Willie Ramsey v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-01-183 CR ____________________

WILLIE RAMSEY, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 82548

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O P I N I O N

A jury found Willie Ramsey guilty of felony marijuana possession, and assessed his punishment at ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

In the two issues, Ramsey contends the trial court erred in admitting two of the State's exhibits, a firearm and ammunition. Ramsey maintains the exhibits were evidence of extraneous offenses not alleged in the indictment and that their admission was prejudicial and likely contributed to his conviction. Ramsey relies on Texas Rules of Evidence 401, 402, and 404(b).

The State does not argue that the exhibits were other than extraneous offense evidence, but rather contends Ramsey either waived or failed to preserve any error regarding the introduction of the gun and ammunition as exhibits. ⁽¹⁾ We agree.

"An objection should be made as soon as the ground for objection becomes apparent." Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). In addition, a party must object each time inadmissible evidence is offered, or request a running objection. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Any error is cured where the same evidence comes in elsewhere without objection. Id.

The vehicle in which Ramsey was riding as a passenger was stopped during a "drug interdiction" operation. Officers found 5.34 pounds of marijuana in the vehicle. And wedged between the two front seats of the car, they found a loaded gun.

In his opening statement, the prosecutor said the case was about marijuana, a gun, and the dangers associated with drug trafficking. Defense counsel did not object to the State's opening, but rather countered with an explanation that the gun was not illegal, was not concealed, but instead was a licensed handgun. Defense counsel further conceded that Ramsey had possessed marijuana at the time of the stop but asserted the evidence would show there was no probable cause for the traffic stop and the weight of the marijuana was not as much as that alleged by the State.

Gary Porter, an officer assigned to the Jefferson County Narcotics Task Force, explained the "drug interdiction" work of the task force on Interstate 10 as being its main job - stopping the flow of illegal narcotics from the Houston area up through the east coast. Porter testified that weapons often were encountered in the stops. But not often did the task force officers find loaded guns that could be "grabbed." When the prosecutor asked whether guns were commonly used by narcotics traffickers, Ramsey's counsel objected that "[t]here is no gun charge here." The trial court overruled the objection. Porter then testified that drug traffickers often carry firearms to protect themselves from other drug dealers and to protect their money. Ramsey's counsel again objected:

I'm going to object to the admission of any evidence regarding an extraneous offense of possession of a firearm or unlawfully carrying a weapon. And . . . the revolver has been placed on the prosecution's desk in plain view of the jury and this is going to prejudice the jury regarding some extraneous offense that the Defendant was never given notice of though we filed formal motions requesting ten day notice of any extraneous offense.

The trial court overruled the objection.

When the video tape of the arrest (but not the audio portion), was being played for the jury, the following dialogue between the prosecutor and Porter occurred:

[State's attorney]: Did anyone know about a gun being in the car at this point?

. . . .

[State's attorney]: . . . My question is: In that four minutes did [Ramsey] ever indicate to anybody that there was a loaded .38 sitting right next to him?

[Porter]: He did not. He did not indicate until they - he was asked.

. . . .

[State's attorney]: . . . [Ramsey] is being taken out of the car; it that correct?

[Porter]: That's correct.

[State's attorney]: The gun is still sitting there between the seats; is that correct?

[Porter]: Right.

. . . .

[State's attorney]: . . . Are you looking at the gun at that point, Gary?

[Porter]: I was looking at the point where I had found it.

. . . .

It really concerned me as to where the gun was at. The normal factor, you know, people won't leave guns right there when they're stopped by the police. They'll try to, you know, disassociate themselves with them and I was very concerned my life would have been in danger had [other officers] not been there.

. . . .

I think there was a significant chance had I not had some people with me that my life would have been in danger and they may have used a firearm.

Defense counsel did not object during this testimony, but when the gun was offered as an exhibit through Porter's testimony, defense counsel again objected on "extraneous offense" grounds and was overruled by the trial court. In describing how he found the gun, Porter, without drawing an objection, explained that the gun was stuck in the crease between the center console and the driver's seat, and was accessible to both individuals in the car.

When the ammunition was tendered during Porter's testimony, defense counsel again objected on "extraneous offense" grounds, and was overruled by the trial court.

Porter further testified, without objection being raised, that part of the danger of his job was encountering guns, but not often were the guns in the position that this one was in. Also, the gun was tested and was found capable of firing.

John Calloway, an undercover officer with the Texas Department of Public Safety, was riding with Officer Porter on the evening Ramsey was arrested. Calloway testified that Officer Tibbits was the officer near the gun when it was discovered. Calloway also testified that the majority of individuals who are stopped with weapons will try to shove it down in the seat or put a rag over it, and it is not uncommon for the gun to be loaded. No objection was made by defense counsel. In cross examination, Calloway was asked whether he was aware that the narcotics task force was attempting to return the gun to the Ramsey family. Calloway disavowed such knowledge.

Chris Tibbits, an officer with the Texas Department of Public Safety, was also with Officer Porter on the night of Ramsey's arrest. Defense counsel did not object to any of Tibbits's testimony on extraneous offense grounds. According to Tibbits, approximately four minutes into the stop, Tibbits asked Ramsey if he had any weapons in the vehicle. Ramsey said he did. Ramsey started to reach for the gun and the officers told him not to touch it. Tibbits identified the gun tendered as an exhibit as the gun that was in Ramsey's car. The gun was wedged in between the two front seats. It was loaded. When asked whether his and Calloway's presence that night assisted Officer Porter, Tibbits further testified that "there's no doubt in my mind that our presence there that night saved, you know, a shooting incident - prevented a shooting incident." On cross examination, Tibbits also disclaimed any knowledge that the task force had offered to return the gun to the Ramseys.

While defense counsel objected several times to Porter's testimony on extraneous offense grounds, he did not request a running objection nor did he make any extraneous offense objections to the testimony of Calloway and Tibbits. Thus, the error of admitting the exhibits was cured. See Ethington, 819 S.W.2d at 858. Ramsey's issues are overruled. Accordingly, we affirm the jury's verdict and sentence.

AFFIRMED.

   PER CURIAM

Submitted on May 3, 2002

Opinion Delivered May 8, 2002

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1.

Alternatively, the State maintains any error regarding the admission of the exhibits was harmless because, without objection, the jury heard testimony concerning: the gun, Ramsey's potential intent to use it, his status as a "drug dealer/trafficker," and his concession of the crime charged.