Freddie Lee Gilmore v. State ( 2010 )

Opinion issued March 18, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00260-CR

FREDDIE LEE GILMORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1168358

MEMORANDUM OPINION

          A jury convicted Freddie Lee Gilmore of possession with intent to deliver a controlled substance, cocaine, between four and 200 grams.  See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(d) (Vernon Supp. 2009).  After Gilmore pleaded true to the allegations in two enhancement paragraphs, that he had two prior felony convictions, the trial court assessed punishment at twenty-five years’ confinement.  On appeal, Gilmore contends that the trial court erred by instructing the jury orally and in the charge that they could consider evidence found inside the raided house, but unconnected to Gilmore, as “background contextual” evidence but could not use the evidence to infer Gilmore’s guilt.  We hold that Gilmore failed to preserve any error for review regarding the two oral instructions because he did not object to them in the trial court.  We further hold that trial court did not commit egregious error under Almanza by including such an instruction in the written charge.  We therefore affirm.

Background

On May 23, 2008, Houston Police Department officers executed a search warrant for narcotics at Gilmore’s uncle’s house.  When the officers arrived, Gilmore and two other men, who were standing in front of the house, began walking away from the police car toward the backyard.  When the police raid van pulled up, one man ran into the house while Gilmore and Wilbert Citizens ran into the backyard.  Officers Berg and Crawford, who were in the police car, ran after Citizens and Gilmore.  While they were running, Citizens threw a bag of crack cocaine to the ground and then surrendered to the officers when he was unable to climb the backyard fence.  Gilmore, however, continued running through the yard back toward the front of the house.  While he was running, he tossed a bag containing twenty-four grams of crack cocaine onto the ground.[1]  After climbing a fence, Gilmore ran into Officer Holland, who arrested him.

Officer Berg testified that, inside the house, one individual was attempting to dispose of crack cocaine by throwing it down a drain pipe.  The trial court admitted, without objection, two pictures depicting the pipe and the cocaine found inside of it.  The prosecutor then showed Officer Berg a series of photographs taken of the inside of the house, and offered these pictures into evidence.  Defense counsel objected on the grounds that the pictures were not relevant to the charges against Gilmore and no evidence that Gilmore resided at the house or observed anything occurring inside the house existed.  The prosecutor responded that Gilmore was charged with possession and possession with intent to deliver, and the pictures indicated that the house was a “crack house” and that “everyone at the scene [was] involved in a drug dealing enterprise.”  The trial judge stated that he thought the pictures were “background contextual evidence necessary for a full understanding of the case” and admitted the pictures.  Defense counsel did not request a limiting instruction, nor did he request a running objection regarding the relevancy of this evidence.  The pictures showed $700 and a .38 caliber pistol located inside the house.  The State then offered another picture depicting cocaine residue located on a plate and the kitchen countertops.  Gilmore did not object to the admission of this picture.

After the prosecutor finished questioning Officer Berg about how much cocaine the officers had found in various locations in and around the house, the trial court gave the following unrequested oral instruction to the jury:

Ladies and gentlemen of the jury, evidence that you’ve heard regarding other narcotics found in the house, the actions of the co-defendant and the interior of the house is background contextual evidence.  It is not to be taken as evidence of guilt against this Defendant.  Do you all understand that?  It can only be used to fill in the blanks to put this case in context and no evidence of guilt.  Are we clear?

Gilmore did not object to this instruction.

          The trial court included a substantially similar instruction in the jury charge:

You are further instructed that any evidence that any witness has committed any crime was admitted before you for the purpose of aiding you, if it does aid you, in putting the allegations in context, and you will not consider the same for any other purpose.

Gilmore did not request the inclusion of this instruction, nor did he object to this instruction.  During the State’s closing argument, the prosecutor stated that:

And as the Judge said in his Jury Charge, this is all contextual for when you weigh whether or not the Defendant is guilty of delivery.  It is not exactly evidence of his guilt of delivery, but as we talked about in voir dire, circumstantial evidence in the context that you’re surrounded in and your actions in that context can be weighed and used against him when you’re considering whether or not this Defendant is just as guilty as everybody else in that house of the manufacturing and the delivering of crack cocaine to the community.

Defense counsel objected on the grounds of improper argument and began to clarify that the jury had been advised to only consider the evidence for contextual purposes.  The trial court sustained the objection and stated:  “There is an instruction that background contextual evidence is to be used for that purpose and that purpose only.  It cannot be used to infer guilt to the Defendant.”  Gilmore also did not object to this oral instruction.

Discussion

          Gilmore contends that the trial court’s oral limiting instruction and written instruction in the charge allowed the jury to hear evidence of “other crimes and bad conduct that reflected on [Gilmore’s] character in a negative manner.”  Gilmore complains only of the trial court’s instructions; he does not contend that the trial court erroneously admitted the evidence.  At trial, Gilmore did not object to the admission of the pictures of the cocaine in the drain pipe or the cocaine residue on the plate and kitchen countertops.  Therefore, regarding this evidence, Gilmore presents no error for review.  Tex. R. App. P. 33.1(a)(1)(A).

Gilmore objected to the admission of the pictures depicting the $700 in cash and the pistol, solely on relevancy grounds.  He did not lodge a Rule 404(b) extraneous offense objection to the evidence.  A relevancy objection “does not preserve error concerning a Rule 404[b] extraneous offense claim.”  Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993).  Thus, Gilmore cannot argue on appeal that this evidence constitutes inadmissible character evidence because he did not complain of it in the trial court.

          The trial court gave three limiting instructions instructing the jury to consider the evidence of other narcotics and the contents of the interior of the house solely as “background contextual evidence” and not to use this evidence to infer Gilmore’s guilt.  The trial court gave its first oral instruction at the end of Officer Berg’s direct testimony.  Neither Gilmore nor the State requested this instruction, and Gilmore did not object to it. The trial court gave an almost identical oral instruction during the State’s closing argument, after sustaining a defense objection on improper argument grounds.  Gilmore did not object to this oral instruction either.  We therefore hold that Gilmore did not preserve any error in connection with the oral instructions for appellate review.  Tex. R. App. P. 33.1(a)(1)(A).

Gilmore further contends that the trial court erred by including a “background contextual evidence” instruction in the charge.  When we review a jury charge, we must first determine whether error exists, and if the trial court did err, we must then determine whether the error was harmful.  See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).  If, as here, the defendant did not object to the charge error, we will reverse the conviction only if the error constitutes “egregious harm.”  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

When the trial court admits evidence for a limited purpose, upon request by the defendant, the court “shall restrict the evidence to its proper scope and instruct the jury accordingly.”  Tex. R. Evid. 105(a).  If the defendant does not request a limiting instruction at the time the evidence is admitted, the trial court “has no obligation to limit the use of that evidence later in the jury charge.”  Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001) (“[T]he plain language of Rule 105(a) seems to place the relevant timing for a limiting instruction request at the moment the evidence is admitted.”); see also Tex. R. Evid. 105(a) (“[I]n the absence of [a limiting instruction] request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.”).  If the jury can only consider the evidence for a particular purpose, “then it must do so from the moment the evidence is admitted.  Allowing the jury to consider evidence for all purposes and then telling them to consider that same evidence for a limited purpose only is asking the jury to do the impossible.”  Hammock, 46 S.W.3d at 894. Once the trial court admits the evidence without a limiting instruction, it is part of the general evidence and can be considered for all purposes.  Delgado, 235 S.W.3d at 251; Hammock, 46 S.W.3d at 895; Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (“A failure to request a limiting instruction at the time evidence is presented renders the evidence admissible for all purposes and relieves the trial judge of any obligation to include a limiting instruction in the jury charge.”).

Here, the State initially offered six pictures of the interior of the house, including pictures showing the $700 in cash and the pistol.  Defense counsel objected on relevancy grounds, arguing that the pictures were not “relevant to what Mr. Gilmore is charged with” and no evidence that Gilmore resided at the house or saw what happened inside existed. The trial court opined that the pictures were “background contextual evidence necessary for a full understanding of the case” and the court overruled Gilmore’s objection and admitted the pictures.  At this point, the trial court did not instruct the jury that these pictures could only be considered for contextual purposes and could not be considered to infer Gilmore’s guilt, and defense counsel did not request such a limiting instruction.  The trial court did not limit the jury’s consideration of this evidence until the end of the State’s direct examination of Officer Berg, when it gave the following unsolicited instruction:

Ladies and gentlemen of the jury, evidence that you’ve heard regarding other narcotics found in the house, the actions of the co-defendant and the interior of the house is background contextual evidence.  It is not to be taken as evidence of guilt against this Defendant. Do you all understand that?  It can only be used to fill in the blanks to put this case in context and no evidence of guilt.  Are we clear?

Because Gilmore did not request a limiting instruction on this evidence, the jury could consider the pictures of the interior of the house for all purposes, and thus the trial court’s later oral and written limiting instructions were not necessary.  See Hammock, 46 S.W.3d at 895 (“Because the evidence in question was admitted for all purposes, a limiting instruction on the evidence was not ‘within the law applicable to the case,’ and the trial court was not required to include a limiting instruction in the charge to the jury.”); see also Martin v. State, 176 S.W.3d 887, 899 (Tex. App.—Fort Worth 2005, no pet.) (holding extraneous offense evidence initially admitted for limited purpose became admissible for all purposes when defendant failed to timely request limiting instruction); Prescott v. State, 123 S.W.3d 506, 515–16 (Tex. App.—San Antonio 2003, no pet.) (holding same).

          The Hammock line of cases stands for the proposition that the trial court is not required to give a limiting instruction in the charge if the defendant does not timely request such an instruction at the admission of the evidence.  See Hammock, 46 S.W.3d at 895; Williams, 273 S.W.3d at 230; Delgado, 235 S.W.3d at 254 (“[T]he trial judge had no duty to include [a limiting instruction] in the jury charge for the guilt phase because appellant failed to request one at the time the evidence was offered.”).  These cases do not prohibit the trial court from including a limiting instruction in the charge even when the evidence is admissible for all purposes and even though the defendant does not request such an instruction. We therefore hold that although the trial court was not required to give a limiting instruction regarding the pictures of the interior of the house and the evidence of other narcotics, the trial court did not commit egregious error by instructing the jury that they could consider the evidence only for “background contextual” purposes.

Conclusion

Gilmore did not object to the two oral limiting instructions given by the trial court, and thus he failed to preserve any error for review regarding these instructions.  Gilmore also did not request a limiting instruction after the admission of the pictures of the interior of the house and evidence of other narcotics, and therefore this evidence was admissible for all purposes.  As such, the trial court was not required to include a limiting instruction in the jury charge; however, it did not commit an egregious error under Almanza by including an instruction limiting the jury’s consideration of the evidence to “background contextual” purposes.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do Not Publish.  Tex. R. App. P. 47.2(b).

---

[1] Officer Berg testified that the cocaine weighed twenty-four grams on the night it was recovered from the scene.  A month later, the chemist recorded the cocaine’s weight at 17.4 grams.