Saenz v. State

843 S.W.2d 24, 1992 Tex. Crim. App. LEXIS 215, 1992 WL 341553

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was charged by indictment with the offense of possession of less that 28 grams of cocaine, alleged to have occurred on or about November 26,1985. On September 18, 1986 in the 177th Judicial District Court of Harris County, appellant was found guilty by a jury and sentenced by the court to “eight years confinement in the state penitentiary.”¹ We granted appellant’s sole ground for review which averred, “The Court of Appeals erred in holding that the admission of testimony about an uncharged sale of cocaine at a location different from the location where the offense charged occurred was not an extraneous offense, and thus finding it admissible.”

I.

SUMMARY OF PERTINENT FACTS

The record reveals that on November 26, 1985, officers of the Pasadena Police Department executed a search warrant at a particular apartment. Appellant had been observed previously entering and exiting that apartment. On the day that the warrant was executed, he was also observed entering and exiting the apartment. He was shortly thereafter stopped and taken into custody on a driveway at the complex and returned to the apartment where the warrant was being executed. When he was arrested, certain currency was recovered from his pocket. At that apartment a substance determined to be cocaine was discovered. Also, a Houston Lighting & Power Company bill and a Texas Vehicle Registration were found there, both of which were addressed to appellant, but at two different addresses in La Porte, Texas.

Testimony indicated that the currency recovered from appellant belonged to the Pasadena Police Department. This money had been given “to a subject” earlier that same day. The testifying officer had last seen the money “less than an hour” before appellant was arrested and the money recovered. That this was the same money was verified by comparing it to previously made photocopies. The officer also testified that he “recovered a quarter ounce of cocaine.” It is very unclear from whom or from where this quarter ounce was recovered.² An exhibit was later marked and identified as “a quarter ounce of cocaine” but no testimony ever specifically described wherefrom it came, nor was it ever actually introduced into evidence.³ Appellant vigorously and repeatedly objected to the above-described testimony regarding the money based upon such being collateral extraneous matter, extraneous offenses, and that the prejudicial effect would outweigh any probative value. He even sought and received “a running objection to [that] line of testimony.”

II.

APPELLANT’S CLAIM

Appellant claims on appeal that the above-described testimony indicated that prior to his arrest he had met with “the subject” and somehow acquired marked police money while “the subject” acquired cocaine and that such was inadmissible extraneous offense evidence, specifically of a prior drug purchase/sale. The State responded that the recovery of the money from appellant does not, in and of itself, constitute evidence of an extraneous offense, and if the recovery of such money is not connected to an extraneous offense then such is an irrelevant detail which is neither probative of any issue in the case nor prejudicial to appellant. The State also claims that appellant’s sale of cocaine to an undercover agent a short time before the execution of the search warrant would seem to irrefutably link appellant to the contraband found in the apartment, thus such evidence was admissible and the trial court erred in limiting the testimony to vague references of “marked” money rather than permitting the State to introduce every detail of the extraneous drug sale.

The Fourteenth Court of Appeals disagreed with appellant’s extraneous offense claim. Fernandez Saenz v. State, 802 S.W.2d 765, 766 (Tex.App. — Houston [14th Dist.] 1990). It held that the trial court did not err in admitting the evidence, ostensibly because such was “probative evidence linking appellant to the contraband found in the apartment.” Id. at 767.

III.

EXTRANEOUS OFFENSE ANALYSIS

In Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991) (Opinion on Rehearing), we recently explicitly detailed the proper analysis of extraneous offense evidence, at both the trial and appellate levels, per Article IV of the Texas Rules of Criminal Evidence.⁴ Without belaboring the canons explicated in Montgomery, suffice it to say that after appropriate objections, to be admissible, extraneous offense evidence must be relevant apart from supporting an inference of character conformity and such evidence’s probative value must not be substantially outweighed by the danger of unfair prejudice or other negative attributes (e.g. confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence). We review a trial court’s actions regarding the admissibility of such evidence under an abuse of discretion standard.

Appellant’s above-noted objections were quite sufficient to properly bring his complaint to the trial court’s attention. The record does not reflect that there was any discussion or argument by the State in favor of the challenged evidence, although as the witness first mentioned recovering money, appellant requested a bench conference, whereupon an unrecited “[o]ff-the-record discussion” took place. The trial court simply overruled appellant’s objections.⁵

Appellant’s complaint relates to “testimony about an uncharged sale of cocaine at a location different from the location where the offense charged occurred;” i.e. that appellant’s possession of “marked” money coupled with the testimony about the recovery of the mysterious “quarter ounce of cocaine” insinuated that he had acquired that money by somehow being involved in a cocaine sale. The State now claims that such an inference was properly placed in evidence before the jury to prove the requisite affirmative link to the contraband recovered in the apartment. As such an inference could certainly logically provide such a link, we conclude that by reasonable perception of logic and common experience the trial court could have reasonably concluded that the challenged evidence served some purpose other than character conformity; therefore there was no abuse of discretion in finding such. Montgomery v. State, 810 S.W.2d at 391; Tex.R.Crim.Evid. 404(b). So after concluding that there was no error in the trial court’s implied finding that the challenged evidence had relevance apart from character conformity, we must now decide whether there was any abuse of discretion in admitting the evidence in light of appellant’s objection “that the prejudicial effect would outweigh any probative value.”

We have stated that evidence of other crimes, wrongs, or acts may create “unfair prejudice” if under the circumstances a jury would be more likely to draw an impermissible character conformity inference than the permissible inference for which the evidence is relevant, or if it otherwise distracts the jury from the specifically charged offense and invites them to convict on a moral or emotional basis rather than as a reasoned response to the relevant evidence. Montgomery v. State, 810 S.W.2d at 395. We must also make an inquiry into the State’s need for the evidence. Id.

The State claims that it needed the evidence to provide an affirmative link between appellant and the cocaine found in the apartment. The record reflects that the previously mentioned vehicle registration and electric service bill indicate out-of-town addresses for appellant, though both appear to be for periods prior to November of 1985.⁶ The cocaine was recovered from the same bedroom as were the registration and electric service bill. The cocaine was found in several small clear plastic bags in a quantity of “residue and small amounts of white powder.” The lab report and examination sheet indicate that the total combined weight of the cocaine recovered in the apartment was .30016 grams. (These were in separate quantities of .2308, .0686, .00007, .00009, and .00060 grams respectively.)⁷ Drug paraphernalia, specifically hemostats, pipes, plastic glass, and a cigarette roller, was also found in the apartment. Some of the paraphernalia was recovered in the previously mentioned bedroom while some was found in the living room area. Additionally, a straw, funnel, glass tube, and razor blades, all of which contained white powder residue, were recovered from “various parts of the [previously mentioned] bedroom and the living room.” A set of weights to a scale was also recovered. The officer testified that the above-described paraphernalia was not examined and tested for fingerprints.

The officer admitted that he did not know how long the cocaine had been in the apartment or who had brought it there. He also admitted that he had never seen appellant in any bedroom in the apartment nor in possession of or using any of the paraphernalia. He did testify that he had observed appellant at that apartment “probably four or five times” during surveillance and saw him entering it “maybe two or three times,” and on at least one occasion using a key. He also testified that a woman and a two-year-old boy were present during the search, and that that woman and another woman who was not present were named on the lease agreement for that apartment. As stated previously appellant was arrested outside the apartment.

We observe that the probative value of the complained of testimony, i.e. that re garding appellant’s possession of the “marked” money, was rather low, particularly in light of the fact that the State never did explicitly connect appellant to a drug sale. As appellant avers, it appears that that connection was made by way of innuendo in that appellant possessed the “marked” money which was somehow related to the previously mentioned “quarter ounce of cocaine” which was recovered from parts unknown. While this innuendo evidence could logically provide an affirmative link between appellant and the cocaine found at the apartment, such link would be quite tenuous, and such was not very probative of whether appellant intentionally or knowingly possessed the cocaine found at the apartment. We therefore conclude that said evidence as presented had a very low probative value.

It goes without saying that insinuated involvement in an exchange of money involving a “quarter ounce of cocaine” would be prejudicial to a person standing trial for possession of a controlled substance. Such prejudice would appear to envelop the accused regardless of the degree of specificity to which it was proven that he was involved in such a transaction. If there was no clear showing of the accused’s involvement in such, it could be said that such prejudice was unfair. We conclude that the State’s use of the challenged evidence without specifically connecting appellant to the inferred drug sale was unfairly prejudicial.

We also consider whether there was confusion of the issues or misleading of the jury in admitting the challenged evidence. We observe that there does appear to have been quite a bit of confusion engendered by the admission of the challenged evidence and the circumstances of appellant’s acquisition of the “marked” money were never explained. The prosecutor evidenced some confusion in that she argued to the jury that appellant had cocaine “on him,” yet the primary thrust of her arguments was that appellant was affirmatively linked to the cocaine found in the apartment. We also observe that the court of appeals’ majority opinion at one point construed the evidence such that it indicated that the “quarter ounce of cocaine” was recovered from the anonymous “subject,” yet later held that there was no error in allowing the State to argue that such was recovered from appellant. Fernandez Saenz v. State, 802 S.W.2d at 766 and 768. This confusion surrounding the challenged “marked” money evidence did have a tendency to mislead the jury.

Where relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the challenged evidence, we must declare that the trial court erred in failing to exclude it. Montgomery v. State, 810 S.W.2d at 395. We conclude that the probative value of the evidence was substantially outweighed, thus the evidence was inadmissible and the trial court erred and abused its discretion in failing to exclude it. Tex.R.Crim.Evid. 403.

We therefore reverse the judgment of the court of appeals and remand this cause to that court to conduct a harm analysis pursuant to Tex.R.App.Proc. 81(b)(2).

Footnotes

1

. We note that the transcript does not contain a copy of a judgment or sentence. However, we are able to discern the above-detailed information from the statement of facts and such does correspond with the parties’ allegations.

2

. The majority and dissenting opinions from the Fourteenth Court of Appeals and the State’s and appellant’s briefs all concur that it is very difficult to discern from where this mysterious quarter ounce came. It would seem to have been recovered from either appellant, the above-mentioned subject, or some other subject. It does not appear to have been recovered from the apartment which was searched.

3

.The prosecutor did argue to the jury that the officer said that he "met with the subject. And his testimony was, what did you get? I got a fourth of an ounce of cocaine." Later in argument she exhorted the jury to find that "what he (appellant] had on him was cocaine."

4

. We note that these rules are applicable to the case at bar, in spite of the date on which the offense was alleged to have occurred, because the trial took place after September 1, 1986, the effective date of said rules. See Willard v. State, 719 S.W.2d 595, 601 (Tex.Cr.App.1986).

5

. We do note that when the jury was removed after an earlier objection, there were discussions about the State attempting to establish probable cause for issuance of the search warrant. While the trial court indicated that it did not want to get "hung up on something that may have occurred prior to the issue [sic] of the search warrant,” the State argued that those other facts which led up to the execution of the warrant "go[es] into the probative value of it in that [appellant’s] involvement in something, that involvement with [the testifying officer] and the drug transaction prior to that, that is very substantial and very probative to the case” and that such occurred on the same day.

6

. The vehicle registration lists the date issued as "7-13-84" and indicates that it expired on the last day of June 1985. The Houston Lighting & Power Company bill indicates that it is a "final bill" for service at an unspecified former address and denotes a billing date of "Oct[.] 1, 1985” with a past due date of “Oct[J 1.”

7

. The report also indicates that 5.62 grams of cocaine was also analyzed by the lab; however that cocaine was never admitted into evidence and would appear to be the mysterious "quarter ounce” that the officer testified to recovering without specifying wherefrom.