James Edward Hunter v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 16, 2022
• Docket: 09-20-00110-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________ NO. 09-20-00110-CR ________________

JAMES EDWARD HUNTER, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 19-04-05627-CR ________________________________________________________________________

MEMORANDUM OPINION

A Montgomery County grand jury indicted James Edward Hunter for

possession with intent to deliver a controlled substance, methamphetamine, in an

amount greater than four grams but less than 200 grams. See Tex. Health & Safety

Code Ann. § 481.112(d). The indictment included one felony enhancement, and the

State later filed a notice of a second felony enhancement. The jury convicted Hunter

of the first-degree felony offense, found both enhancements true, and assessed

1 punishment at thirty years of confinement in the Texas Department of Criminal

Justice, Institutional Division. In two issues, Hunter complains the trial court

erroneously admitted extraneous-offense evidence. We overrule both issues and

affirm the trial court’s judgment.

I. Background

The evidence established that Deputy Trevor Potter with the Precinct 4

Constable’s Office in Montgomery County worked as a “specialist on a narcotics

tact unit[.]” Potter created an online Facebook alias and began communicating with

Amanda Johnson. Deputy Potter explained that he created a Facebook post

indicating he was looking for narcotics, and Johnson responded to the post. Deputy

Potter and Johnson then began communicating about narcotics and pills. According

to Potter, Johnson was trying to sell pills, but he “was looking for the harder drugs,”

like “methamphetamine, cocaine, heroin, Ecstasy, [and] LSD[.]” Deputy Potter

contacted Johnson about obtaining methamphetamine. Johnson, in turn, contacted

Hunter less than a minute later and relayed she had “a guy that wants a ball[.]”1, 2

Hunter responded to Johnson’s Facebook message confirming the price of the ball.

Johnson and Potter then arranged to meet at a certain location for the transaction.

1 Hunter and Johnson had an intimate relationship, but Hunter did not consider Johnson his “girlfriend.” 2 The evidence established that a “ball” of methamphetamine was usually about 3.5 grams. 2 Potter did not have any contact with Hunter prior to the transaction, but both Hunter

and Johnson arrived at the meeting location in the same vehicle with Hunter driving.

Upon their arrest, officers located methamphetamine in the driver’s seat where

Hunter had been seated.

A. Voir Dire

During voir dire, the defense questioned the panel about being “in the wrong

place at the wrong time.” The defense asked the panel if they had ever been in the

wrong place at the wrong time and if that meant they committed a crime.

B. Defense’s Opening Statement

During opening, the defense argued that Hunter “was giving Amanda a ride

to do a drug deal[,]” but there was “no evidence showing that he was the supplier of

this methamphetamine.” The defense argued that another individual named “James”

who was “a known drug dealer,” was “the dealer and not Mr. Hunter.”

C. Trial and Defense’s Cross-Examination

Deputy Potter testified that on April 16, 2019, Johnson messaged him, and

between April 16 and April 18, 2019, they “were messaging back and forth… about

narcotics.” Potter explained that the conversation started with Johnson asking him if

he knew anyone looking for “narcos,” a term for “pills,” and moved from there to

Johnson asking Potter if he “needed work, [which] is a street term for

methamphetamine.” Potter testified, and Facebook records admitted at trial showed

3 that Johnson told him she had “bars” or Xanax, but she could get the “work” or

methamphetamine, which meant she had access to someone who had

methamphetamine. He explained that a “ball” was 3.5 grams of methamphetamine.

Evidence showed that Potter and Johnson discussed him purchasing

methamphetamine on April 17, 2019. Likewise, the Facebook message evidence

established that on the same date, within thirty seconds of Potter’s request for a ball,

Johnson communicated with Hunter inquiring about methamphetamine and pricing,

and indicated that she had a customer who wanted “a ball.” Hunter responded to

Johnson that he could supply the desired amount.

Potter testified they messaged on April 18, 2019, and he asked Johnson how

much for a “ball” or 3.5 grams of meth. Johnson responded and told Potter a ball

will cost $80, the same price Hunter confirmed the previous day. Potter testified that

Johnson noted on the way to the transaction that the dealer was “geeked out” which

meant he was strung out on drugs, probably meth, and he had been up for too many

days.

On the way to meet Potter, Johnson messaged him that she was supplying the

“bars” or Xanax, and the guy with her was supplying the “clear,” which testimony

established was slang for methamphetamine. Upon identifying Johnson at the

meeting location based on the description of the vehicle she provided to Potter,

officers approached the vehicle and had Hunter and Johnson exit at gunpoint. Video

4 evidence of the arrest showed Hunter in the driver’s seat, and testimony established

officers found a baggie with a clear, rock-like substance that a DPS forensic scientist

later determined to be methamphetamine weighing 4.75 grams.

At trial, the defense’s line of questioning during cross-examination attempted

to show that Johnson could have thrown the baggie in Hunter’s seat while officers

had him exit the vehicle. However, the video showed that Deputy Potter had a

weapon trained on Johnson, and she already had her hands up before Hunter left the

vehicle. On cross-examination, the following exchanges occurred between defense

counsel and Deputy Potter:

Q. Okay. And there’s certain things that dealers typically carry around with them; is that a fair statement? A. Yes, sir. Q. Things like baggies, right? A. Yes, sir. Q. Things like scales, right? A. Yes, sir. Q. And high-level drug dealers, I mean, ones that are dealing a lot, they are usually packing, aren’t they? A. Most of the time. Q. Okay. Now, with regard to Mr. Hunter, you didn’t find any baggies, did you? A. No, sir. Q. You didn’t find any scales, did you? A. No, sir. Q. And certainly no weapons? A. No, sir.

...

Q. Now, once you found out who James was, did you ever get a warrant and go search where he lived? 5 A. No, sir. Q. So you don’t know what he had there? A. No, sir. Q. You didn’t go back there and see if he had a lab? A. No, sir. Q. That he had any guns? A. No, sir. Q. That he had any [b]aggies? A. No, sir. Q. That he had any scales? A. No, sir. Q. So how the heck do you know he’s a dealer? A. Well, from her identifying him as the one that was bringing the clear, and the clear being on his side of the car. Q. And Amanda Johnson is a dealer in Xanax bars, right? A. Yes, sir.

Detective Eric Prado with the Criminal Investigation Division (CID) in the

Precinct 4 Montgomery County Constable’s Office testified next. One of the

warrants he obtained in this case was for Amanda Johnson’s Facebook records.

Detective Prado testified the records showed a conversation between Hunter and

Johnson on April 17, 2019, where Johnson says, “I have a guy that wants a ball[.]

… $80?” Prado explained Johnson was asking about the cost of the ball. Prado

confirmed that Hunter responded with “Yes[.] … That’s fine. I got that . . . Can you

come to me?” and explained that Hunter asked if the person who wanted the ball

was mobile and could pick it up. Prado also testified that Hunter confirmed he had

the amount of narcotics Johnson requested. Prado testified Hunter was aware a

narcotics transaction was occurring, because “[i]t confirms that he has the amount

6 which is a ball and the cost of it, he confirms on the cost. And then asks if the

individual can go and get it from him.”

D. Admission of Extraneous-Offense Evidence

The evidence the State offered during Detective Prado’s testimony and the

trial court admitted over Appellant’s objection are Hunter’s text messages regarding

methamphetamine transactions dating back to April 7, 2019, to unknown

individuals.3 The messages used slang for methamphetamine, units of measuring

methamphetamine, and discussed pricing.

II. Standard of Review

We review a trial court’s decision on the admission of evidence under Rule

404(b) for an abuse of discretion. See Dabney v. State, 492 S.W.3d 309, 318 (Tex.

Crim. App. 2016); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

“The trial court’s ruling on whether extraneous-offense evidence was admissible to

rebut a defensive theory should be upheld if it is within the zone of reasonable

disagreement.” Dabney, 492 S.W.3d at 318. A trial court’s ruling is generally

considered to fall within this zone if the evidence establishes “1) an extraneous

transaction is relevant to a material, non-propensity issue, and 2) the probative value

of that evidence is not substantially outweighed by the danger of unfair prejudice,

3 The specific references in Hunter’s brief pertain to State’s exhibits 22, 26, 27, and 29. 7 confusion of the issues, or misleading of the jury.” De La Paz, 279 S.W.3d at 344.

If a trial court’s evidentiary ruling is correct under any applicable theory of law, we

do not disturb it even if the trial judge articulates an incorrect reason for the correct

ruling. See id.

III. Analysis

Hunter complains regarding the admission of his text messages discussing

methamphetamine sales dating back to April 7, 2019, during the guilt/innocence

phase of the trial. In his first issue, Hunter complains their admission was in violation

of Texas Rule of Evidence 404(b), and in his second issue, he complains the

probative value of the evidence is substantially outweighed by its unfair prejudice

under Rule 403.

A. Rule 404

Generally, evidence of a crime, wrong, or other act is inadmissible to show

bad character and that a defendant acted in conformity with that bad character. See

Tex. R. Evid. 404(b)(1). However, extraneous-offense evidence may be admissible

for other purposes, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident. See id. 404(b)(2);

Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Extraneous-offense

evidence is also admissible to rebut a defensive theory. See Moses, 105 S.W.3d at

626 n.4 (noting such evidence is often admitted to rebut a defensive theory). “A

8 defensive theory may be raised through voir dire, opening statements, or cross-

examination.” Donald v. State, 543 S.W.3d 466, 482 (Tex. App.—Houston [14th

Dist.] 2018, no pet.); see also Dabney, 492 S.W.3d at 318 (opening statements and

voir dire); Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (opening

statement); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1996) (op. on

reh’g) (cross-examination).

The trial court determined the defense “opened the door” to the admission of

Hunter’s text messages with unidentified individuals earlier in the same month as

the charged crime discussing Hunter’s involvement with other drug transactions. We

agree. Hunter put forth at least two defensive theories: (1) that he was in the wrong

place at the wrong time, specifically that he just gave Johnson a ride and Johnson

was the dealer who had another supplier in this transaction instead of Hunter; and

(2) that Hunter was a drug user, but not a dealer. Upon its initial cross-examination

of the deputy constable, the defense attempted to elicit testimony regarding

generalities and typical behaviors of drug dealers, including possessing scales,

baggies, and weapons. The defense then further questioned the deputy about whether

the State saw any evidence of these things and specifically asked the deputy how

they knew Hunter was a dealer in the absence of these items. This line of questioning

permitted the admission of the extraneous offense evidence to rebut the defensive

theories that Hunter was not a drug dealer, was simply in the wrong place at the

9 wrong time, and another “James” was the methamphetamine supplier. See Dabney,

492 S.W.3d at 318; Moses, 105 S.W.3d at 626 n.4; Ransom, 920 S.W.2d at 301.

Further, the trial court could have reasonably determined this evidence showed

Hunter’s knowledge and intent for being in the vehicle at the time of arrest, contrary

to his assertion he was just giving Johnson a ride. Because the admission of this

evidence to rebut a defensive theory fell “within the zone of reasonable

disagreement[,]” we overrule this issue. See Dabney, 492 S.W.3d at 318.

B. Rule 403

Even if extraneous-offense evidence is admissible for some other purpose

apart from showing character conformity, the trial court may still exclude the

evidence if the probative value is substantially outweighed by the risk of unfair

prejudice. See Tex. R. Evid. 403; see also Moses, 105 S.W.3d at 626. “Rule 403

favors the admission of relevant evidence and carries a presumption that relevant

evidence will be more probative than prejudicial.” Davis v. State, 329 S.W.3d 798,

806 (Tex. Crim. App. 2010). We perform a Rule 403 analysis balancing the

following factors:

(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 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

10 consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (footnote

omitted).

As to the first two factors, the complained-of evidence directly rebutted the

defensive theory that Hunter did not behave like a typical dealer nor possess typical

dealer items, so he was merely a user and not a dealer. See Garner v. State, No. 09-

15-00317-CR, 2017 WL 3298225, at *3 (Tex. App.—Beaumont Aug. 2, 2017, no

pet.) (mem. op., not designated for publication) (concluding extraneous offenses

were probative of whether the defendant was a drug dealer, as opposed to a mere

consumer of methamphetamine). The evidence further tended to show Hunter’s

knowledge of drug transactions, his intent for being in the vehicle with Johnson at

the time and place of the arrest, and whether he was “in the wrong place at the wrong

time.” To rebut the defense’s theories, the State had a need for the evidence to show

Hunter was more than a marginal participant in the drug trade, more than only a user,

and this was not a case of mistaken identity. See Houston v. State, 208 S.W.3d 585,

591 (Tex. App.—Austin 2006, no pet.) (concluding extraneous offense evidence of

a subsequent drug transaction was properly admitted to rebut any false impression

created during defense’s cross-examination that defendant was “only a marginal

participant in the drug trade”). We conclude these factors weigh in favor of

admission of the evidence.

11 Although there may have been some chance the evidence would impress the

jury in some irrational way, the fact that the complained-of messages occurred less

than two weeks before the drug transaction at issue and discussed the sale of

methamphetamine in similar amounts, and the trial court included an instruction in

the court’s charge limiting the scope, the risk was likely reduced.4 See Majors v.

State, 554 S.W.3d 802, 809 (Tex. App.—Waco 2018, no pet.) (citing Gamboa v.

State, 296, S.W.3d 574, 580 (Tex. Crim. App. 2009)) (presuming jury followed the

trial court’s instruction regarding limited purpose of evidence’s admissibility and

nothing in the record indicated it impressed the jury in an irrational yet indelible

way). This factor weighs in favor of admissibility.

4 The jury charge contained the following instruction: You are further instructed that if there is any evidence before you in this case regarding the Defendant’s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offense or offenses, if any. You are instructed that evidence of crimes, wrongs or acts other than what is alleged in the indictment[] is not admissible to prove the character of the Defendant in order to show action in conformity with that character, as proof he is guilty of the offenses charged in the indictment[]. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident of the Defendant, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident of the Defendant, if any, in connection with the offense alleged against him in the indictment, and for no other purpose. 12 Despite Hunter’s complaint to the contrary, the evidence did not require an

inordinate amount of time to develop.5 This factor again weighs in favor of its

admissibility.

On balance, we conclude there is not a “clear disparity” between the

prejudicial impact of the evidence and its probative value. See Hammer v. State, 296

S.W.3d 555, 568 (Tex. Crim. App. 2009) (citations omitted). The trial court’s

admission of the text messages fell within the zone of reasonable disagreement and

therefore, did not constitute an abuse of discretion. See Wheeler v. State, 67 S.W.3d

879, 889 (Tex. Crim. App. 2002) (weighing 403 factors and concluding evidence of

extraneous offense was relevant and probative value not substantially outweighed

by danger of unfair prejudice). We overrule this issue.

IV. Conclusion

Having determined that the trial court did not abuse its discretion by admitting

the complained-of extraneous offense evidence, we affirm the trial court’s judgment.

AFFIRMED.

________________________________ CHARLES KREGER Justice

5 The testimony regarding this evidence spanned approximately thirteen pages in the reporter’s record. 13 Submitted on December 21, 2021 Opinion Delivered March 16, 2022 Do Not Publish

Before Golemon, C.J., Kreger and Horton, JJ.