James Edward Tubbs v. State ( 2020 )

NUMBER 13-19-00295-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JAMES EDWARD TUBBS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 12th District Court
of Walker County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Chief Justice Contreras
Appellant James Edward Tubbs was convicted of unlawful possession of a firearm
by a felon, a third-degree felony, see TEX. PENAL CODE ANN. § 46.04, and possession with
intent to deliver four grams or more but less than 200 grams of methamphetamine, a first-
degree felony. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d). The jury
found two enhancement paragraphs true and sentenced appellant to concurrent prison
terms of forty years and life. Appellant argues the trial court erred by (1) allowing evidence
of extraneous offenses and (2) not instructing the jury on the law of self-defense,
necessity, or defense of others. We affirm. 1
I. BACKGROUND
Count I of the indictment alleged that appellant was convicted of felony delivery of
cocaine in 1997 and that he intentionally or knowingly possessed a firearm on or about
July 1, 2016, which was before the fifth anniversary of his release from parole supervision
following the earlier conviction. See TEX. PENAL CODE ANN. § 46.04. Count II alleged that
appellant, on or about July 1, 2016, knowingly possessed, with intent to deliver, four
grams or more but less than 200 grams of methamphetamine. See TEX. HEALTH & SAFETY
CODE ANN. § 481.112(d). Finally, the indictment alleged that appellant had previously
been convicted of two other felony drug charges in 1996 and 2005.
At trial, Sergeant John Davila of the Walker County Sheriff’s Department testified
that he received “Crime Stopper tips and phone calls” from “people in the area of
[appellant’s] residence” in Riverside saying that there was “a lot of traffic going in and out”
and “drug dealing.” To investigate the tips, police set up a surveillance camera across the
street from appellant’s residence, a trailer where appellant lived with his elderly mother.
The surveillance footage showed “different vehicles throughout the day coming for a short
period of time and leaving”; Davila said this indicated to him that drugs were being sold
there.
Davila engaged Pamela Jo Smith, who knew appellant, as a confidential informant
1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to an order issued
by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001.
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to make controlled drug purchases from appellant. A video recording of one such
purchase on June 22, 2016, was entered into evidence as State’s Exhibit 31. 2 According
to Davila’s testimony, the video shows that Smith asked to buy a quarter ounce of
methamphetamine from appellant, and appellant then drove Smith and two others in his
car to Trinity to pick up the drugs. On the way to Trinity, appellant dropped Smith off at a
restaurant and came back after a “short period” of time. The group then returned to
appellant’s trailer, at which point appellant produced “from his clothing” several bags of
methamphetamine and asked Smith to choose one.
Davila testified that Smith made another controlled purchase of a quarter ounce of
methamphetamine from appellant on June 29, 2016. He stated that a quarter ounce is
about seven grams, and each gram contains around four to eight doses, so “once you get
into the multi-gram level, you’re probably talking about a dealer.” Davila testified, over
defense counsel’s objection, that during the June 29 controlled purchase, appellant
“brought up that he had a 12[-]gauge shotgun in the house and if anybody tried to rob
him, basically how bad he was going to kill them.”
Based on the two controlled purchases, police obtained a warrant to search the
trailer. In executing the search warrant on July 1, 2016, police discovered a black shotgun
next to appellant’s bed in his bedroom. Additionally, police found three pill bottles
underneath the hood of a riding lawnmower located behind the trailer. One pill bottle
contained marijuana, one contained a small amount of cocaine, and one contained thirty-
four small baggies of methamphetamine, weighing over four grams in total.
2 The video recording is not included in the record before this Court. Nevertheless, because the
parties agree as to the content of the video, we need not request supplementation of the record. See TEX.
R. APP. P. 34.6(d); see also TEX. R. APP. P. 34.6(e)(1) (“The parties may agree to correct an inaccuracy in
the reporter's record, including an exhibit, without the court reporter’s recertification.”).
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Appellant was convicted of the charged offenses and this appeal followed.
II. DISCUSSION
A. Admission of Evidence
By his first issue, appellant argues the trial court erred in admitting State’s Exhibit
31, the video recording of the controlled drug purchase from appellant on June 22, 2016.
We review a trial court’s decision on the admissibility of evidence for an abuse of
discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). Under this
standard, we will uphold the decision of the trial court unless the ruling falls outside the
zone of reasonable disagreement. Id.
At trial, defense counsel objected to the exhibit on grounds that it was irrelevant
and unfairly prejudicial. Evidence is relevant if “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” TEX. R. EVID. 401. Irrelevant evidence is
inadmissible. Id. Further, “[t]he court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” TEX. R. EVID. 403. 3 In a Rule 403 analysis, the court must balance
(1) the inherent probative force of the proffered item of evidence along with
(2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
3 In his brief, appellant also cites Texas Rule of Evidence 404(b), which provides that evidence of
a defendant’s prior crimes or bad acts is not admissible to show character conformity but may be admissible
for another purpose, such as to show “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” However, appellant does not point to any location in the record
wherein trial counsel objected on Rule 404(b) grounds, and we find none. Accordingly, we may not reverse
the trial court’s ruling on that basis. See TEX. R. APP. P. 33.1(a)(1).
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amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); see Lopez v.
State, 288 S.W.3d 148, 156 (Tex. App.—Corpus Christi–Edinburg 2009, pet. ref’d).
“Under Rule 403, it is presumed that the probative value of relevant evidence exceeds
any danger of unfair prejudice.” Hammer v. State, 296 S.W.3d 555, 568–69 (Tex. Crim.
App. 2009). “The rule envisions exclusion of evidence only when there is a clear disparity
between the degree of prejudice of the offered evidence and its probative value.” Id. A
trial court’s decision on a Rule 403 objection is given “an especially high level of
deference.” Robisheaux v. State, 483 S.W.3d 205, 218 (Tex. App.—Austin 2016, pet.
ref’d).
On the charged drug offense, the State had the burden to show that appellant
possessed and intended to deliver the methamphetamine which police found on July 1,
2016. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). To do that, the State offered
Exhibit 31, which showed appellant selling methamphetamine from his residence several
days before the subject methamphetamine was recovered from the curtilage of
appellant’s property. This evidence was relevant because it tended to make
consequential facts—i.e., that appellant possessed the drugs and intended to sell them—
more probable than they would have been without the evidence. See TEX. R. EVID. 401.
And, considering the Gigliobianco factors, we cannot conclude that the probative
value of the evidence was substantially outweighed by the danger of unfair prejudice,
confusion, or delay. See TEX. R. EVID. 403. First, the video was inherently strongly
probative as explained above. Second, the State needed this evidence to prove its case
because it did not offer the testimony of Smith, the confidential informant, and there was
no other evidence in the trial record establishing that appellant had sold
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methamphetamine from his residence shortly before the subject methamphetamine was
found by police. We acknowledge that there may have been a slight risk that the jury
would convict appellant based on his sale of the methamphetamine on the video
recording, rather than on the charged offense—i.e., his possession with intent to deliver
on July 1, 2016. However, the trial court properly instructed the jury that, to consider
evidence of extraneous bad acts, it must find beyond a reasonable doubt that appellant
committed those acts, and it may consider such evidence only for purposes of motive,
opportunity, and intent with respect to the charged offense. See TEX. R. EVID. 404(b); Ex
parte Varelas, 45 S.W.3d 627, 631 (Tex. Crim. App. 2001) (“[A] jury should be instructed
that they are not to consider extraneous act evidence unless they believe beyond a
reasonable doubt that the defendant committed that act.”). Appellant points to nothing in
the record indicating that the jury failed to follow the court’s precise instructions. See
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (“[W]e generally presume
that a jury will follow the judge’s instructions.”). 4
Appellant’s first issue is overruled.
B. Jury Instructions
By his second issue, appellant argues that the trial court erred in declining to
instruct the jury on self-defense, necessity, or defense of others. See TEX. PENAL CODE
ANN. §§ 9.22 (necessity), 9.31(a) (self-defense), 9.33 (defense of third person).
Appellant does not cite the correct standard of review for jury charge error in his
4 In arguing that he suffered harm from the admission of State’s Exhibit 31, appellant contends that,
without the exhibit, “the jury would not be able to tie Appellant to the gun” later found in his residence. But
Davila testified that appellant “brought up that he had a 12[-]gauge shotgun in the house” during the June
29, 2016 controlled purchase, which was not part of Exhibit 31. Appellant objected to Davila’s testimony
only on the basis of hearsay, but that objection was overruled, and appellant does not raise an issue
challenging that ruling on appeal.
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brief, 5 nor does he explain whether any defensive instructions were requested in the
charge conference at trial. In arguing that he was entitled to an instruction, appellant
contends there was evidence that he “was a victim of a crime, namely, robbery, when his
home was fired upon,” and “the purpose of the firearm was to protect himself and his
elderly mother.” In support of these arguments, appellant provides record references to
defense counsel’s closing argument at the guilt-innocence phase of trial, but not to any
actual evidence. We conclude the issue has been inadequately briefed. See TEX. R. APP.
P. 38.1(i). In any event, even if there was evidence that appellant was a robbery victim
and sought to protect his mother, there is no suggestion that there was any immediate
threat to appellant such as would entitle him to any of the aforementioned defensive jury
instructions. See Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016) (“Both self-
defense and defense of a third person require that there be a reasonable belief in the
immediate need to act.”). Appellant’s second issue is overruled.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
8th day of October, 2020.
5 Instead, appellant cites two irrelevant cases, Williams v. State, 804 S.W.2d 85, 95 (Tex. Crim
App. 1991) and Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d),
both concerning the “clearly erroneous” standard applicable in Batson challenges. See Batson v. Kentucky,
476 U.S. 79 (1986) (holding that the use of racially discriminatory peremptory challenges violates the Equal
Protection Clause).
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