Procella, Phillip Rogers v. State

• Court: Court of Appeals of Texas
• Decided: January 17, 2013
• Docket: 05-11-01291-CR
• Status: Published

Opinion

MODIFY and AFFIRM; Opinion issued January 17. 2013.

In The (Cmirt uf ‘pcahi FiftI! tHtrirt uf rxa at Litta No. 05-11-01290-CR No. 05-11-01291-CR

PHILLIP ROGERS PROCELLA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court I)allas County, Texas Trial Court Cause Nos. F10-5 1420-P & F10-54196-P

OPINION Before Justices Murphy and Richter 1 Opinion By Justice Murphy

Phillip Rogers Procella pleaded not guilty to one count of possession with the intent to

deliver between four and 200 grams of cocaine with a deadly weapon in a drug-free zone and one

count of aggravated assault against a public servant with a deadly weapon. See TEx. HEALTH &

SAFETY CODE ANN. § 481.112(d) (West 2010); id. § 481.134(c) (West Supp. 2012); TEx. PENAL CODE ANN. § 22.02(a)(2), (h)(2)(B) (West 2011). After the jury returned a guilty verdict on both

counts, the trial court sentenced Procella to two concurrent terms of forty years in prison. In two

The Honorable Martin E. Richter. Retired Justice, silting by assignment, The Honorable Joseph Morris was on the panel and participated at the submission of this case. Due to his retirement from this Court on December31, 2012, he did not participate in the issuance of this Opinion See TL.x. R. APP. P.41.1(a), (h). points of error. Procella contends the trial court abused its discretion by allowing one of the State’s

witnesses to testify as an expert witness and by admitting photographs showing another persons

tattoos during the punishment phase of trial. In two additional points ol error, Procella asserts the

judgment in each case should be modified to reflect that the trial court assessed his punishment. We

modify the trial court’s judgments as requested and affirm the udgmcnis as moditied.

I. Admission of Expert Witness Testimony

Procellas first point of error relates only to the drug possession case (No. 05—1 1 -01 290—C RL

Procella complains the trial court erred by admitting the testimony of Joel Wasinger because he was

not qualified to testify as an expert about whether the offense occurred within a drug—tree zone. We

review a trial court’s ruling on the admissibility of expert testimony br an abuse of discretion.

Ti//mw, v. State, 354 S.W.3d 425,435 (Tex. Crim. App. 2011); Cob/c v. State, 330 S.W.3d 253, 272

(Tex. Crim. App. 2010). As with other types of evidentiary rulings, we will uphold the trial court’s

decision as long as it lies within the zone of reasonable disagreement. Til/man, 354 S.W.3d at 435.

A. Background

As charged in the indictment, the State was required to prove Procella committed the

possession offense within a drug-free zone—that is, within “1,000 feet of any real property that is

owned, rented or leased to a school.” specifically James Bowie Elementary School. Proof of the

drug-free zone allegation triggers application of health and safety code subsection 481.134(c), which

increases the minimum punishment for the offense by five years and doubles the maximum fine. See

TEX. HEALTH & SAFETY CODE ANN. § 481. 134(c). Subsection 481 .134(c) does not create a separate

offense; its only effect is to raise the penalty when an enumerated olfense is committed in a

designated place. See Willianis i. State, 127 S.W.3d 442. 445 (Tex. App.—Dallas 2004, pet. rcf’d).

—2 As part of its proof that the offense took place within a drugfree zone, the State offered

es.hihit 19A, a “map of the area.’’ which was admitted through another witness without objection.

The exhibit wa’ an aerial photograph showin1 the Iocaton of the oliense at 6 I I N. Marsal is Avenue

outlined in yellow, the location of “Bowie Elementary School” at 330 N. Marsalis Avenue outlined

in green. and a red perimeter line drawn out from the school premises: the location of the olfense

was depicted on the exhibit as within the perimeter. The map included a scale, showing that a one—

inch measurement was the equivalent of a distance of 100 feet.

The State also )1 resented the testimony of Wasinger. the geographic information systems

coordinator for Dallas County Public Works. At a hearing held outside the presence of the jury,

Wasinger testihed his job involves making maps, analyzing geographic data, and managing

geographic-related databases. lie stated he (lid not prepare the drug- free zone map for this case. but

he explained how such maps are created using data from the county appraisal district and mapping

software. Procella objected to Wasinger’s proposed testimony, arguing Wasinger should not be

allowed to give opinion testimony because there was no showing of “sufficient background. training.

Ion preparation for this witness to be held as an expert.” He also argued that Wasinger should not

he allowed to testify because “we do not have betbre us the people that set this up, put in play and

prepare(l for court. The trial court oven’uled the objection and allowed Wasinger’ s testimony to be

presented to the jury.

During his testimony, Wasinger referred to exhibit 49A and testified that the red perimeter

line on the exhibit represented a thousand-foot boundary. 1-Ic explained that the perimeter was “a

product of taking the parcel in the middle, the elementary school, and telling the [mapping j software

we want to go a thousand feet in all directions around it and {the softwarej draws a line.” Wasinger

then simply testified that anything inside the boundary line was within 1 .000 feet of any property

—3— owned by that school. The jury found by special issue that Procella committed the drug of tense

w jib in I ,1 )0() feet ol a school.

B Analysis

In ruling on the admissibility of expert testimony, a trial court must determine that (1) the

expert is qualified as an expert by reason of his knowledge. skill, experience, traimng. or education;

(2) the subject matter of the testimony is an appropriate one for expert testimony: and (3) admitting

the expert testimony will assist the factfinder in deciding the case. S’e Tux. R. EvID. 702; VeIn v.

State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527 (Tex.

Crim. App. 2006). These conditions are commonly referred to as qualification, reliability, and

relevance, VeIn. 209 S.W.3d at 131. The conditions raise distinct questions and issues, and an

objection based on one of the conditions does not preserve error as to another .See Id. (stating

qualifications of expert witness are “distinct from reliability and relevance and, therefore, should he

evaluated independently”); Sliaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston 114th Dist.j

2010. pet. ref’d): Turner i’. Slate. 252 S.W.3d 571. 584 n.5 (Tex. App.—Houston 114th I)ist. I 2008.

pet. rcf’d) (objection based on expert’s qualifications did not preserve reliability issue).

Procella argues on appeal that the trial court abused its discretion by allowing Wasinger to

testify as an expert about the drug-free zone because the trial court failed to conduct a proper inquiry

into whether Wasinger had the necessary qualifications. He also raises an additional argument about

the reliability of Wasinger’s expert opinion, arguing there was no testimony to establish that the data

behind the drug-free zone map was accurate. But the reliability of Wasinger’ s opinion based on “the

data behind the map” was not raised to the trial court: rather Procella’s objection covered

qualification only. Procella’s reliability complaint therefore was not preserved for our review. See

TEx. R. App. P.33.1(a); Vela. 209 S.W.3d at 131; Turner, 252 S.W.3d at 584 n.5.

-4- Regarding his complaint about Wasinger’s qualifications. Procella asserts “there was very

ittl iiiquii S lillo his hR Lu mmd itid Ii niling oi iii it V islngel s b tLLgl ound ss is cenhi ii to (hR

drug-free zone map evidence,” The State responds that the trial court properly exercised its

discretion hecause Wasinger adequately explained his specialized experience with maps and

mapmaking of this type. The State also asserts that because “GIS measuring techniques are known

to the courts to he widely used and are generally considered sufficiently reliable in foundation’ it

is “questionable whether Wasinger was required to testify as an expert” Although the State cites

no Texas case for iii is proposition, we will assume expert testimony was required to assist the jury

in understanding the drug-free zone map. our opinion, however, should not be construed as a

determination on the merits of whether expert testimony is required to show an offense occurred

within a drug-free zone. See, e.g., TEx. HEALTH & SAFETY CODE ANN. § 481 .135(d)(i), (2) (State

may rely “on any other evidence or testimony to establish any element of an offense for which

punishment is increased under Section 481.134,” including using or introducing a map or diagram

admissible un(ler the rules of evidence): Youn,ç’ r. State. 14 S.W.3d 748.754 (Tex. Crim. App. 2000)

(concluding maps produced by city planning department and officer testimony was sufficient forjury

to find offenses occurred within zone; maps were “probative proof’ of drug-free zone boundaries);

Perez r. Staie, 332 S.W.3d 700. 703—04 (Tex. App.—Amarillo 2011. pet. ref’d) (satellite photo

depicting area and testimony of engineer and officers that offense took place within drug-free zone);

Haagensen v. State, 346 S.W.3d 758, 764—65 (Tex. App.—Texarkana 201 1. no pet.) (officer

testimony that drug transaction occurred within zone based on map obtained from city hail and by

using Google Earth).

Under rule 702, a person may be qualified to testify as an expert “by knowledge, skill,

experience. training, or education.” mx. R. EvID. 702. The qualification inquiry involves two parts:

—— whether the witness has a sufficient backruuiid in a particular I ield and whether that background

goes to the very matter on which he will give an opmion. Vela, 209 S,W.3d at 131. “Because the

possible spectrum of education. ‘skill. and training is so wide, a trial court has great discretion in

determining whether a witness POSSeSSeS sufficient qualifications to assist the jury as an expert on

a specihc topic in a particular case.” Rodgers, 205 S.W.3d at 527—28. The focus is on the ‘lit”

between the subject matter at issue and the expert’s familiarity with it. ¼’Ia, 209 S.W.3d at 133.

Was inger testified regarding his background that he has been in the GIS industry for twenty

wars and has spent most of those twenty years analyzing geographic data. He began his career

working for a software company that manufactured a GIS application. He also has taken

independent courses in (]IS and computer science. Wasinger testified he has made several drug-free

zone maps like exhibit 49A. stating “lilt’s something that any of us can do.” He also described the

map-making process, explaining that a drug-free zone map is created on a computer by overlaying

Cartesian planes of latitude and longitude and using plot lines maintained by the county appraisal

district. He described it as a “simple process.” He explained that either he or one of the other GIS

technicians takes the two locations in question. With the school as the center point, and using the

mapping software, a thousand-foot perimeter is drawn around the lines for that piece of property.

The location of the crime then is indicated on the map to see if it lies within the thousand-foot

perimeter. Regarding his specific opinion in this case, Wasinger testified that the distance from the

school grounds to the location of the offense “was less than a thousand feet.”

Wasinger’s familiarity with the mapping software and how drug-free zone maps are created

using the software put context to exhibit 49A. Based on his review of the map, he testified the

offense occurred within the drug-free zone. We conclude the trial court acted within the zone of

reasonable disagreement in determining that Wasinger’s training, education, and experience

—6— regarding nmpinaking and anal viing C IS data qual i lied him to offcr the opinion that Procella

committed the dmg offense within the drug—free zone. Although Procella, on appeal, crIticizes the

accuracy of the underlyini data from which the map was produced. this is 1101 a valid ohjection to

Wasinger’s qualifications. Importantly, Procella did not object to the admission of the map at trial.

Accordingly, we overrule Procella s lirsi point ol error.

IL Admission of Photographs

Procella argues in his second point of error, which relates to both cases, that the trial court

abused its discretion when it admitted three exhibits during the punishment phase of trial. The

challenged exhibits are State’s exhibits 76. 77. and 78, which are photographs of gang-related tattoos

on another person, Keithian Brown, who was found with Procella at the scene of the offenses and

also arrested.

The photographs of Brown’s tattoos were taken during his interview with a police detective

shortly after he was arrested. Exhibit 76 showed a tattoo on Brown’s back depicting the words

“Rolling 60s”: exhibit 77 showed a second tattoo on what appears to be Brown’s arm with the

initials “RSC” presented in Old English script: exhibit 78 is too dark to discern a particular tattoo,

and there was no specific testinlony describing that tattoo. Detective Barrett Nelson, who had spent

fourteen years working with the gang unit of the Dallas Police Depamirnent, testified that the tattoos

shown in the photographs represented a criminal street gang called the “Rolling 60 Crips” based in

the southern Oak Cliff area of Dallas. Procella objected, based on relevance, to the admission of the

photographs and to any testimony about Brown. The trial court overruled Procella’s objections and

stated that it would “only consider the relevant portions of the photographs” and not consider the

testimony if it was “not linked to Mr. Procella in any way.”

Procella argues on appeal that photographs of Brown’s tattoos have no bearing on his cases

—7— and the State was attempt ilig to puwe he as a gang member through the pictures ol gang tattoos

on another person.” He further claims that his forty-year sentence indicates he was “ultimately

pumshed flr I3rown’ s had character,’’

We need not decide, however, whether admission of the photographs of Brown’s tattoos

during the punishment phase was error. Even assuming any error occurred. we conclude such error

did not affect Procella’ s substantial rihts and would have provided nothing more than a slight

influence on the trial court’s punishment determination, if any influence at all, See TEX, R. App. P.

44.2(b) (providing we must disregard any “error, defect. irregularity, or variance that does not affect

substantial rights”). The record before us shows that Procella’s membership in a gang, and

specifically. the Rolling 6() Crips, was not proven through the pictures of Brown’s gang tattoos.

Rather, testimony was admitted without objection to Procella’s own affiliation with the Rolling 60

Crips. Nelson explained during his testimony the various criteria, including self-admission and

tattoos, police use to determine whether someone is a member of a gang. Nelson testified that tattoos

found on members of the “Rolling 60s” are “very prevalent.” When asked to look at the tattoo of

a “60” on the side of Procella’s head. Nelson identified that tattoo as being “very consistent” with

the Rolling 60 Crips. 1-Ic added, “lylou’re not gonna put a 60’ on the side of your head unless

you’re promoting a gang.... To see that, that’s self-admission itself.” Procella got that tattoo while

in jail after being arrested for these offenses. Nelson also testified about the gang’s criminal

activities, which include narcotics, aggravated assault, murders, and car thefts, and provided general

testimony about gang affiliation and the relationship between gang affiliation and drug dealing: he

testified “Itihat’s how gangs survive; they sell narcotics and rob people.” Contrary to Procella’s

assertions that “the Stale focused almost solely on Brown’s gang tattoos,” Nelson’s testimony was

not specific to Brown’s acts or character or otherwise linked to Brown.

—8— Procella (li(i not oblect to Nelson s testimony related to the “60” tattoo on his head or

Nelson’s identification of that tattoo as being consistent with membership in the Rolling 60 Crips.

In closing, Procella’s counsel agreed that the “I g lang niemhership is not good.” Nor did Procella

object to Nelson’s general testimony related to the criminal activities of the RoIling 60 Crips or the

importance of gang life to drug dealing. Under article 37.07 of the Texas Code of Criminal

Procedure, a trial court has broad discretion to admit evidence the court (leems relevant to

sentencing, including evidence of prior crimes, reputation, character, or the circumstance of the

ollense. Tux. CouECRIM. PROc. ANN. art. 37.07 3(a)( I) (West Supp. 2012): Hayden i’. State, 296

S.W.3d 549, 552 (Tex. Crim. App. 2009), Evidence of membership in or affiliation with a gang,

such as the Rolling 60 Crips, would fall under the type of “bad acts” relevant to sentencing, and

article 37.07 allows the introduction of such evidence to show the defendant’s character. See

Beaslev v, State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); Sierra v. State, 266 S.W.3d 72. 79

(Tec App.—Houston jI st Dist.I 2008. pet. ref’d); see also Ho ‘L.StQte, 171 S.W.3d 295.305 (Tex.

App.—l-louston 114th Dist. 2005, pet. ref’d) (“Even if appellant was no longer affiliated with the

gang at the time of the shooting. evidence that he was a gang member is relevant—and thus

admissible at punishment—because it relates to his character.”).

The trial court had before it evidence of Procella’s own gang membership and evidence of

that gang’s character and reputation. as well as other testimony, upon which to base its punishment

determination. See Doris i’. State, 329 S.W.3d 798, 805 (Tex. Crim. App. 2010); Beasley, 902

S.W.2d at 456—57 (“evidence concerning appellant’s gang membership is relevant because it relates

to his character” and noting that it is not necessary to link the accused to the bad acts generally

engaged in by gang members). ThUS. even if it was error to admit the photographs showing tattoos

on another person, we conclude that error did not have a substantial effect or otherwise influence the

—9— 1 na! cc nut s decision about the appropriate punishment for Procella. We overrule Procella’ s second

p( )iflt Of CII’. r.

III. Modification of the Judgments

in ii is two remaining points ol error. Proud Ia asks this Court to modify the trial court’s

written judgments to reflect that the trial court, not the jury. assessed Procella’s punishment in each

case. The State agrees the judgments should be modified in the manner Procella requests. The

judgment in each case incorrectly recites that Procella’ s punishment was assessed by the “Jury.” The

clerk’s record for each case, however, contains an election of punishment. in which Procella requests

that the judge assess his punishment in the event the jury finds him guilty. In addition, the reporter’s

record shows that the trial court asked Procella if he understood that he elected to have the judge set

punishment rather than the jury; Procella indicated he understood his election.

This Court has the power to correct a clerical error on a judgment to reflect what occurred

in the trial court. as shown by the record. See TEX. R. Api. P. 43.2(b); Biglev v.Staie, 865 S.W.2d

26. 27—28 (Tex. Crim. App. 1993: Asberrv i.. State. 813 S.W.2d 526. 529 (Tex. App.—Dallas 1991,

pet. ref’d) (en hanc). We therefore sustain Procella’s third and fourth points of error and modify the

judgment in each case to reflect that Procella’s punishment was assessed by the trial court.

We affirm the trial court’s judgments as modified.

I I .1 I.I I / / i.

MARY MPHY (J JUSTICE

Do Not Publish TEx. R. App. P.47

11 1290F.U05

—10— !Initrt ni Fi1tI! Ditrir1 nf axa at 1tlla

JUDGMENT PHILLJP ROGERS PROCELLA, Appellant Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 05 I 10I 290CR V. F10-5 l420P). Opinion (lelivered by Justice Murphy, THE STATE OF TEXAS. Appellee Justice Richter participating.

Based on the Court’s opinion of this date, the trial court’s judgment is NiOI)IFIEI) as follows:

The “Punishmem Assessed by” is modified to read: “Court.”

As modified, the judgment of the trial court is AFFIRMED.

Judgment entered January 17, 2013.

MARY MPHY I JUSTICE Qtnirl if ia15 *iftli Jistrirt uf Lixu it tI11tai?i JUDGMENT PHILII P ROGERS PROCELLA, Appellant Appeal from the 203rd Judicial District Court of Dallas County, Texas. (TrCLNo. No. 051 L0l291CR V. Fl054l96P). Opinion delivered by Just ice Murphy. TIlE STATE OF TEXAS, Appellee Justice Richter participating.

Based on the Court’s opinion of this date. the trial Courts judgment is MOflIFIED as follows:

The “I->unishment Assessed by” is modified to read: “Court.”

, I / ‘

MARY MUHY JUSTICE v ( ‘1 J