Procella, Phillip Rogers v. State ( 2013 )

MODIFY and AFFIRM; Opinion issued January 17. 2013.
In The
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No. 05-11-01290-CR
No. 05-11-01291-CR
PHILLIP ROGERS PROCELLA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
I)allas County, Texas
Trial Court Cause Nos. F10-5 1420-P & F10-54196-P
OPINION
Before Justices Murphy and Richter
1
Opinion By Justice Murphy
Phillip Rogers Procella pleaded not guilty to one count of possession with the intent to
deliver between four and 200 grams of cocaine with a deadly weapon in a drug-free zone and one
count of aggravated assault against a public servant with a deadly weapon. See TEx. HEALTH &
SAFETY CODE ANN. § 481.112(d) (West 2010); id. § 481.134(c) (West Supp. 2012); TEx. PENAL
CODE ANN. § 22.02(a)(2), (h)(2)(B) (West 2011). After the jury returned a guilty verdict on both
counts, the trial court sentenced Procella to two concurrent terms of forty years in prison. In two
The Honorable Martin E. Richter. Retired Justice, silting by assignment, The Honorable Joseph Morris was on the panel and participated at
the submission of this case. Due to his retirement from this Court on December31, 2012, he did not participate in the issuance of this Opinion See
TL.x. R. APP. P.41.1(a), (h).
points of error. Procella contends the trial court abused its discretion by allowing one of the State’s
witnesses to testify as an expert witness and by admitting photographs showing another persons
tattoos during the punishment phase of trial. In two additional points ol error, Procella asserts the
judgment in each case should be modified to reflect that the trial court assessed his punishment. We
modify the trial court’s judgments as requested and affirm the udgmcnis as moditied.
I. Admission of Expert Witness Testimony
Procellas first point of error relates only to the drug possession case (No. 05—1 1 -01 290—C RL
Procella complains the trial court erred by admitting the testimony of Joel Wasinger because he was
not qualified to testify as an expert about whether the offense occurred within a drug—tree zone. We
review a trial court’s ruling on the admissibility of expert testimony br an abuse of discretion.
Ti//mw, v. State, 354 S.W.3d 425,435 (Tex. Crim. App. 2011); Cob/c v. State, 330 S.W.3d 253, 272
(Tex. Crim. App. 2010). As with other types of evidentiary rulings, we will uphold the trial court’s
decision as long as it lies within the zone of reasonable disagreement. Til/man, 354 S.W.3d at 435.
A. Background
As charged in the indictment, the State was required to prove Procella committed the
possession offense within a drug-free zone—that is, within “1,000 feet of any real property that is
owned, rented or leased to a school.” specifically James Bowie Elementary School. Proof of the
drug-free zone allegation triggers application of health and safety code subsection 481.134(c), which
increases the minimum punishment for the offense by five years and doubles the maximum fine. See
TEX. HEALTH & SAFETY CODE ANN. § 481. 134(c). Subsection 481 .134(c) does not create a separate
offense; its only effect is to raise the penalty when an enumerated olfense is committed in a
designated place. See Willianis i. State, 127 S.W.3d 442. 445 (Tex. App.—Dallas 2004, pet. rcf’d).
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As part of its proof that the offense took place within a drugfree zone, the State offered
es.hihit 19A, a “map of the area.’’ which was admitted through another witness without objection.
The exhibit wa’ an aerial photograph showin1 the Iocaton of the oliense at 6 I I N. Marsal is Avenue
outlined in yellow, the location of “Bowie Elementary School” at 330 N. Marsalis Avenue outlined
in green. and a red perimeter line drawn out from the school premises: the location of the olfense
was depicted on the exhibit as within the perimeter. The map included a scale, showing that a one—
inch measurement was the equivalent of a distance of 100 feet.
The State also )1
resented the testimony of Wasinger. the geographic information systems
coordinator for Dallas County Public Works. At a hearing held outside the presence of the jury,
Wasinger testihed his job involves making maps, analyzing geographic data, and managing
geographic-related databases. lie stated he (lid not prepare the drug- free zone map for this case. but
he explained how such maps are created using data from the county appraisal district and mapping
software. Procella objected to Wasinger’s proposed testimony, arguing Wasinger should not be
allowed to give opinion testimony because there was no showing of “sufficient background. training.
Ion preparation for this witness to be held as an expert.” He also argued that Wasinger should not
he allowed to testify because “we do not have betbre us the people that set this up, put in play and
prepare(l for court. The trial court oven’uled the objection and allowed Wasinger’ s testimony to be
presented to the jury.
During his testimony, Wasinger referred to exhibit 49A and testified that the red perimeter
line on the exhibit represented a thousand-foot boundary. 1-Ic explained that the perimeter was “a
product of taking the parcel in the middle, the elementary school, and telling the [mapping j software
we want to go a thousand feet in all directions around it and {the softwarej draws a line.” Wasinger
then simply testified that anything inside the boundary line was within 1 .000 feet of any property
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owned by that school. The jury found by special issue that Procella committed the drug of tense
w jib in I ,1 )0() feet ol a school.
B Analysis
In ruling on the admissibility of expert testimony, a trial court must determine that (1) the
expert is qualified as an expert by reason of his knowledge. skill, experience, traimng. or education;
(2) the subject matter of the testimony is an appropriate one for expert testimony: and (3) admitting
the expert testimony will assist the factfinder in deciding the case. S’e Tux. R. EvID. 702; VeIn v.
State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527 (Tex.
Crim. App. 2006). These conditions are commonly referred to as qualification, reliability, and
relevance, VeIn. 209 S.W.3d at 131. The conditions raise distinct questions and issues, and an
objection based on one of the conditions does not preserve error as to another .See Id. (stating
qualifications of expert witness are “distinct from reliability and relevance and, therefore, should he
evaluated independently”); Sliaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston 114th Dist.j
2010. pet. ref’d): Turner i’. Slate. 252 S.W.3d 571. 584 n.5 (Tex. App.—Houston 114th I)ist. I 2008.
pet. rcf’d) (objection based on expert’s qualifications did not preserve reliability issue).
Procella argues on appeal that the trial court abused its discretion by allowing Wasinger to
testify as an expert about the drug-free zone because the trial court failed to conduct a proper inquiry
into whether Wasinger had the necessary qualifications. He also raises an additional argument about
the reliability of Wasinger’s expert opinion, arguing there was no testimony to establish that the data
behind the drug-free zone map was accurate. But the reliability of Wasinger’ s opinion based on “the
data behind the map” was not raised to the trial court: rather Procella’s objection covered
qualification only. Procella’s reliability complaint therefore was not preserved for our review. See
TEx. R. App. P.33.1(a); Vela. 209 S.W.3d at 131; Turner, 252 S.W.3d at 584 n.5.
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Regarding his complaint about Wasinger’s qualifications. Procella asserts “there was very
ittl iiiquii S lillo his hR Lu mmd itid Ii niling oi iii it V islngel s b tLLgl ound ss is cenhi ii to (hR
drug-free zone map evidence,” The State responds that the trial court properly exercised its
discretion hecause Wasinger adequately explained his specialized experience with maps and
mapmaking of this type. The State also asserts that because “GIS measuring techniques are known
to the courts to he widely used and are generally considered sufficiently reliable in foundation’ it
is “questionable whether Wasinger was required to testify as an expert” Although the State cites
no Texas case for iii is proposition, we will assume expert testimony was required to assist the jury
in understanding the drug-free zone map. our opinion, however, should not be construed as a
determination on the merits of whether expert testimony is required to show an offense occurred
within a drug-free zone. See, e.g., TEx. HEALTH & SAFETY CODE ANN. § 481 .135(d)(i), (2) (State
may rely “on any other evidence or testimony to establish any element of an offense for which
punishment is increased under Section 481.134,” including using or introducing a map or diagram
admissible un(ler the rules of evidence): Youn,ç’ r. State. 14 S.W.3d 748.754 (Tex. Crim. App. 2000)
(concluding maps produced by city planning department and officer testimony was sufficient forjury
to find offenses occurred within zone; maps were “probative proof’ of drug-free zone boundaries);
Perez r. Staie, 332 S.W.3d 700. 703—04 (Tex. App.—Amarillo 2011. pet. ref’d) (satellite photo
depicting area and testimony of engineer and officers that offense took place within drug-free zone);
Haagensen v. State, 346 S.W.3d 758, 764—65 (Tex. App.—Texarkana 201 1. no pet.) (officer
testimony that drug transaction occurred within zone based on map obtained from city hail and by
using Google Earth).
Under rule 702, a person may be qualified to testify as an expert “by knowledge, skill,
experience. training, or education.” mx. R. EvID. 702. The qualification inquiry involves two parts:
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whether the witness has a sufficient backruuiid in a particular I ield and whether that background
goes to the very matter on which he will give an opmion. Vela, 209 S,W.3d at 131. “Because the
possible spectrum of education. ‘skill. and training is so wide, a trial court has great discretion in
determining whether a witness POSSeSSeS sufficient qualifications to assist the jury as an expert on
a specihc topic in a particular case.” Rodgers, 205 S.W.3d at 527—28. The focus is on the ‘lit”
between the subject matter at issue and the expert’s familiarity with it. ¼’Ia, 209 S.W.3d at 133.
Was inger testified regarding his background that he has been in the GIS industry for twenty
wars and has spent most of those twenty years analyzing geographic data. He began his career
working for a software company that manufactured a GIS application. He also has taken
independent courses in (]IS and computer science. Wasinger testified he has made several drug-free
zone maps like exhibit 49A. stating “lilt’s something that any of us can do.” He also described the
map-making process, explaining that a drug-free zone map is created on a computer by overlaying
Cartesian planes of latitude and longitude and using plot lines maintained by the county appraisal
district. He described it as a “simple process.” He explained that either he or one of the other GIS
technicians takes the two locations in question. With the school as the center point, and using the
mapping software, a thousand-foot perimeter is drawn around the lines for that piece of property.
The location of the crime then is indicated on the map to see if it lies within the thousand-foot
perimeter. Regarding his specific opinion in this case, Wasinger testified that the distance from the
school grounds to the location of the offense “was less than a thousand feet.”
Wasinger’s familiarity with the mapping software and how drug-free zone maps are created
using the software put context to exhibit 49A. Based on his review of the map, he testified the
offense occurred within the drug-free zone. We conclude the trial court acted within the zone of
reasonable disagreement in determining that Wasinger’s training, education, and experience
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regarding nmpinaking and anal viing C IS data qual i lied him to offcr the opinion that Procella
committed the dmg offense within the drug—free zone. Although Procella, on appeal, crIticizes the
accuracy of the underlyini data from which the map was produced. this is 1101 a valid ohjection to
Wasinger’s qualifications. Importantly, Procella did not object to the admission of the map at trial.
Accordingly, we overrule Procella s lirsi point ol error.
IL Admission of Photographs
Procella argues in his second point of error, which relates to both cases, that the trial court
abused its discretion when it admitted three exhibits during the punishment phase of trial. The
challenged exhibits are State’s exhibits 76. 77. and 78, which are photographs of gang-related tattoos
on another person, Keithian Brown, who was found with Procella at the scene of the offenses and
also arrested.
The photographs of Brown’s tattoos were taken during his interview with a police detective
shortly after he was arrested. Exhibit 76 showed a tattoo on Brown’s back depicting the words
“Rolling 60s”: exhibit 77 showed a second tattoo on what appears to be Brown’s arm with the
initials “RSC” presented in Old English script: exhibit 78 is too dark to discern a particular tattoo,
and there was no specific testinlony describing that tattoo. Detective Barrett Nelson, who had spent
fourteen years working with the gang unit of the Dallas Police Depamirnent, testified that the tattoos
shown in the photographs represented a criminal street gang called the “Rolling 60 Crips” based in
the southern Oak Cliff area of Dallas. Procella objected, based on relevance, to the admission of the
photographs and to any testimony about Brown. The trial court overruled Procella’s objections and
stated that it would “only consider the relevant portions of the photographs” and not consider the
testimony if it was “not linked to Mr. Procella in any way.”
Procella argues on appeal that photographs of Brown’s tattoos have no bearing on his cases
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and the State was attempt ilig to puwe he as a gang member through the pictures ol gang tattoos
on another person.” He further claims that his forty-year sentence indicates he was “ultimately
pumshed flr I3rown’ s had character,’’
We need not decide, however, whether admission of the photographs of Brown’s tattoos
during the punishment phase was error. Even assuming any error occurred. we conclude such error
did not affect Procella’ s substantial rihts and would have provided nothing more than a slight
influence on the trial court’s punishment determination, if any influence at all, See TEX, R. App. P.
44.2(b) (providing we must disregard any “error, defect. irregularity, or variance that does not affect
substantial rights”). The record before us shows that Procella’s membership in a gang, and
specifically. the Rolling 6() Crips, was not proven through the pictures of Brown’s gang tattoos.
Rather, testimony was admitted without objection to Procella’s own affiliation with the Rolling 60
Crips. Nelson explained during his testimony the various criteria, including self-admission and
tattoos, police use to determine whether someone is a member of a gang. Nelson testified that tattoos
found on members of the “Rolling 60s” are “very prevalent.” When asked to look at the tattoo of
a “60” on the side of Procella’s head. Nelson identified that tattoo as being “very consistent” with
the Rolling 60 Crips. 1-Ic added, “lylou’re not gonna put a 60’ on the side of your head unless
you’re promoting a gang.... To see that, that’s self-admission itself.” Procella got that tattoo while
in jail after being arrested for these offenses. Nelson also testified about the gang’s criminal
activities, which include narcotics, aggravated assault, murders, and car thefts, and provided general
testimony about gang affiliation and the relationship between gang affiliation and drug dealing: he
testified “Itihat’s how gangs survive; they sell narcotics and rob people.” Contrary to Procella’s
assertions that “the Stale focused almost solely on Brown’s gang tattoos,” Nelson’s testimony was
not specific to Brown’s acts or character or otherwise linked to Brown.
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Procella (li(i not oblect to Nelson s testimony related to the “60” tattoo on his head or
Nelson’s identification of that tattoo as being consistent with membership in the Rolling 60 Crips.
In closing, Procella’s counsel agreed that the “I g lang niemhership is not good.” Nor did Procella
object to Nelson’s general testimony related to the criminal activities of the RoIling 60 Crips or the
importance of gang life to drug dealing. Under article 37.07 of the Texas Code of Criminal
Procedure, a trial court has broad discretion to admit evidence the court (leems relevant to
sentencing, including evidence of prior crimes, reputation, character, or the circumstance of the
ollense. Tux. CouECRIM. PROc. ANN. art. 37.07 3(a)( I) (West Supp. 2012): Hayden i’. State, 296
S.W.3d 549, 552 (Tex. Crim. App. 2009), Evidence of membership in or affiliation with a gang,
such as the Rolling 60 Crips, would fall under the type of “bad acts” relevant to sentencing, and
article 37.07 allows the introduction of such evidence to show the defendant’s character. See
Beaslev v, State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); Sierra v. State, 266 S.W.3d 72. 79
(Tec App.—Houston jI st Dist.I 2008. pet. ref’d); see also Ho ‘L.StQte, 171 S.W.3d 295.305 (Tex.
App.—l-louston 114th Dist. 2005, pet. ref’d) (“Even if appellant was no longer affiliated with the
gang at the time of the shooting. evidence that he was a gang member is relevant—and thus
admissible at punishment—because it relates to his character.”).
The trial court had before it evidence of Procella’s own gang membership and evidence of
that gang’s character and reputation. as well as other testimony, upon which to base its punishment
determination. See Doris i’. State, 329 S.W.3d 798, 805 (Tex. Crim. App. 2010); Beasley, 902
S.W.2d at 456—57 (“evidence concerning appellant’s gang membership is relevant because it relates
to his character” and noting that it is not necessary to link the accused to the bad acts generally
engaged in by gang members). ThUS. even if it was error to admit the photographs showing tattoos
on another person, we conclude that error did not have a substantial effect or otherwise influence the
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1 na! cc nut s decision about the appropriate punishment for Procella. We overrule Procella’ s second
p( )iflt Of CII’. r.
III. Modification of the Judgments
in ii is two remaining points ol error. Proud Ia asks this Court to modify the trial court’s
written judgments to reflect that the trial court, not the jury. assessed Procella’s punishment in each
case. The State agrees the judgments should be modified in the manner Procella requests. The
judgment in each case incorrectly recites that Procella’ s punishment was assessed by the “Jury.” The
clerk’s record for each case, however, contains an election of punishment. in which Procella requests
that the judge assess his punishment in the event the jury finds him guilty. In addition, the reporter’s
record shows that the trial court asked Procella if he understood that he elected to have the judge set
punishment rather than the jury; Procella indicated he understood his election.
This Court has the power to correct a clerical error on a judgment to reflect what occurred
in the trial court. as shown by the record. See TEX. R. Api. P. 43.2(b); Biglev v.Staie, 865 S.W.2d
26. 27—28 (Tex. Crim. App. 1993: Asberrv i.. State. 813 S.W.2d 526. 529 (Tex. App.—Dallas 1991,
pet. ref’d) (en hanc). We therefore sustain Procella’s third and fourth points of error and modify the
judgment in each case to reflect that Procella’s punishment was assessed by the trial court.
We affirm the trial court’s judgments as modified.
I I .1 I.I I
/ / i.
MARY MPHY (J
JUSTICE
Do Not Publish
TEx. R. App. P.47
11 1290F.U05
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JUDGMENT
PHILLJP ROGERS PROCELLA, Appellant Appeal from the 203rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05 I 10I 290CR V. F10-5 l420P).
Opinion (lelivered by Justice Murphy,
THE STATE OF TEXAS. Appellee Justice Richter participating.
Based on the Court’s opinion of this date, the trial court’s judgment is NiOI)IFIEI) as
follows:
The “Punishmem Assessed by” is modified to read: “Court.”
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered January 17, 2013.
MARY MPHY I
JUSTICE
Qtnirl if ia15
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JUDGMENT
PHILII P ROGERS PROCELLA, Appellant Appeal from the 203rd Judicial District
Court of Dallas County, Texas. (TrCLNo.
No. 051 L0l291CR V. Fl054l96P).
Opinion delivered by Just ice Murphy.
TIlE STATE OF TEXAS, Appellee Justice Richter participating.
Based on the Court’s opinion of this date. the trial Courts judgment is MOflIFIED as
follows:
The “I->unishment Assessed by” is modified to read: “Court.”
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered January 17, 2013.
, I / ‘
MARY MUHY
JUSTICE
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