th
Dist.{ Oct. 3, 2006. no pet) (niem. op., not designated for publication) (noting evidence of illegal
drug possession helps prove why the defendant intentionally Fled from an officer and is therefore
relevant evidence). Thus, the trial court acted within the zone of reasonable disagreement by
determining the evidence was relevant.
The liexi step in the 1wopart test is to determine whether the background evidence at
issue is admissible as an exception under rule of evidence 404(b). Rogers, 853 S,W.2d at 33.
Admission of same transaction contextual evidence is such an exception. Id.
Appellant argues the marijuana evidence was not necessary to the jury’s understanding of
the charged offenses, and the State could have simply avoided describing the discovery of the
drugs. ‘We disagree.
Here, appellant was not acting suspiciously until Detective Hargrove moved closer to the
driver’s side window, detected a faint smell of marijuana, and began glancing at the steering
column, the floorboards, and the backseat of the car, Detective 1-largrove testified appellant
began to “get real defensive” as he was looking inside the car and told Detective Kargrove, “I’m
just going to leave.” Detective I-largrove felt appellant was trying to hide something.
It was shortly thereafter that appellant began reaching for something in between the seats,
and Detective Hargrove felt he needed to protect himself and the bystanders outside the theater.
Appellant’s reaction to hit Detective Hargrove with an unknown object and drive away is further
indication he did not want the marijuana found. Appellant’s behavior provided a possible motive
and intent for him to assault an officer and flee the scene. Evidence of an extraneous offense
—6— vli ich shows an accused’s inot ive or intent is admissible, ‘ftx. R. hv in, 404(b): ec Peterson,
$36 SW,2d at 762.
Thus, the introduction of the marijuana evidence was admissible same transaction
contextual evidence because the events and circumstances were clearly intertwined, inseparable
parts of the charged offenses that. if viewed in isolation, would not make sense, See Delgado v.
Stoic’. 235 S.W.3d at 253 .And as coutis have recognized. ‘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 ol that act so they may realistically evaluate the evidence.’ 1(1. at 253 n.36.
Accordingly, the trial court did not abuse its discretion by admitting the evidence. Appellant’s
first issue is overruled,
Court-Ordered Attorney’s Fees
In his second issue, appellant argues the trial court erred by assessing $200in court-
appointed attorney’s fees in cause number F09-41 136-Y. Specifically, he claims the trial court
twice made a finding of indigency before trial and again after trial, which resulted in him
receiving court-appointed attorneys for trial and on appeal. Because there has been no material
change in appellant’s circumstances since his incarceration, he argues the evidence is insufficient
to support an assessment of attorney’s fees. The State responds appellant presumes the
abbreviation ‘APAT” on the criminal court fee docket sheet means attorney’s fees, but it asserts
that without further evidence, this Court may not presume the meaning of the abbreviation.
Therefore, the State argues the $200in fees must stand. We disagree with the State.
Under Texas Code of Criminal Procedure article 26.05, a trial court may order a
convicted defendant to pay the attorney’s fees of his appointed attorney as costs “[i]f the court
determines that a defendant has financial resources that enable him to offset in part or in whole
the costs of the legal services provided.” TEx. CoDE CRIM. PROC. ANN. art. 26.05(a), (g) (West
—7— Supp. 2012). It the trial court has previously determined that the deleiidant is indigent, however.
[IC is “presumed to remain indigent tor the remainder of the proceedings in the case unless a
material chanee in the delendant s financial circumstances occurs.” Id. art. 2.04( p).
lhe State doeS not dispute appellant’s m(ligency. but instead relies on the alleged
insufficiency of the evidence to support the conclusion that “APAT” is an abbreviation for
“appointed attorney” on the criminal court fte docket sheet. Considering the State has conceded
in a previous case that “APAT” stands for “appointed attorney,” we will not allow it to now take
a different position simply because we have nothing in the record before us explaining the
meaning of “APAT.” See, e.g., Garza i’. Slate. No. 05-1 1-01626-CR, 2013 WL 1683612, at *1
n. 1 (Tex. App.---—Dallas Apr. 18, 2013. no pet.) (mern. op.. not designated for publicalion)
(noting parties agreed that “APAT” stands for “appointed attorney”). Moreover, nothing in the
record indicates a material change in appellant’s financial circumstances. Accordingly, the
evidence is insufficient to support the trial court’s assessment of $200in attorney’s fees as part of
appellant’s couil costs. We therefore sustain appellant’s second issue and modify the judgment
in cause number F09-4l 136-Y to delete the amount of $200assessed as attorney’s fees.
Conclusion
After considering appellant’s issues, we modify the judgment in cause number F09-
41 136-Y to delete the $200in court-ordered attorney’s fees, but in all other respects, affirm the
trial court’s judgments.
/Michael J. O’Neill! MICHAEL J. O’NEILL JUSTICE Do Not Publish TEx. R. App. P. 47
12005 7F.U05 —8— ( f 1 t Z\
Q!niirt ni Anah .ifiIi ithitrirt uf t1 Jatta JUDGMENT
LARRY EUGENE FINNEY, Appellant On Appeal from the Criminal District Court No. 7, Dallas County, Texas No. 05-12-00057-CR V. Trial Court Cause No. F09-41 136-Y. Opinion delivered by Justice O’Neill, THE STATE OF TEXAS. Appellee Justices Francis and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED 10 delete $200.00 in court-ordered attorney’s fees.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this day of July. 2013.
/Michael J. O’Neill! MICHAELJ. O’NEILL JUSTICE
—9— Qtiurt Df Appaah Fift1! Jitrirt of ixa Lit t1a11a JUDGMENT
LARRY EUGENE FINNEY, Appellant On Appeal from the Criminal District Court No, 7, Dallas County, Texas No. 05-1 2-00058-CR Trial Court Cause No. Fl 1-00250-Y. Opinion delivered by Justice ONeill, THE STATE OF TEXAS, Appellee Justices Francis and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRi\IED.
Ih 8 Judgment entered this clay of July, 2013.
/Michael J. O’Neill! MICHAEL J. O’NEILL JUSTICE
—10—