Ray v. State , 2005 Tex. Crim. App. LEXIS 1965 ( 2005 )

KELLER, P.J.,

dissenting.

The Court characterizes Owen Williams as an “acquaintance” of appellant’s.¹ But Williams was not just an acquaintance; he was a friend. He explicitly said so in his own testimony on direct examination:

Q. All right Sir. Are you and her friends?

A. Yes.

Q. Is that a fair statement?

A. Yes.

In her testimony, appellant also admitted that she and Williams were “friends” and that was a “fair characterization.” The day she was arrested she went over to his house and watched television and played dominoes. She indicated that such behavior was not unusual and that “[w]e play dominoes, spades.” So Williams was not a disinterested witness. He was a friend, with a motive testify in appellant’s favor.

That fact alone would not make the error harmless, but there are other factors. Appellant was arrested on November 24, 2002, a Sunday. She testified under cross-examination that she had traveled from Longview to Marshall on Friday and made a return trip in time to be at Williams’s house on Sunday. Despite the fact that she had no friends in Marshall and rarely went to that town, she drove to Marshall alone “just to get out of, get out of [sic] Longview.” Although she claimed to have stayed at a motel, she could not recall its name, and could say only that it was on highway 80. She claimed that she did not smoke crack on Friday night or Saturday but smoked some residue in her pipe on Sunday morning before making her return trip to Longview.

Although she did not know George very well, appellant claimed that she accompanied him in his car to get something to eat at McDonald’s. She testified that she had only a small amount of change and would otherwise be forced to choose between putting gas in her car and getting something to eat because there was a risk there would not be anything to eat at her home in Pine Tree. She had not had a job in over two months.

When she and George were stopped, the police found the container of crack cocaine in between the center console and the passenger seat, where appellant was sitting. Her purse contained drug paraphernalia: a crack pipe, a straw, a razor blade, and baking soda. She admitted that the crack pipe and the straw were used to consume drugs, but she claimed that the razor blade and the baking soda were for legitimate, non-drug purposes. She claimed the razor blade was for use in a box cutter at previous jobs, and she had taken it out of its sheath and placed it in a lipstick box to keep from cutting herself when she reached inside her purse. When asked whether she used the razor blade for illegal purposes, she initially answered “not really.” As for the baking soda, she claimed it was for treating heartburn, or sometimes, for brushing her teeth. It is worth noting that appellant has prior drug convictions, including one for delivery.

Appellant’s explanations were beyond incredible. She claims she did not have enough money for gas on the way home, but she chose to travel to Marshall for no reason at all. However, she cannot remember the name of the place she stayed. She claims the razor blade was used in connection with work, but she had not worked for over two months. And her attempt to offer an innocuous explanation for the baking soda is simply “over the top.” As someone experienced with delivering drugs, she obviously knew that the razor blade and baking soda could not be explained as items possessed by a mere user. Her “not really” response to whether she used the razor blade for illegal purposes appears to be a not-so-subtle sign that she was not telling the truth.

The obvious explanation for all of these curious facts is that appellant went to Marshall (or perhaps somewhere else) to obtain the cocaine and met with George to sell the merchandise. Williams was an interested witness, and appellant’s attempts to innocently explain her behavior were not credible. Under these circumstances, I would find the error in excluding the evidence to be harmless.

1 . Court’s op. at 835.