Mills, John Billy v. State ( 2002 )

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Opinion issued November 21, 2002

In The

Court of Appeals

For The

First District of Texas

  NO. 01-01-01203-CR

JOHN BILLY MILLS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 28,475-272

O P I N I O N

          A jury convicted appellant, John Billy Mills, of the state jail felony offense of possession of less than one gram of cocaine. The trial court, after finding two enhancement paragraphs true, assessed punishment at 10 years’ confinement. Appellant, in three points of error, asserts the trial court erred (1) by permitting Officer Hines to testify about extraneous acts of misconduct by a third party, (2) by permitting Officer Hines to testify that a third party possessed cocaine, and (3) by improperly dismissing a prospective juror for cause. We affirm.

Statement of Facts

          Officer Hines stopped a car for speeding in a school zone. Officer Hines approached the driver, Doris McKinney, while his partner, Officer Fikes, approached appellant, who was sitting in the passenger seat. When McKinney was retrieving her driver’s license from her purse, Officer Hines observed a “chore boy” (a copper scouring pad considered drug paraphernalia because it is used as filter material in a crack pipe) inside her bag. Officer Hines then returned to his squad car, with McKinney’s identification, to perform a background check.

          During the time Officer Hines was in his patrol car, he observed McKinney standing outside her car and rubbing her fingers together. Officer Hines testified that white powder was falling from her fingers. Officer Fikes then grabbed McKinney’s wrist temporarily until Officer Hines returned to McKinney’s car. The officers completed a field-drug test, which confirmed that the powdery substance was cocaine. McKinney was then arrested for possession of a controlled substance and tampering with physical evidence.

          Thereafter, Officer Hines acquired appellant’s driver’s license and similarly performed a background check. The background check revealed that appellant had two outstanding warrants for his arrest. Appellant was immediately arrested and searched. Officer Hines found a crack pipe in appellant’s right jacket pocket and a can of snuff in his back left pants pocket. The can contained snuff and two brown, stained rocks that Officer Hines believed was crack cocaine. A chemist for the Texas Department of Public Safety later confirmed that the rocks contained cocaine.

Extraneous Acts and Harm Analysis

          Appellant argues, in point of error one, that the trial court abused its discretion when it permitted Officer Hines to testify about the extraneous acts of misconduct by McKinney. Among his objections, appellant asserted that the testimony was irrelevant and, alternatively, that the probative value of Officer Hines’s testimony was substantially outweighed by the danger of unfair prejudice.

          We review a trial court’s decision to exclude evidence under an abuse-of- discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).     An abuse of discretion occurs when the trial court acts without reference to any guiding principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990    ). The standard requires us to uphold a trial court’s decision when that decision is within “the zone of reasonable disagreement.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)  . Generally, evidence of crimes, wrongs, or acts is not admissible to show that a person acted in conformity with that character on the occasion in question. Tex. R. Evid. 404(b).   Such evidence may only be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.

          Here, the trial court, over appellant’s objections, admitted McKinney’s extraneous misconduct as background evidence. There are two types of background evidence: (1) evidence of other offenses connected with the primary offense, referred to as “same transaction contextual evidence”; and (2) general background evidence, referred to as “background contextual evidence.” Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991). The State argued that the evidence was admissible as same transaction contextual evidence to prove appellant knowingly possessed cocaine.

          Extraneous-offense evidence, which is not probative with respect to any fact of consequence to the determination of an action, may still be relevant, and thus admissible, if it creates a context from which the fact finder may more ably make judgments about those other facts that are of consequence to the determination of the charged offense. Kiser v. State, 893 S.W.2d 277, 283 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (citing Mayes, 816 S.W.2d at 85)). Before contextual evidence is admissible under Rule 404(b), it must meet a two-part test. Garcia v. State, 17 S.W.3d 1, 6 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App. 1993)). First, the background evidence must be relevant under Rule 401. Garcia, 17 S.W.3d at 6. “Although the State is permitted to offer evidence of what happened before and after the commission of the offense, the evidence must be relevant to something at issue in the case and not inherently prejudicial.” Id. at 7. Second, if the evidence is relevant, the court must determine whether the evidence fits under one of the exceptions to Rule 404(b). Id.

          We must first determine if McKinney’s extraneous misconduct is relevant to this case. To be deemed relevant, evidence must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence.” Tex. R. Evid. 401. Consequential facts are those having something to do with the ultimate determination of guilt or innocence in a particular case. Mayes, 816 S.W.2d at 84.

          The State argues that McKinney’s extraneous misconduct is relevant because it was an integral part of the same criminal episode that placed appellant under the scrutiny of the police. Ford v. State, 26 S.W.3d 669, 675 (Tex. App.—Corpus Christi 2000, no pet.). We disagree. Instead, we hold that: (1) McKinney’s possession of cocaine does not, by itself, tend to show appellant knowingly possessed the cocaine found on his person; and (2) McKinney’s extraneous misconduct is not a consequential fact from which the trial court could have decided whether appellant was guilty or innocent. Thus, we conclude that the trial court abused its discretion by admitting the evidence.

          Because we conclude that the evidence was not relevant to appellant’s case, we do not reach the question of whether the evidence fits under one of the exceptions to Rule 404(b).

          Having found the evidence inadmissible, we review whether the erroneous admission of evidence caused appellant harm. Error in the admission of evidence is subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Under Rule 44.2(b), the reviewing court is to disregard any error unless it affects appellant’s substantial rights. Tex. R. Civ P. 44.2(b). “A substantial right is affected when the error had a substantial or injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will let a conviction stand if, after examining the record as a whole, there exists a fair assurance that the error did not influence the jury or had but a slight affect. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).

          When an accused is charged with unlawful possession of cocaine, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband; and (2) the accused knew the object he possessed was contraband. See Linton v. State, 15 S.W.3d 615, 619 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

          Appellant argues that the acts of a third party, as described by Officer Hines, were used by the jury to infer that appellant knowingly possessed cocaine. However, the record shows that appellant possessed (1) a crack pipe in his right front jacket pocket, and (2) two crack cocaine rocks in a snuff can located in his back left pocket. We find that, the admission of Officer Hines’s testimony had but a slight effect, if any, in the jury’s determination that appellant knowingly possessed cocaine. Accordingly, appellant’s substantial rights have not been affected, and thus, any error must be disregarded.

          We overrule point of error one.

Qualifying Officer Hines as an Expert

          Appellant argues, in point of error two, that the trial court committed reversible error when it permitted Officer Hines to testify that McKinney possessed cocaine. Specifically, appellant alleges that the State failed to qualify Officer Hines as an expert prior to his testimony. Adopting the harmful-analysis discussion in point of error one, we need not reach appellant’s second point of error, other than to reiterate that any error attributed to Officer Hines’s testimony was harmless.

          We overrule point of error two.

Juror Challenge for Cause

          In appellant’s final point of error, he argues that the trial court abused its discretion by improperly granting the State’s challenge for cause against a prospective juror. Appellant asserts that the trial court erred because the State failed to establish how the prospective juror, Nancy Roman, exemplified a bias or prejudice against the State or any law upon which the State relied.

          A prospective juror may be challenged for cause when she has a bias against or in favor of the defendant. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon Supp. 2002). If a prospective juror is biased as a matter of law, that juror must be excused when challenged, even if she states that she can set aside her bias and provide a fair trial. See Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982). However, it is left to the broad discretion of the trial court to determine first whether bias exists. Id. at 854. Absent an abuse of discretion, we will not disturb the trial court’s ruling on a challenge for cause. See Mooney v. State, 817 S.W.2d 693, 701 (Tex. Crim. App. 1991). The trial court should be given wide latitude because the trial judge is in the best position to gauge the prospective juror’s demeanor and tone of voice. Id.

          We note the following testimony offered by Ms. Roman during voir dire:

STATE:You indicated your husband had been arrested? . . . Is there anything about that that would prevent you from being fair to the prosecution in this case?

ROMAN (Juror):Yes, it would.

STATE:Can you tell me why?

ROMAN (Juror):I just have my doubts about the judicial system now . . . I think a person sometimes—I’ve seen it so many times—that are proven guilty, but yet they’re innocent. And because of the prosecutors—they have a way of putting words in someone’s mouth—and I disagree with that totally.

STATE:And your feelings are apparently very strong?

ROMAN (Juror):Yes, they are.

STATE:And would it be fair to say, then, that they would prevent you from giving the prosecution in this case a fair trial?

ROMAN (Juror):I would not give the prosecution a fair trial.

STATE:And you also indicated that you didn’t think this case should be charged as a felony?

ROMAN (Juror):Yes.

STATE:And so you disagree about the law?

ROMAN (Juror):I think it should be a misdemeanor.

STATE:Would that also prevent you from being a fair juror? That additional fact that you disagree with the law?

ROMAN (Juror):Yes, it would . . . .

          Appellant objected to the trial court’s decision to excuse Ms. Roman for cause. To support his argument, appellant referred to the following effort to rehabilitate Ms. Roman’s testimony:

APPELLANT’S COUNSEL:    If the State proved to you to your satisfaction that Mr.

                                                   Mills was guilty as charged, if they proved it to your

                                                   satisfaction, would you vote him guilty?

ROMAN (Juror):                       If the facts were there and they’ve proved it and they can show proof, yes.

APPELLANT’S COUNSEL:    You can evaluate a police officer’s testimony the same as any other witness, give it—at least from the starting point?

ROMAN (Juror):                       If he’s truthful . . . .

APPELLANT’S COUNSEL:    So, consequently, based on what you believe was truthful police officer testimony, and whatever other evidence, was presented—

ROMAN (Juror):                       Right.

APPELLANT’S COUNSEL:    —if the case was proven to your satisfaction you would vote guilty, is, I think, what you’re telling me; right?

ROMAN (Juror):                       Yes, sir.

APPELLANT’S COUNSEL:    And the flip side of that coin is that if the case wasn’t proven to your satisfaction, would your verdict be not guilty at that point?

ROMAN (Juror):                       Probably so . . . .

APPELLANT’S COUNSEL:    So, it sounds like, even though you have strong feelings, it sounds like, to me, you would be able to follow the law despite the feelings you have?

ROMAN (Juror):                       Yes.

APPELLANT’S COUNSEL:    And, really, that’s the key issue—despite what your

                                                   feelings are—can you still follow the law?

          Appellant argues (1) Ms. Roman stated she would be able to follow the law, (2) Ms. Roman could evaluate a police officer’s testimony in the same manner as anyone else, (3) the State failed to show how Ms. Roman was biased, and (4) the State failed to show what favor Ms. Roman would give to the defense. Thus, appellant concludes that the State failed, as a matter of law, to prove Ms. Roman was biased.

          We grant considerable latitude to the trial judge, who had the opportunity to directly observe the demeanor of the juror. Kemp v. State, 846 S.W.2d 289, 301 (Tex. Crim. App. 1992). The need for deference is especially critical when the reviewing court is faced with a record that demonstrates uncertainty in a juror’s responses. Id. Here, because Ms. Roman vacillated in her responses to questions posed by the State and appellant’s counsel, we will give deference to the trial court’s decision to excuse Ms. Roman, absent a finding of an abuse of discretion. After reviewing all of her testimony, we conclude that the trial court did not abuse its discretion by granting the State’s challenge for cause. Thus, we will not disturb the trial court’s ruling.

          We overrule point of error three.

Conclusion

          We affirm the trial court’s decision.

                                                                        Frank C. Price

                                                                        Justice

Panel consists of Justices Taft, Alcala, and Price.

Justice Taft concurs in the disposition of point of error one and joins the remainder of the opinion.

Do not publish. Tex. R. App. P. 47.