Dmitri Lee Davis v. State ( 2019 )


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  • Affirmed and Memorandum Opinion filed October 1, 2019.
    In The
    Fourteenth Court of Appeals
    NO. 14-18-00392-CR
    DMITRI LEE DAVIS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 56th District Court
    Galveston County, Texas
    Trial Court Cause No. 17-CR-1551
    MEMORANDUM OPINION
    Appellant Dmitri Lee Davis appeals his conviction for possession of a
    controlled substance with intent to deliver, namely methamphetamine between 4
    and 200 grams. A jury found appellant guilty and assessed his punishment at 20
    years in prison. In two issues, appellant contends that (1) the trial court erred by
    admitting evidence concerning the extraneous offense of possession of marijuana,
    and (2) he received ineffective assistance of counsel because his trial counsel failed
    to object when the State introduced pills into evidence that had not been tested for
    methamphetamine. We affirm.
    Background
    Officer Murphy of the Galveston Police Department began his testimony by
    detailing his training and experience, particularly as it related to drug
    investigations. He stated that his training included drug recognition schools.
    Murphy further testified that on March 14, 2017, while on patrol, he initiated a
    traffic stop of appellant’s vehicle for speeding and failure to stop at a stop sign.
    Murphy said that when he made contact with appellant, appellant was acting
    “nervous and . . . a little worried.” Murphy smelled the odor of marijuana
    emanating from appellant’s vehicle and saw an open bottle of alcohol in the
    vehicle. Murphy also observed what he described as “a large amount of narcotics
    in the door.”1 A subsequent search of appellant’s vehicle uncovered what Murphy
    described as a “[b]ag full of Ecstasy pills” and several bags of hydroponic
    marijuana.2 Murphy explained that the 87 pills in the bag were MDMA pills, which
    he said stood for the chemical components in methamphetamine-based Ecstasy.
    A video recording taken from a camera in Murphy’s patrol car showed the
    traffic stop and the recovery of the bags from the door of appellant’s vehicle.
    Murphy initially placed the bags on the roof of appellant’s vehicle but then moved
    them to the hood of his patrol car, directly in front of the video camera. In the
    video recording, appellant can be heard expressing surprise regarding the alleged
    presence of drugs in his vehicle, and he said that he had just bought the vehicle
    about a week before. Murphy testified that appellant’s insurance information
    1
    It is not entirely clear from the testimony how much of the drugs Murphy could see
    when the door was closed.
    2
    The marijuana apparently was contained in 22 separate bags, with approximately 20 of
    the small bags in one larger bag and two of the smaller bags loose in the door.
    2
    showed that he had purchased the vehicle longer ago than that, but Murphy was not
    specific.
    Murphy further explained that the number of Ecstasy pills recovered would
    not have been for personal use but could have been sold in smaller numbers for a
    profit. He similarly said that the amount of marijuana recovered “would probably
    go bad” before an individual could have used it all. When the prosecutor asked
    Murphy about the value of the marijuana if it was portioned for sale, appellant’s
    counsel objected that “that’s not the offense charged.” In a discussion before the
    bench, the prosecutor argued that the testimony regarding the volume and value of
    the marijuana—along with the fact that it was divided into 22 smaller bags—was
    relevant to show appellant also possessed the methamphetamine pills with the
    intent to deliver. Appellant’s counsel countered that “that would be fine” if
    appellant was on trial for possessing marijuana instead of methamphetamine. The
    prosecutor further asserted that the evidence regarding the pills was contextual.
    The trial judge overruled the objection.
    Murphy then testified that the marijuana had a resale value of around $800
    to $1000, and the 87 pills would have a value of around $5 apiece or $435. Murphy
    opined that the number of pills, the amount of marijuana, and the fact that the
    marijuana was in 22 separate bags made “it pretty obvious that it’s to be delivered
    as opposed to just consumed.”
    The prosecution offered into evidence the two “evidence packages” in which
    Murphy had placed the pills and the marijuana. Defense counsel objected to
    Exhibit 3, the package containing the marijuana, on relevance grounds but did not
    object to Exhibit 2, the package containing the pills. The trial court admitted both
    exhibits into evidence. On cross-examination, Murphy stated that he did not recall
    finding a large amount of cash on appellant or any scales, measuring devices, or
    3
    other paraphernalia that might typically be in the possession of a drug dealer.
    Jennifer Hatch, a forensic scientist with the Department of Public Safety
    Crime Lab, began her testimony by explaining how she tests alleged controlled
    substances for their composition. She said that per lab policy, she separated the
    pills in this case into two groups according to their color and imprint. She then
    tested 19 of the 87 pills and determined that they contained methamphetamine.
    Hatch explained that also per lab policy, she stopped testing when the weight of the
    pills tested reached over 4 grams.3 This is why she only tested 19 of the pills.
    Hatch also tested the marijuana and verified that it was in fact marijuana. During
    cross-examination, Hatch agreed that as a scientist, she would not feel comfortable
    testifying that the untested pills contained methamphetamine.
    Hatch’s lab report, which was also admitted into evidence, showed that she
    tested 13 white pills and 6 red pills. The report listed the remaining pills simply as
    “numerous multicolored tablets.” The report further revealed that she sampled 16
    of the marijuana bags, and “[t]he statistical sampling plan used indicates a 95%
    confidence that at least 90% of the items will have the reported results.”
    In its charge, the trial court instructed the jury regarding extraneous offenses,
    including that they could only be considered “in determining the intent,
    knowledge, design, motive, opportunity, preparation, plan, or scheme of the
    Defendant, if any, in connection with the offense . . . alleged against him in the
    indictment.” The jury found appellant guilty, and after a punishment phase in
    which evidence of numerous prior offenses was presented, assessed his punishment
    3
    The State has to prove only that the aggregate weight of the controlled substance
    mixture, including adulterants and dilutants, equals the alleged minimum weight. Melton v. State,
    
    120 S.W.3d 339
    , 344 (Tex. Crim. App. 2003) (citing Tex. Health & Safety Code § 481.002(5));
    see also Graham v. State, 
    201 S.W.3d 323
    , 329 (Tex. App.—Houston [14th Dist.] 2006, pet.
    ref’d).
    4
    at 20 years in prison.
    Extraneous Offense Evidence
    In his first issue, appellant contends that the trial court erred in admitting
    evidence regarding an extraneous offense of possession of marijuana. Specifically,
    appellant contends that the evidence was inadmissible both because (1) the State
    failed to provide notice of its intent to introduce evidence of the extraneous
    offense, and (2) the evidence was offered to prove appellant’s character and action
    in conformity therewith in violation of Texas Rule of Evidence 404(b). The State
    argues that appellant has waived his complaints by failing to preserve them in the
    trial court. See Tex. R. App. P. 33.1; see also Vasquez v. State, 
    483 S.W.3d 550
    ,
    554 (Tex. Crim. App. 2016) (“Rule of Appellate Procedure 33.1 requires a litigant
    to present his objection to the trial court by a timely request, objection, or motion,
    that is sufficiently specific to make the trial court aware of his complaint.”). We
    agree with the State.
    Evidence of extraneous offenses is not admissible at the guilt phase of a trial
    to prove that a defendant committed the charged offense in conformity with a bad
    character, but it may be admissible if it has relevance apart from character
    conformity, such as when it provides proof of motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence of mistake or accident or when
    evidence of multiple crimes are connected such that full proof of any one of them
    cannot be given without evidence of the others. See Tex. R. Evid. 404(b); Devoe v.
    State, 
    354 S.W.3d 457
    , 469 (Tex. Crim. App. 2011). Whether extraneous offense
    evidence has relevance apart from character conformity is a question for the trial
    court. 
    Devoe, 354 S.W.3d at 469
    . We therefore review a trial court’s ruling on the
    admissibility of extraneous offense evidence under an abuse of discretion standard.
    
    Id. We must
    affirm if the trial court’s ruling was within the “zone of reasonable
    5
    disagreement.” 
    Id. A trial
    court generally does not abuse its discretion in admitting
    extraneous offense evidence if such evidence was “relevant to a material, non-
    propensity issue.” 
    Id. We will
    affirm if the trial court’s ruling was correct on any
    theory of law applicable to the case. 
    Id. Additionally, under
    Rule 404(b)(2), on
    timely request by a defendant, the State must provide reasonable notice before trial
    that it intends to introduce extraneous offense evidence. Tex. R. Evid. 404(b)(2).
    As will be discussed in more detail below, the State elicited evidence of
    appellant’s possession of marijuana at numerous points during the trial. However,
    at no point did appellant object to such evidence on the ground that he did not
    receive notice under Rule 404(b)(2). Accordingly, appellant waived this complaint.
    See 
    Vasquez, 483 S.W.3d at 554
    ; see also Blackmon v. State, 
    80 S.W.3d 103
    , 107
    (Tex. App.—Texarkana 2002, pet. ref’d) (holding lack of objection to State’s
    failure to give notice of intent to use extraneous offense waived issue).
    The State first mentioned appellant’s alleged possession of “a large amount
    of marijuana” during its opening argument. Officer Murphy testified that when he
    first made contact with appellant during the traffic stop, Murphy smelled a strong
    odor of marijuana. The video recording of the traffic stop and subsequent search of
    appellant’s vehicle showed Murphy remove the bag of marijuana from the driver’s
    side door of appellant’s vehicle and place it first on the roof of appellant’s vehicle
    and then on the hood of Murphy’s patrol car immediately in front of the camera.
    Murphy narrated the video for the jury and expressly stated that the large bag he
    pulled from appellant’s vehicle contained marijuana. He further explained that his
    use of the word “hydro” in speaking with appellant on the video recording was a
    reference to hydroponic marijuana. At no time up to this point in the record did
    appellant object to the evidence regarding his possession of marijuana.
    It was only when the prosecutor asked Murphy regarding the value of the
    6
    marijuana that appellant objected on the ground that “that’s not the offense
    charged.” The prosecutor, at least, appeared to interpret this statement as an
    objection regarding extraneous offense evidence under Rule 404(b) and argued
    accordingly.
    Subsequently, when Murphy was asked about his probable cause to search
    appellant’s vehicle, he again noted that he had smelled marijuana when he first
    contacted appellant. And Murphy mentioned the marijuana in discussing the
    organization of the exhibits, and he was asked for and provided a total weight for
    the marijuana found in appellant’s vehicle. Again, appellant lodged no objections
    to this testimony. When the State introduced Exhibit 3, the bag of marijuana itself,
    into evidence, appellant objected on relevance grounds, but a relevance objection
    does not preserve a complaint regarding extraneous offense evidence. See, e.g.,
    Medina v. State, 
    7 S.W.3d 633
    , 643 (Tex. Crim. App. 1999); Rawlins v. State, 
    521 S.W.3d 683
    , 870-71 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). Lastly,
    when Hatch testified regarding her testing and weighing of the marijuana,
    appellant again offered no objection.
    In order to preserve error on the admission of evidence, a defendant must
    object each time the inadmissible evidence is offered unless he obtains a running
    objection or a ruling on his complaint in a hearing outside the presence of the jury.
    Lopez v. State, 
    253 S.W.3d 680
    , 684 (Tex. Crim. App. 2008); Ethington v. State,
    
    819 S.W.2d 854
    , 858–59 (Tex. Crim. App. 1991); Merrit v. State, 
    529 S.W.3d 549
    ,
    556 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). Here, appellant only made
    one arguably valid objection to the evidence that he possessed marijuana despite
    numerous references to such possession. Appellant did not request or receive a
    running objection, and he did not request or receive a hearing outside of the jury’s
    presence. Accordingly, appellant waived his Rule 404(b) complaint.
    7
    We overrule appellant’s first issue.
    Assistance of Counsel
    In his second issue, appellant contends that he received ineffective assistance
    of counsel because his trial counsel failed to object when the State introduced into
    evidence pills that had not been tested for whether they contained
    methamphetamine. As discussed above, Hatch testified that she only tested 19 of
    the 87 pills because lab policy was to cease testing once the offense threshold was
    reached, in this case, 4 grams.
    The Sixth Amendment to the United States Constitution guarantees the right
    to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const.
    amend. VI; McMann v. Richardson, 
    397 U.S. 759
    , 771 n.14 (1970). Claims of
    ineffective assistance of counsel are evaluated under the two-pronged Strickland
    test that requires a showing that counsel’s performance was deficient and that the
    defendant suffered prejudice as a result. Strickland v. Washington, 
    466 U.S. 668
    ,
    689 (1984); see also Thompson v. State, 
    9 S.W.3d 808
    , 812 (Tex. Crim. App.
    1999). Essentially, appellant must show his counsel’s representation fell below an
    objective standard of reasonableness based on prevailing professional norms and
    there is a reasonable probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different. 
    Strickland, 466 U.S. at 693
    ;
    Lopez v. State, 
    343 S.W.3d 137
    , 142 (Tex. Crim. App. 2011). Any allegation of
    ineffectiveness must be firmly founded in the record, and the record must
    affirmatively demonstrate the alleged ineffectiveness. 
    Thompson, 9 S.W.3d at 813
    .
    In the majority of cases, the record on direct appeal is simply undeveloped
    and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State,
    
    973 S.W.2d 954
    , 957 (Tex. Crim. App. 1998). A proper record is best developed in
    a habeas corpus proceeding or in a motion for new trial hearing. DeLeon v. State,
    8
    
    322 S.W.3d 375
    , 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
    To demonstrate ineffective assistance based on a failure to object to
    evidence, an appellant must show that the trial court would have committed
    harmful error by overruling the objection had trial counsel objected. Donald v.
    State, 
    543 S.W.3d 466
    , 478 (Tex. App.—Houston [14th Dist.] 2018, no pet.). It is
    not entirely clear here on what basis appellant believes the untested pills should
    have been excluded. In his brief, appellant mentions Hatch’s testimony that as a
    scientist she was not comfortable testifying that all of the pills contained
    methamphetamine, and he discusses the law regarding extraneous offenses, which
    is set forth in the discussion of the previous issue above. We conclude, however,
    that appellant has failed to demonstrate that the trial court would have erred had it
    overruled any such objection to the untested pills.
    The evidence concerning the 87 pills recovered from appellant’s vehicle
    included the following. All of the pills were found together in one bag. Murphy,
    who had training and experience in drug identification, identified the pills as
    MDMA or methamphetamine-based Ecstasy. Hatch stated that she divided the pills
    into two groups based on their color and imprint. She then tested 13 white pills and
    6 red pills, which all tested positive for methamphetamine. Although Hatch
    declined to verify as a scientist that all 87 pills contained methamphetamine, she
    also did not dispute that all of the pills contained methamphetamine.
    A reasonable inference from this evidence is that the remaining pills either
    matched the color and imprint of the white pills Hatch tested or the red pills that
    she tested.4 Accordingly, it would also be reasonable to conclude that the untested
    4
    If the untested pills were not identical in appearance to the tested pills, appellant could
    have established this at a hearing on a motion for new trial, but he did not. See generally
    
    DeLeon, 322 S.W.3d at 381
    .
    9
    pills were of the same composition as the tested pills; they were all found at the
    same time in the same bag, and the untested pills had the same color and imprint of
    one or the other of the tested pills. See Melton v. State, 
    120 S.W.3d 339
    , 343–44
    (Tex. Crim. App. 2003) (holding it was reasonable for jury to infer that all 35-40
    “rocks” contained cocaine when they were all found in the same bag, random
    testing of some rocks was positive for cocaine, and the jury was able to inspect the
    rocks to determine their homogeneity); Allen v. State, 
    249 S.W.3d 680
    , 685 n.5
    (Tex. App.—Austin 2008, no pet.) (“The random sampling of apparently
    homogeneous substances contained within a single receptacle is sufficient to prove
    the whole is contraband.”); see also Dent v. State, No. 14-14-00536-CR, 
    2015 WL 1143077
    , at *3–4 (Tex. App.—Houston [14th Dist.] Mar. 12, 2015, pet. ref’d)
    (mem. op., not designated for publication) (applying Melton in context of pills);
    Woods v. State, No. 14-07-00940-CR, 
    2009 WL 1975547
    , at *10 (Tex. App.—
    Houston [14th Dist.] July 9, 2009, pet. ref’d) (mem. op., not designated for
    publication) (same).5
    The untested pills therefore would not have been evidence of an extraneous
    offense; they were evidence of the charged offense that appellant possessed
    methamphetamine of between 4 and 200 grams with intent to deliver. Accordingly,
    appellant has failed to demonstrate that the trial court would have erred in
    overruling an objection to the untested pills as evidence. Consequently, he has
    failed to establish that his trial counsel’s representation was inadequate for failing
    to make such an objection. See 
    Donald, 543 S.W.3d at 478
    . We therefore overrule
    5
    We cite unpublished opinions for comparative and illustrative purposes, not for
    precedential value. See Peyronel v. State, 
    465 S.W.3d 650
    , 652 n.8 (Tex. Crim. App. 2015);
    Roberson v. State, 
    420 S.W.3d 832
    , 837 (Tex. Crim. App. 2013); see also Tex. R. App. P.
    47.7(a) (providing that criminal opinions by courts of appeals that are “not designated for
    publication . . . have no precedential value but may be cited with the notation, ‘(not designated
    for publication)’”).
    10
    appellant’s second issue.
    We affirm the trial court’s judgment.
    /s/     Frances Bourliot
    Justice
    Panel consists of Justices Christopher, Bourliot, and Zimmerer.
    Do Not Publish — TEX. R. APP. P. 47.2(b).
    11