David Kip Gillmore v. State of Texas ( 2010 )

Opinion filed August 5, 2010
In The
Eleventh Court of Appeals
__________
No. 11-09-00062-CR
__________
DAVID KIP GILLMORE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 13553
MEMORANDUM OPINION
The jury convicted David Kip Gillmore of engaging in organized criminal activity and
assessed his punishment at fifty-five years confinement. We affirm.
I. Background Facts
In January 2007, the Mineral Wells/Palo Pinto County City-County Narcotics Unit
received a complaint about a possible clandestine methamphetamine lab. They investigated and
discovered a methamphetamine lab and drugs on the property of Gregory Don Gillmore,
appellant’s brother. Several weeks later, the Walgreens pharmacy in Mineral Wells contacted
the Department of Public Safety to report suspicious purchases of pseudoephedrine by three
individuals. The DPS checked these names against pharmacy logs at other nearby pharmacies
and determined that a pattern of suspicious behavior existed. The DPS determined that, from
October 2006 through August 2007, this group purchased 283 boxes of pseudoephedrine. They
were also observed purchasing items commonly used in the manufacture of methamphetamine
including starter fluid and dry ice. Ultimately, Gillmore and five other individuals were charged
with engaging in organized criminal activity by conspiring to manufacture methamphetamine.
When Gillmore was arrested, police found a baggie that field-tested positive for
methamphetamine, several boxes of Sudafed, and a box of lithium-type batteries.
II. Issues
Gillmore does not challenge the sufficiency of the evidence but does challenge his
conviction with five other issues grouped into two categories. Gillmore contends first, that the
trial court erred by overruling his objection to the State’s challenge for cause of two
veniremembers, and second, by admitting evidence of extraneous acts.
III. The State’s Challenges for Cause
The State challenged several veniremembers for cause. Gillmore objected to two of these
challenges, contending that neither had made an unequivocal statement supporting a challenge
for cause. He alternatively requested the opportunity to examine them further or for two
additional peremptory challenges. The trial court overruled his objections and denied his
requests for alternative relief.
A. Standard of Review.
The State may challenge a veniremember for cause if he or she has a bias or prejudice
against any phase of the law upon which the State is entitled to rely for conviction or
punishment. TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2) (Vernon 2006). The test is whether
the bias or prejudice would substantially impair the veniremember’s ability to carry out the oath
and instructions in accordance with the law. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim.
App. 2002). But before a prospective juror may be excused for cause, the law must be explained
to them, and they must be asked whether they can follow that law regardless of their personal
views. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). The proponent of a
challenge for cause has the burden of establishing that the challenge is proper. Id. The
proponent does not meet this burden until the proponent shows that the veniremember
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understood the requirements of the law and could not overcome his or her prejudice well enough
to follow the law. Id.
We review a trial court’s ruling on a challenge for cause with considerable deference
because the trial court is in the best position to evaluate a veniremember’s demeanor and
responses. Feldman, 71 S.W.3d at 744. We reverse a trial court’s ruling on a challenge for
cause only if a clear abuse of discretion is evident. Colburn v. State, 966 S.W.2d 511, 517 (Tex.
Crim. App. 1998). When a veniremember’s answers are vacillating, unclear, or contradictory,
we accord particular deference to the trial court’s decision. Id.
B. Did the Trial Court Err?
At trial, the State objected to Veniremember Turner because he could not objectively
evaluate the testimony of a witness who received a plea bargain and to Veniremember Downey
because she said she had problems being fair and impartial. In its brief, the State merely alleges
that the total voir dire record makes clear that both veniremembers ―stated an inability to be a
fair and impartial juror.‖
We have reviewed the entire voir dire and find no instance in which Veniremember
Turner indicated an inability to evaluate the testimony of a witness who received a plea bargain
or otherwise expressed an inability to be fair and impartial. Veniremember Downey was
troubled by an individual receiving preferential treatment for turning on others, considered
punishment without rehabilitation ineffective, and believed that everyone who participated in a
criminal transaction should be treated equally. Even if we assume that any of these statements
constituted a bias or prejudice sufficient to support a challenge for cause, she was not instructed
on the law or asked whether she could follow that law regardless of her personal views. Cf.
Gardner, 306 S.W.3d at 295 (explaining the predicate for striking a veniremember for cause).
Because Veniremember Downey was not afforded this opportunity, the trial court erred when it
overruled Gillmore’s objections.
C. Was Gillmore Harmed?
Absent a showing of constitutional error, which Gillmore does not allege, his rights are
affected only by harm caused by jurors who served on the case, not by those excused from
service. Jones v. State, 982 S.W.2d 386, 391-94 (Tex. Crim. App. 1998) (an improperly granted
challenge for cause is not constitutional error – as long as the juror was not struck for
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discriminatory reasons – thus, the defendant’s substantial rights are unimpaired unless the error
deprived him of a lawfully constituted jury).
Gillmore argues that he was harmed because the State effectively received two additional
peremptory challenges and because, if he had received the two additional challenges he
requested, he would have used those on veniremembers who served on the jury. After the jury
was seated and instructed, Gillmore told the trial court that, if allowed, he would have struck
Veniremembers Lee and Tunnell. However, he did not advise the trial court nor does he explain
to this court why their service deprived him of a lawfully constituted jury. He has, therefore,
failed to show harm, and Issue One is overruled.
IV. Extraneous Acts Evidence
Gillmore next complains about the admission of extraneous acts evidence. He argues in
Issues Two and Three that the trial court improperly admitted evidence without the State first
providing reasonable notice as required by TEX. R. EVID. 404(b) that he threatened an alleged
coconspirator and purchased over-the-counter drugs. In Issue Four, Gillmore argues that the trial
court erred by admitting this evidence without proof beyond a reasonable doubt that he
committed the extraneous act. In Issue Five, Gillmore complains that the extraneous offense
evidence was more prejudicial than probative.
A. Standard of Review.
We review the trial court’s ruling on the admissibility of evidence under an abuse of
discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). This requires
appellate courts to uphold a trial court’s admissibility decision when that decision is within the
zone of reasonable disagreement. Id.
B. Reasonable Notice.
The Friday afternoon before trial started, the State provided Gillmore with notice that it
intended to introduce evidence that he had threatened Andy Self, a witness. The State
represented to the trial court that it did not learn of the evidence until Friday morning.1 The State
also introduced evidence that Gillmore purchased pseudoephedrine after he was indicted. The
record does not indicate if the State provided specific notice of the pseudoephedrine purchases,
1
Self later testified that he entered into an agreement with the State on Friday in which he agreed to testify against
Gillmore in exchange for an eight-year deferred adjudication sentence.
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but this evidence came in through business record affidavits that were filed months before trial
started.
Whether notice is reasonable depends upon the facts and circumstances of each
individual case. Owens v. State, 119 S.W.3d 439, 443-44 (Tex. App.—Tyler 2003, no pet.).
Even short notice may be reasonable when the State immediately informs defense counsel of the
evidence upon its discovery. See Patton v. State, 25 S.W.3d 387, 391-92 (Tex. App.—Austin
2000, pet. ref’d) (upholding the admission of a prior conviction where the prosecutor first
learned of it two days before trial and gave immediate notice thereafter). However, courts have
also held that providing notice the Friday before trial starts was unreasonable. See Neuman v.
State, 951 S.W.2d 538, 540 (Tex. App.—Austin 1997, no pet.).
We need not determine if the State provided reasonable notice in this case because
Gillmore did not file a motion for continuance. Martin v. State, 176 S.W.3d 887, 900 (Tex.
App.—Fort Worth 2005, no pet.) (defendant must seek a continuance to preserve a complaint
about insufficient notice). Because Gillmore’s complaint was not preserved, Issues Two and
Three are overruled.
C. Evidence of Threats.
Gillmore complains in Issue Four that the trial court erred by admitting evidence that he
threatened Self and purchased pseudoephedrine because there was insufficient evidence that he
did so, because these were not extraneous acts, and because this evidence was more prejudicial
than probative. The State contends that these contentions have been waived because of counsel’s
statement during the charge conference:
I’ll also ask that the record reflect that during the preliminary charge
conference we had in the Court’s chambers, we agreed again, as a matter of trial
strategy, to withdraw our earlier objections to evidence of purchases of
pseudoephedrine made by many of the members of the alleged conspiracy after
the date of the indictment. And we are, again, doing that as a matter of trial
strategy; and we ask the Court to accept our withdrawal of that objection.
The State is correct that Gillmore has waived any complaint about the admission of
pseudoephedrine purchases, and we overrule Issues Four and Five to this extent. But the State,
unfortunately, offers no argument in support of the trial court’s admission of evidence that
Gillmore threatened Self.
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When Gillmore first raised the admissibility of threat evidence, the trial court deferred a
ruling and indicated a concern that this evidence might be more admissible in a punishment
phase than in the guilt/innocence phase, but it suggested that the evidence might be admissible as
a consciousness of guilt. The Texas Court of Criminal Appeals has held that criminal acts that
are designed to reduce the likelihood of prosecution or conviction are admissible under Rule
404(b) as showing consciousness of guilt. Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim.
App. 1994). These acts include threats against witnesses, Rodriguez v. State, 577 S.W.2d 491,
492-93 (Tex. Crim. App. 1979), and their families, Brown v. State, 657 S.W.2d 117, 119 (Tex.
Crim. App. 1983).
Self testified that Gillmore threatened him twice. The first time occurred when Self
delivered some Sudafed. Self testified that Gillmore threatened to kill him if he ever told
anyone. The second time occurred while they were riding together and Gillmore started driving
95 to 100 miles per hour. Gillmore then asked Self if he was going to testify against him. Self
said no, and Gillmore warned him that testifying could get him or his family killed.
The trial court did not abuse its discretion in concluding that this was evidence of a
consciousness of guilt. Nor did the trial court abuse its discretion by concluding that the
probative value of this evidence outweighed its prejudice. Unfair prejudice refers to an undue
tendency to suggest a decision on an improper basis. Rogers v. State, 991 S.W.2d 263, 266 (Tex.
Crim. App. 1999). Self’s testimony described threats that were directly connected to the
offenses for which Gillmore was indicted. Issues Four and Five are overruled.
V. Conclusion
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
August 5, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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