Osborn Ernie Wilson v. State ( 2013 )

Affirmed and Memorandum Opinion filed March 12, 2013.
In The
Fourteenth Court of Appeals
___________________
NO. 14-11-00860-CR
___________________
OSBORN ERNIE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1189748
MEMORANDUM OPINION
Appellant, Osborn Ernie Wilson, was convicted of aggravated robbery. See
Tex. Penal Code Ann. §§ 29.02, 29.03. In this appeal, he contends that the trial
court erred in (1) admitting evidence of an extraneous offense, and (2) overruling
his motion to suppress. We affirm.
BACKGROUND
At approximately 6 a.m. on October 30, 2008, an unidentified man robbed
Corina Torres with a knife. Later that morning, police officers discovered Torres’s
purse under a vehicle seat in which appellant had been sitting, along with a wallet
belonging to Robert Patterson, who had been robbed two days earlier. This appeal
arises out of appellant’s trial for robbing Torres.
Prior to the trial, appellant moved to suppress evidence seized from the vehicle
he was in when police detained him. At a hearing on the motion, two Houston police
officers testified that, on the morning of the Torres robbery, they encountered appellant
while patrolling a high-crime area. The officers noticed a vehicle parked in the
driveway of what they described as a “crack house.” Appellant sat in the driver’s seat;
another man was in the front passenger’s seat. The officers parked their patrol car and
approached the vehicle.
As an officer approached appellant’s door, “the door flung open,” and appellant
“jumped out, yelling.” At that point, the officer observed “a white female’s I.D. on the
[vehicle’s] floorboard,” along with a checkbook and what appeared to be a deposit slip.
The officer also observed that both of the car’s occupants were “black males.”
Meanwhile, the second officer asked the passenger to exit the vehicle and then
observed the identification card of what “looked like a white female” as well as a purse
and “several different cards” on the floor of the driver’s side.
The officers testified that appellant appeared “agitated,” “excited,” “nervous,”
“shaky,” “combative,” and “aggressive.” Appellant’s head movements led one of the
officers to believe that he would flee, so appellant and his companion were handcuffed
and escorted to the police car. There, the officers attempted to question appellant
about the purse and the female’s identification card. Appellant said “something about
2
a crack head.” Beyond this, neither officer recalled him explaining why he possessed a
woman’s purse and identification. Appellant did, however, tell the officers that the
vehicle belonged to his girlfriend.
The officers collected identification from the two men. They checked for
outstanding warrants; appellant’s companion had three. The officers also learned to
whom the vehicle was registered and, after physically inspecting the female
identification card, determined that it was a driver’s license and that it did not belong to
appellant, his companion, or the vehicle’s registered owner. The officers then searched
the vehicle and, in addition to finding the purse under the driver’s seat, found several
other items, including a wallet, two identification cards of males, and some credit
cards.
The officers took appellant to the police station where they connected two of the
recovered identification cards to the Torres and Patterson robberies. Later that day,
both Torres and Patterson viewed a police lineup and each identified appellant as the
assailant in their respective robberies. The trial court denied appellant’s motion to
suppress the evidence found in the vehicle and, during the subsequent trial, the State
introduced that evidence.
Appellant’s defense at trial hinged in part upon the testimony of Claudel Rudd,
who stated that appellant had purchased the purse and several other items from him on
the morning of the Torres robbery. Appellant’s counsel attempted to lay the
groundwork for this defensive theory by asking one of the officers on cross-
examination whether he “recall[ed] [appellant] saying that he got [the purse] from
quote, ‘a crackhead.’”
The State argued that, because appellant’s counsel asked this question, it could
introduce evidence rebutting the defensive theory that appellant “got the property
3
lawfully from [a] crackhead.” To disprove appellant’s theory, the State sought to offer
evidence of the uncharged Patterson robbery. An officer then testified about retrieving
a brown wallet from the car, and Patterson identified this wallet as the one appellant
stole from him.
Appellant further developed this defensive theory during his case-in-chief.
Appellant’s counsel elicited testimony from Rudd that, on the morning of the Torres
robbery, Rudd was panhandling when an unidentified black man deposited a “nice”
“zip bag” in a nearby trash can. Rudd testified that he retrieved the bag, which
contained “a purse, . . . a brown wallet, . . . credit cards, [and] Social Security cards.”
Rudd said that he was addicted to cocaine at the time and sold the purse and its
contents to appellant for ten dollars. Despite Rudd’s testimony, the jury convicted
appellant of the Torres robbery.
ANALYSIS
Appellant presents two issues: (1) whether the trial court abused its
discretion in admitting evidence of the Patterson robbery; and (2) whether the trial
court abused its discretion in overruling appellant’s motion to suppress.
I. The trial court did not abuse its discretion in admitting evidence of the
Patterson robbery.
In his first issue, appellant contends the trial court violated Rule 404 of the
Texas Rules of Evidence when it admitted evidence that appellant robbed Patterson
two days before the Torres robbery. “A trial judge’s decision on the admissibility
of evidence is reviewed under an abuse of discretion standard and will not be
reversed if it is within the zone of reasonable disagreement.” Tillman v. State, 354
S.W.3d 425, 435 (Tex. Crim. App. 2011). We “must uphold the trial court’s ruling
if it is reasonably supported by the record and is correct under any theory of law
4
applicable to the case.” Willover v. State, 70 S.W.3d 425, 435 (Tex. Crim. App.
2002). “This principle holds true even when the trial judge gives the wrong
reason for his decision, and is especially true with regard to admission of
evidence.” Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 2002).
A. Evidence of other crimes may be admissible if it is relevant for
other purposes apart from showing character conformity.
Rule 404(b) provides that “[e]vidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” The rule does not categorically exclude evidence, but provides that
certain evidence is inadmissible to prove certain facts in a certain way. See De La
Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). Specifically, the rule
prohibits a two-part chain of inferences. The first inference is that the person who
engaged in the “crime[ ], wrong[ ] or act[ ]” possesses a certain “character.” Tex.
R. Evid. 404(b). The second inference is that, because the person possesses this
character, he or she acted in conformity with it on a particular occasion. Id. When
evidence relies exclusively upon this inferential chain for its relevance, Rule 404
renders it inadmissible. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex.
Crim. App. 1990) (op. on reh’g).
When evidence has relevance apart from this particular chain, however, Rule
404 has little to say about it. In some cases, of course, the prohibited inferences
are so compelling and the alternative relevance so tenuous that admitting the
evidence creates unfair prejudice that substantially outweighs its “non-character”
probative value. See Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App.
1999). When this happens, the trial court may exclude the evidence under Rule
403. See id. Moreover, when evidence could be considered for both an improper
5
character purpose and a legitimate non-character purpose, the trial court, upon
request, should instruct the jury to limit its consideration of the evidence (as it did
here). Montgomery, 810 S.W.2d at 388; see also Tex R. Evid. 105(a). This case
does not implicate such concerns, however, because appellant challenges neither
the jury instructions nor Rule 403’s balance of prejudice and relevance.
Our inquiry thus defined, we turn to Rule 404. The question before us is
whether evidence of the prior Patterson robbery had relevance apart from proving
appellant’s alleged character for robbery and thereby showing that appellant
robbed Torres in conformity with his alleged character to do so.
Courts have recognized many alternative bases for admitting extraneous
offense evidence. Generally speaking, a party may introduce such evidence
where—without relying upon the prohibited inferences—it logically serves to
make more probable or less probable an elemental fact, an evidentiary fact that
inferentially leads to an elemental fact, or defensive evidence that undermines an
elemental fact. Montgomery, 810 S.W.2d at 387. Thus, extraneous offense
evidence may be admissible to establish a contested element of the prosecution
such as motive, intent, or identity, or to rebut a defensive theory such as absence of
mistake or accident. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.
2003). Extraneous offense evidence may also be admissible as “same-transaction
contextual evidence” to the extent necessary to the jury’s understanding of the
charged offense. See Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000).
Because no exhaustive list of permissible alternative justifications exists or
is possible, “[t]he proponent of uncharged misconduct evidence need not ‘stuff’ a
given set of facts into one of the laundry-list exceptions set out in Rule 404(b).”
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). Instead,
6
proponents must be able to explain the logical and legal rationales that support a
non-character basis for admitting the evidence. Id. Extraneous offense evidence
that logically serves a non-character purpose is “relevant beyond its tendency to
prove the character of a person to show that he acted in conformity therewith,” and
it is therefore admissible subject to other applicable rules. Montgomery, 810
S.W.2d at 387 (internal quotation marks omitted).
B. Evidence of the Patterson robbery was relevant for the non-
character purpose of rebutting appellant’s defensive theory that
he innocently received Torres’s purse from Rudd.
Here, the State offers three bases for admission of the Patterson robbery
evidence: (1) proving identity under the so-called signature-crime exception, (2)
impeaching Rudd’s testimony, and (3) rebutting the defendant’s explanation for
possessing Torres’s recently stolen property. Because we agree with the State’s
third proposed justification, we do not address the other two.
One well-established rationale for admitting evidence of uncharged
misconduct is to rebut a defensive issue that negates one of the elements of the
offense. De La Paz, 279 S.W.3d at 343. Merely denying the commission of an
offense, however, generally does not permit admission of extraneous-offense
evidence. See id. at 343. Rather, the question is whether the proposed extraneous-
offense evidence tends to make the defensive theory less probable without relying
upon prohibited character inferences. See id.; Bass v. State, 270 S.W.3d 557, 563
& n.8 (Tex. Crim. App. 2008).
Put another way, a defensive theory gives the State something new to rebut,
which may expand the field of relevant issues and make otherwise-irrelevant
evidence relevant. Bass, 270 S.W.3d at 558 n.8. For example, in Richardson v.
State, the defendant explained incriminating materials found in his vehicle by
7
testifying that he was innocently helping a “fellow employee” move when police
discovered the materials. 328 S.W.3d 61, 71 (Tex. App.—Fort Worth 2010, pet.
ref’d) (per curiam). His defense was that he was unaware of the incriminating
items, among which were credit card receipts. Id.
To rebut this theory, the State introduced evidence that the defendant
participated in a “dumpster diving” scheme that involved collecting credit card
receipts from garbage bins. Id. at 70, 71-72. The court of appeals held that
admission of evidence related to this extraneous scheme was not an abuse of
discretion because it tended to rebut the defendant’s theory that he was
unknowingly moving the receipts for a fellow employee. Id. at 72. While this
evidence may have been inadmissible initially, the defendant’s theory that he was
unaware of the items made evidence of how he acquired them relevant for the non-
character purpose of demonstrating his knowledge that he possessed them.
Similarly here, the Patterson robbery is an extraneous offense. Initially,
evidence that appellant possessed Patterson’s stolen wallet was likely not probative
of whether appellant robbed Torres, apart from the prohibited character-conformity
inference. But appellant offered an innocent explanation for officers finding
Torres’s purse on the floorboard of appellant’s car within hours of the Torres
robbery: he got the purse from Rudd, a “crackhead.” Problematic to appellant’s
defensive theory is the presence of other stolen property—Patterson’s brown
wallet—on the floorboard of appellant’s vehicle at the same time. While appellant
offered evidence that he also got a brown wallet from Rudd, Patterson could not
only identify the brown wallet on the floorboard as his stolen property but also link
it to appellant as his assailant. In this way, evidence of the Patterson robbery
became probative apart from the prohibited inference. The State could not
8
introduce Patterson’s evidence to prove appellant more likely than not robbed
Torres because he also robbed Patterson. The State could, however, introduce that
evidence to show it was less likely appellant had innocently obtained Torres’s
purse from Rudd because at the same time and in the same place he possessed a
brown wallet that he had stolen from Patterson.
Evidence rebutting appellant’s innocent explanation was important to the
State’s case. Unexplained possession of recently stolen property permits an
inference that the person possessing the property also stole it. See Hardesty v.
State, 656 S.W.2d 73, 77 (Tex. Crim. App. 1983); Brown v. State, 804 S.W.2d 566,
570 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d). While not conclusive, this
inference alone can suffice to sustain a conviction. Id. When the defendant
produces evidence that he innocently acquired the property, however, the State can
no longer rely exclusively upon the inference and must introduce evidence
showing the defendant’s explanation to be false or unreasonable. See Prodan v.
State, 574 S.W.2d 100, 102–03 (Tex. Crim. App. 1978); Adams v. State, 552
S.W.2d 812, 815 (Tex. Crim. App. 1977).
Here, to prove its case, the State relied in large part upon appellant’s
possession of Torres’s recently stolen purse.1 Appellant’s theory that he bought a
bag containing the purse explained this possession and thus forced the State to
shore up the inference that appellant possessed the purse because he had stolen it.
As discussed above, evidence of the Patterson robbery tended to show that
appellant’s explanation was false. In this way, the evidence enabled the State to
1
The State also relied upon Torres’s identification of Rudd as the man who robbed her,
which further rebutted appellant’s explanation that he acquired the purse by purchase. We do not
intend for our discussion of the recently-stolen-property inference to imply that the evidence
against appellant would have been insufficient absent evidence of the Patterson robbery. That
question is not before us, and we express no opinion upon it.
9
rely upon the full strength of the inference that appellant possessed Torres’s
recently stolen purse because he stole it.2 For these reasons, we conclude that the
trial court did not abuse its discretion by admitting evidence of the Patterson
robbery, and we overrule appellant’s first issue.
II. The trial court did not abuse its discretion in denying appellant’s
motion to suppress.
In his second issue, appellant contends that the vehicle search violated the
United States and Texas Constitutions. See U.S. Const. amend. IV; Tex. Const. art.
I, §9. We note, at the outset, that appellant has not appealed any issues related to
his detention, and we limit our analysis accordingly.
We review a ruling on a motion to suppress for abuse of discretion.
Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). More
specifically, we apply a bifurcated standard of review. Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to a trial
court’s determination of historical facts and review de novo the trial court’s
application of the law of search and seizure. Tucker v. State, 369 S.W.3d 179, 184
(Tex. Crim. App. 2012). When, as here, the trial court does not make findings of
fact, we view the evidence in the light most favorable to the trial court’s ruling. Id.
A search conducted without a warrant is per se unreasonable unless it falls
within one of the “specifically defined and well established” exceptions to the
warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.
2003). “One such exception holds that the police may lawfully search an
2
For other cases in which extraneous offenses have been held admissible to show unexplained
possession of recently stolen property, see Beard v. State, 458 S.W.2d 85, 88 (Tex. Crim. App. 1970);
Ruiz v. State, 726 S.W.2d 587, 590–91 (Tex. App.—Houston [14th Dist.] 1987), vacated on other
grounds, 761 S.W.2d 4 (Tex. Crim. App. 1988).
10
automobile if they have probable cause to believe that the vehicle contains
evidence of a crime. Probable cause to search exists when there is a ‘fair
probability’ of finding inculpatory evidence at the location being searched.” Neal
v. State, 256 S.W.3d 264, 283 (Tex. Crim. App. 2008).
Here, ample facts supported probable cause. First, there was an
identification card in plain view in the vehicle that depicted a female and thus did
not belong to the vehicle’s male occupants.3 A purse, typically a female accessory,
was also visible. When approached, appellant appeared aggressive and nervous;
his movements suggested that he was considering flight. In response to inquiries
about the items, appellant made reference to a “crack head.” The officers also
knew that appellant was parked at a so-called crack house in a high-crime area.
Collectively, these observations justified the reasonable suspicion that either (1)
appellant received the purse and identification card from a crack addict, as he
suggested, or (2) appellant was dissembling and, in fact, had stolen the items
himself. Either inference leads to a “fair probability” that the visible identification
card evidenced a theft and that the vehicle might contain additional corroborating
evidence. See id.
Viewed in the light most favorable to the trial court’s ruling, this evidence
shows that the officers had probable cause at the time of the search to believe that
the vehicle contained evidence of a crime. Accordingly, the trial court did not
3
Although appellant characterizes as “highly questionable” the officers’ testimony that
they observed the female identification card prior to their search of the vehicle, the trial court
was entitled to believe that testimony. In the absence of specific findings, we “infer[ ] the
necessary factual findings that support the trial court's ruling if the record evidence (viewed in
the light most favorable to the ruling) supports these implied fact findings.” State v. Garcia-
Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
11
abuse its discretion in denying the motion to suppress, and we overrule appellant’s
second issue.
CONCLUSION
Having overruled both of appellant’s issues, we affirm the judgment of the
trial court.
/s/ J. Brett Busby
Justice
Panel consists of Justices Frost, McCally, and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
12