Joseph Anthony Robles v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2000
• Docket: 03-99-00607-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-99-00607-CR Joseph Anthony Robles, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 8674, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING

A jury convicted Joseph Anthony Robles of possession of a controlled substance and assessed confinement in the Texas Department of Criminal Justice Institutional Division for a term of fifteen years. See Tex. Health & Safety Code Ann. § 481.116(d) (West Supp. 2000). Robles raises two issues on appeal. We will affirm.

Factual Background

On September 22, 1998, a Burnet Police Department patrol officer stopped Robles's vehicle after the vehicle failed to dim its highbeam lights to approaching traffic and weaved within its lane. The officer also noted that the vehicle was coming from a part of town where there are a number of bars. Suspecting that the driver was intoxicated, the officer activated his flashing lights. Robles did not immediately stop but continued driving into a residential driveway of a known drug dealer's house. Once stopped, Robles exited his car and met the officer in front of the parol car. Robles's passenger, Sam Hill, remained in the front passenger seat. Because the officer saw Hill move around and look over his shoulder, the officer approached the driver's side of the car and observed inside the vehicle two alcoholic beverage bottles and a clear plastic bag containing a white powdery substance.

After another officer arrived, the officers handcuffed both Hill and Robles and placed them in separate patrol cars. After a field test indicated the white powdery substance was cocaine, a canine unit was called. The dog alerted to additional controlled substances in the car. Both Robles and Hill were charged with possession of cocaine with intent to distribute. The jury found Robles guilty of possession of a controlled substance. Robles raises two issues on appeal.

Discussion

Juror Misconduct

After his conviction, Robles discovered that a former law enforcement officer, Billy Dean Ivy, served as a juror. Robles filed a motion for new trial asserting juror misconduct. Robles argues that because Ivy failed to respond to questions during voir dire concerning law enforcement service, Robles was denied the right to diligently exercise his peremptory challenges and therefore, did not receive a fair trial.

The juror information card completed by Ivy inquired about prior law enforcement experience. According to his testimony at the motion for new trial, Ivy indicated "yes" on the card requesting information about prior law enforcement experience. During voir dire, Robles's counsel asked, "Is there anybody here who has a relative or close friend or they themselves are involved in law enforcement?" (Emphasis added.) Ivy is a retired chief of police and did not respond to the question. Robles argues that Ivy's failure to respond constituted an affirmative misrepresentation.

When jury misconduct is raised in a motion for new trial, whether misconduct occurred is a decision for the trial court which will not be disturbed on appeal absent an abuse of discretion. Short v. State, 995 S.W.2d 948, 954 (Tex. App.--Fort Worth 1999, pet. ref'd). A movant for new trial based on jury misconduct must show that the misconduct occurred and that the misconduct resulted in harm to the movant. See Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981). The trial court is the sole judge of the credibility of the testifying jurors. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). In the absence of pertinent findings, we must view the evidence adduced at the hearing in the light most favorable to the trial court's ruling. Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997).

We conclude the trial court did not abuse its discretion in denying the motion for new trial. Defense counsel is obligated to ask questions calculated to bring out information that could indicate a juror's inability to be impartial and truthful. Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980). Unless defense counsel asks such questions, the material information which a juror fails to disclose is not "withheld." Armstrong v. State, 897 S.W.2d 361, 364 (Tex. Crim. App. 1995) (citing Jones, 596 S.W.2d at 137).

Ivy affirmatively identified his prior law enforcement involvement when he completed his juror information card. No evidence suggests Robles did not have the juror information cards when conducting voir dire. Robles was on notice of Ivy's law enforcement involvement and could have pursued that line of questioning with him if he so desired. The question asked regarding current law enforcement did not apply to Ivy. Therefore, Ivy did not withhold information and did not engage in misconduct. We conclude the trial court properly denied the motion for new trial. We overrule Robles's first issue.

Admission of Extraneous Offense During Guilt-Innocense Phase

In his second issue, Robles argues that the trial court erred by allowing the State to present evidence in rebuttal of an extraneous offense during the guilt-innocence phase of the trial. Robles presented the testimony of Sam Hill to disprove Robles's intent and knowledge of the existence of controlled substances. Hill testified that he pleaded guilty to possession of a controlled substance with intent to deliver as a result of his arrest on September 22, 1998. He testified, however, that cocaine was not in the vehicle when he and Robles were arrested. He also testified that he did not know the source of the bottles of alcoholic beverages or the cocaine found in the car. The State then sought to question Hill about a previous arrest of Robles and Hill pursuant to Rule of Evidence 404(b). Over Robles's objection, the trial court permitted the State to prove the extraneous transaction.

An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging documents. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996). The State may present rebuttal evidence that tends to refute a defensive theory. Easley v. State, 978 S.W.2d 244, 251 (Tex. App.--Texarkana 1998, pet. ref'd). The possibility that the rebuttal evidence may encompass extraneous offenses or acts of the defendant does not preclude its admission. Id. An extraneous offense may be admissible if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh'g). Evidence which logically serves such purpose as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" is relevant beyond its tendency to prove conformity to character. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387 (op. on reh'g).

Whether evidence of an extraneous offense is relevant apart from character conformity is a question for the trial court. Montgomery, 810 S.W.2d at 391 (op. on reh'g). The trial court must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence. Id. On appeal, we may not reverse a trial court whose ruling on an evidentiary matter was within the zone of reasonable disagreement. Id. We review not only the relevance of the evidence but also the State's need for it as well. Id. at 392. We will reverse only for an abuse of discretion. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

Robles raised the issue of his lack of knowledge or intent regarding the existence of the controlled substances through Hill's testimony. Hill denied that there were controlled substances in the vehicle when he and Robles were stopped. The State was then entitled to offer rebuttal evidence which went directly to this defensive theory. The State presented evidence of another incident involving Hill and Robles and the presence of controlled substances. The State offered the testimony of two Marble Falls police officers who had previously found Robles and Hill in the possession of controlled substances. An officer testified that he observed Robles and Hill driving into a retirement center parking lot on June 12, 1998. When the two saw the officer they acted nervous and fled on foot. The officer found bags of marijuana under the vehicle Hill had been driving and in which Robles had been a passenger. When the officers apprehended Robles he had over $300 in cash in his pocket.

By presenting evidence that no cocaine was present in the vehicle when they were stopped, Robles put the issues of knowledge and intent in issue. A similar offense tends to show Robles's intent to possess controlled substances and his knowledge that such possession is illegal. See Powell v. State, 5 S.W.3d 369, 383 (Tex. App.--Texarkana 1999, pet. ref'd), cert. denied, ___ U.S. ___, 120 S. Ct. 1976 (2000). We believe the trial court could have reasonably concluded that the extraneous conduct tended to make more probable the allegation that Robles possessed a controlled substance in the present offense. We overrule Robles's second issue.

Conclusion

Having overruled each of Robles's issues, we affirm the trial court judgment.

J. Woodfin Jones, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: August 31, 2000

Do Not Publish

nse during the guilt-innocence phase of the trial. Robles presented the testimony of Sam Hill to disprove Robles's intent and knowledge of the existence of controlled substances. Hill testified that he pleaded guilty to possession of a controlled substance with intent to deliver as a result of his arrest on September 22, 1998. He testified, however, that cocaine was not in the vehicle when he and Robles were arrested. He also testified that he did not know the source of the bottles of alcoholic beverages or the cocaine found in the car. The State then sought to question Hill about a previous arrest of Robles and Hill pursuant to Rule of Evidence 404(b). Over Robles's objection, the trial court permitted the State to prove the extraneous transaction.

An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging documents. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996). The State may present rebuttal evidence that tends to refute a defensive theory. Easley v. State, 978 S.W.2d 244, 251 (Tex. App.--Texarkana 1998, pet. ref'd). The possibility that the rebuttal evidence may encompass extraneous offenses or acts of the defendant does not preclude its admission. Id. An extraneous offense may be admissible if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh'g). Evidence which logically serves such purpose as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" is relevant beyond its tendency to prove conformity to character. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387 (op. on reh'g).

Whether evidence of an extraneous offense is relevant apart from character conformity is a question for the trial court. Montgomery, 810 S.W.2d at 391 (op. on reh'g). The trial court must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence. Id. On appeal, we may not reverse a trial court whose ruling on an evidentiary matter was within the zone of reasonable disagreement. Id. We review not only the relevance of the evidence but also the State's need for it as well. Id. at 392. We will reverse only for an abuse of discretion. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

Robles raised the issue of his lack of knowledge or intent regarding the existence of the controlled substances through Hill's testimony. Hill denied that there were controlled substances in the vehicle when he and Robles were stopped. The State was then entitled to offer rebuttal evidence which went directly to this defensive theory. The State presented evidence of another incident involving Hill and Robles and the presence of controlled substances. The State offered the testimony of two Marble Falls police officers who had previously found Robles and Hill in the possession of controlled su