State of Texas v. Cody Dale Lawler ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00099-CR

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THE STATE OF TEXAS, Appellant

 

V.

 

CODY DALE LAWLER, Appellee

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On Appeal from the County Court

Lamar County, Texas

Trial Court No. 48105

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            The trial court granted Cody Dale Lawler's motion to suppress the evidence obtained from Texas Department of Public Safety Trooper Thomas Anderson's traffic stop of Lawler October 9, 2004. The State intended to use that evidence to prosecute Lawler for misdemeanor driving while intoxicated with an open alcoholic beverage container. On appeal, in what is effectively a challenge to the sufficiency of the evidence, the State argues the trial court erred in suppressing the evidence because Anderson had reasonable suspicion for the stop. We affirm.

Under the Fourth Amendment, a temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). These facts must amount to more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

 

The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 147, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972). For example, in Armendariz v. State, we held that a stop based on facts observed by an undercover officer and transmitted by radio to a deputy sheriff did not violate the Fourth Amendment. 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).

            At the hearing on Lawler's motion to suppress, the trial court heard testimony from Anderson. Anderson first recounted the radio report from Deputy Donald Parks that Parks suspected Lawler was intoxicated because as Lawler drove his vehicle it wove from lane to lane and was traveling very slowly. Then Anderson recounted his personal observations that Lawler's vehicle was traveling very slowly, was "weaving within" its lane of traffic, and committed approximately one quarter of his vehicle into the adjoining lane before signaling that lane change. The in-car videotape taken from Anderson's car, while he briefly followed Lawler's car, was admitted into evidence and viewed repeatedly by the trial court. After finding from the bench that Lawler had signaled his lane change before his vehicle actually began crossing the line between the lanes and stating the court's inability to see any weaving by Lawler's vehicle, the trial court suppressed the evidence obtained from the stop.

            In reviewing a motion to suppress, we give great deference to the trial court's findings of historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. And we will sustain the trial court's ruling if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

            The ruling of the trial court is reasonably supported by the record. We affirm the judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          October 28, 2005

Date Decided:             October 31, 2005

Do Not Publish

a noncapital trial. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008). Evidence is "relevant to sentencing," within the meaning of the statute, if the evidence is "helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case." Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006).

The length and breadth of admissible evidence at a punishment trial is illustrated in Rodriguez. Rodriguez was convicted as a party to an escape when he assisted his son in escaping from prison together with six other prisoners, who then went on a well-publicized crime spree including several armed robberies and murder. At the punishment hearing, the State sought to introduce evidence of all the crimes the escapees, known as the Connally Seven, committed after escaping and their entire criminal records. Id. at 840. The Texas Court of Criminal Appeals found that this evidence was admissible during the punishment phase even though Rodriguez was not criminally responsible for the crimes the group committed after the escape. Reciting that admissibility of evidence at a punishment trial is a function of policy rather than relevance, the Texas Court of Criminal Appeals found such evidence to be admissible and that the evidence was not unfairly prejudicial per Rule 403 of the Texas Rules of Evidence. The court found this evidence was probative concerning Rodriguez' moral blameworthiness for not assisting the police in the recapture of the escapees. Id. at 843.

Here, the trial court admitted Rogers' testimony without elaborating on the basis of its decision. We find the evidence in question is relevant to at least two areas listed within the statute. The action of Campbell was an extension of his conduct on April 5, 2006, when the evidence shows he intentionally fled from persons he knew were peace officers attempting to lawfully arrest him, violating Section 38.04 of the Texas Penal Code. ⁽⁴⁾ Additionally, the evidence is relevant to show the prior "bad act" of fleeing from justice for a period of over two years, so long as the State was able to prove this evidence "beyond a reasonable doubt" or to otherwise show that Campbell "could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act." ⁽⁵⁾ Rogers' testimony on this issue was uncontested, and such proof was sufficient to convince a rational juror beyond a reasonable doubt that Campbell did, in fact, flee from the officers attempting to arrest him and that he did, in fact, remain a fugitive from justice for over two years before he was finally apprehended. ⁽⁶⁾

Second, this testimony impacts negatively on Campbell's character as it is evidence of an abject lack of respect for lawful authority. ⁽⁷⁾ Just as in Rodriguez, Campbell's evasion of law enforcement efforts to arrest him was relevant in considering his moral blameworthiness. The trial court could have reasonably concluded that such evidence would be helpful to the jury in determining the appropriate sentence for Campbell in this case. Beyond these two bases for admission, the statute clearly states that the court "may admit any evidence it deems relevant to sentencing, including but not limited to . . . ." ⁽⁸⁾ This standard for admission of evidence in a punishment trial is extremely broad.

B. Probative Value Versus Prejudicial Impact

Next, we must determine whether admission of the subject testimony constitutes an abuse of discretion under Rule 403 of the Texas Rules of Evidence. Relevant evidence is generally admissible, but it is properly excluded under Rule 403 when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." ⁽⁹⁾ Rule 403 of the Texas Rules of Evidence favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 390. "'[U]nfair prejudice' refers to 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one.'" Erazo, 144 S.W.3d at 501-02 (quoting Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999)).

It is a given that all testimony and evidence will be prejudicial to one party or the other. See Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). It is only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable. Jones, 944 S.W.2d at 653.

Rogers' testimony regarding Campbell's fugitive status and the extraordinary effort expended by law enforcement to apprehend Campbell was not so prejudicial as to require exclusion. Had Campbell allowed himself to be arrested, then made bond, gotten a job, and generally stayed clear of trouble until his trial, he would have necessarily been permitted to bring such evidence to the jury at the punishment phase of trial, as it is relevant to character and would be helpful to the jury in determining the appropriate sentence. Likewise, the jury is permitted to hear evidence that Campbell attempted to frustrate prosecution, refused to return and face charges, or to permit himself to be arrested. This information is helpful to the jury in its determination of an appropriate sentence.

The unusual feature in this case is that the television program "America's Most Wanted" featured a segment on Campbell. ⁽¹⁰⁾ The entirety of Rogers' testimony was brief, and her testimony regarding the feature on "America's Most Wanted" amounted to only one sentence. There was no attempt by the State in its questioning of Rogers to utilize this aspect of the evidence in a sensationalistic or shocking manner.

There is no clear disparity between the probative value of the evidence introduced against Campbell at the punishment phase of the trial and the danger of unfair prejudice to Campbell. We analyze four factors in conducting the Rule 403 balancing test: ⁽¹¹⁾

(1) how compellingly the evidence serves to make a fact of consequence more or less probable--the evidence of Campbell's continued flight to avoid prosecution was relevant and probative as to Campbell's moral blameworthiness and was helpful to the jury in determining the appropriate punishment; (2) the potential to impress the jury on some irrational basis--here the evidence was not an appeal to improper emotion or a confusion of the issues; (3) the time needed to develop the evidence--the testimony of Rogers was very brief, consisting of less than four typed pages in the record, and (4) the force of the proponent's need for the evidence--the evidence was not cumulative of any other evidence admitted in the punishment trial. While the evidence was necessarily prejudicial to Campbell, it was not unfairly so.

IV. CONCLUSION

The trial court did not err by admitting testimony during Campbell's punishment trial that Campbell not only evaded capture by law enforcement at the time of the attempted arrest, but that he also continued to flee from justice for over a period of two years, causing numerous law enforcement agencies to assist in the effort to bring him to justice. The probative value of this evidence was not substantially outweighed by any unfair prejudice resulting from its admission. The trial court did not abuse its discretion by admitting this evidence.

We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: September 30, 2009

Date Decided: October 28, 2009

Do Not Publish

1. Assault   on   a   public   servant   is   a   third   degree   felony.   See   Tex.  Penal   Code  Ann. § 22.01(a)(1), (b)(1) (Vernon Supp. 2009). Campbell's punishment was enhanced to that of a second degree felony based on a prior felony conviction. Punishment for a second degree felony is imprisonment in the Texas Department of Criminal Justice for any term of not more than twenty years  or  less  than  two  years,  plus  a  fine  not  to  exceed  $10,000.00.  Tex.  Penal  Code  Ann. § 12.33(a), (b) (Vernon Supp. 2009).

2. McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007) (citing Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004)).

3. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).

4. See Tex. Penal Code Ann. § 38.04 (Vernon Supp. 2009).

5. Rodriguez, 203 S.W.3d at 843.

6. We note that evidence of flight was admitted during the guilt/innocence phase of the trial (although there was no evidence of the two-year time span Campbell evaded arrest). Evidence of flight is admissible in that context because flight is a circumstance from which guilt may be inferred. Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). Such evidence is also relevant "to show the efforts made to locate or apprehend the accused, his pursuit and capture, including his resistance to arrest when overtaken." Hunter v. State, 530 S.W.2d 573, 575 (Tex. Crim. App. 1975). The jury properly considers guilt/innocence evidence during the punishment trial. Burks v. State, 227 S.W.3d 138, 152 (Tex. App.-- Houston [1st Dist.] 2006, pet. ref'd).

7. Character evidence in the form of opinion testimony and extraneous-offense evidence are admissible at the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07; Sims, 273 S.W.3d at 296. Specific instances of conduct of the person from which inferences may be drawn is one form of character evidence. Hedicke v. State, 779 S.W.2d 837, 839 (Tex. Crim. App. 1989).

8. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (emphasis added).

9. Tex. R. Evid. 403.

10. The issue of pretrial publicity was addressed during voir dire. Only one potential juror had heard anything about the case, and this juror was excused. One other venire member knew Campbell from school, and this juror was also excused.

11. De La Paz v. State, 279 S.W.3d 336, 348-49 (Tex. Crim. App. 2009).