Paul D. Smith v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PAUL D. SMITH,                                                 )

                                                                              )     No.  08-05-00018-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     282nd District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# F-0448191-JS)

                                                                              )

O P I N I O N

Paul D. Smith appeals his conviction for murder.  In a single issue, he argues that the trial court committed reversible error by admitting testimony regarding the extraneous offense of drug use--smoking crack cocaine.  We affirm.

On January 12, 2004, Appellant was at an apartment complex visiting his cousins, Charles Lark and Mack Hall.  They drank beer, used crack cocaine, and watched pornographic and horror movies.  About 9:30 p.m., Debra Tumlinson, who lived below the victim=s apartment, heard a loud Athumping or throwing around@ noise coming from somewhere in the apartment complex. Then she heard a woman scream, A[h]e=s trying to kill me; he=s trying to kill me.@ She called 911 and then went outside to see what was happening.  There were other neighbors also outside.  Ms. Tumlinson testified that Appellant was standing on the second floor balcony and he asked her if she had heard the noises.  He then went inside his cousin=s apartment.

Taydren Moore lived across the hall from the victim on the second floor of the apartment complex.  That night, Mr. Moore was watching wrestling on the television with his girlfriend and his brother.  While watching wrestling, he heard someone scream Ahelp me, he=s trying to kill me.@ Shortly after the first scream, he heard another scream.  When he heard his neighbors talking, he went outside.  Mr. Moore stated that after talking to his neighbors, he returned to his apartment to tell his brother to stay inside until the police arrived.  As he was leaving his apartment to return downstairs, he witnessed Appellant leaving the victim=s apartment.  Appellant asked if Mr. Moore had Aheard it, too?@  When police officers arrived on the scene and located the victim, Mr. Moore informed an officer that he had seen Appellant leaving from her apartment.

Orlando Hernandez was also a resident of the apartment complex and lived on the third floor.  Mr. Hernandez was watching a basketball game in his apartment when he heard people downstairs saying that someone was asking for help.  He went outside and his neighbors asked him if he had heard anything. Mr. Hernandez stated that he had not heard anything and returned to his apartment.  Sometime thereafter, he went back outside and down the stairs.  As he was going down the stairs, he also saw Appellant leaving the victim=s apartment.

Officer Shannon Murray and his partner Barry Maxwell, both of the Dallas Police Department, were dispatched to the apartment complex on the night of January 12, 2004.  Officer Murray stated that upon arriving at the apartment complex, he noticed Appellant between the second and third floor of the building and the Asecond [Appellant] saw our squad car, just [like] a >deer in the headlight= look and turned around and ran to the third floor.@  After talking to witnesses, Officer Murray and his partner proceeded to the third floor as Appellant was exiting his cousin=s apartment.  Officer Murray stated that he noticed that Appellant was sweating profusely, Alike I=ve never seen before, ever@ and that was unusual because it was the middle of January.

Officer Murray and his partner were given permission to enter Mr. Lark=s apartment to make sure no one inside was injured.  Officer Murray testified that he saw a woman=s Apurse or a wallet@ spread open on the couch inside the living room. Officer Murray stated that Mr. Lark claimed that the purse/wallet belonged to his cousin.  After determining that the scream had not come from the apartment of Mr. Lark, Officer Murray and his partner began knocking on other doors.  After checking all of the apartments on the third floor, Officer Murray and his partner proceeded to the second floor.  Someone from the apartment complex, although Officer Murray could not remember who, directed him to the apartment of Spiwe Mtemaringa.

Officer Murray and Officer Maxwell knocked on Ms. Mtemaringa=s door but received no answer.  Officer Murray then tried the door and found it unlocked.  Upon entering the apartment of Ms. Mtemaringa, Officer Maxwell located an individual on the floor who appeared to be injured.  Officer Maxwell then called for backup and an ambulance.

After clearing Ms. Mtemaringa=s apartment, both officers proceeded to the third floor and handcuffed Appellant and Mr. Lark.  Officer Murray testified that as he was leading Appellant down the stairs to the squad car, Appellant saw Ms. Tumlinson and told her A>[o]h, that white bitch, she=s never liked me,=@ and A>[i]t=s all right, I=ll be back.  This ain=t my first fucking rodeo.=@ The officers returned to Ms. Mtemaringa=s apartment to check for vital signs and determined that she had no pulse.  Ms. Mtemaringa had been stabbed thirteen times and bore defensive wounds to both her hands and arms.

During the guilt/innocence phase of the trial, Appellant objected to any testimony by either Mack Hall or Charles Lark regarding his use of crack cocaine prior to the commission of the offense.  At a hearing held outside of the presence of the jury, Appellant=s trial counsel argued that the probative value of the evidence of crack cocaine use by Appellant prior to the commission of the crime was substantially outweighed by the danger of unfair prejudice.  The State argued that the evidence was offered to prove intent, motive, and opportunity.  The trial court overruled Appellant=s objection and both Mr. Hall and Mr. Lark testified.  The jury ultimately found Appellant guilty of the offense of murder.  Appellant was sentenced to confinement for life in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $10,000.

Standard of Review

We review a trial court=s decision to admit or exclude evidence pursuant to Rule 403 under an abuse of discretion standard.  Robbins v. State, 88 S.W.3d 256, 262 (Tex.Crim.App. 2002), citing Montgomery v. State, 810 S.W.2d 372, 391-93 (Tex.Crim.App. 1991)(Opin. on reh=g).  We give the trial court wide discretion and latitude in its decision and will not reverse an evidentiary ruling as long as it is within the zone of reasonable disagreement.  Robbins, 88 S.W.3d at 262.  A trial court=s ruling on admissibility should not be disturbed simply because we might decide a question differently than the trial judge. Montgomery, 810 S.W.2d at 391. 

In his sole issue, Appellant claims the trial court committed reversible error by admitting  testimony, over the objection of Appellant=s trial counsel, of extraneous offenses or bad acts during the guilt/innocence phase of the trial.  Specifically, Appellant complains of evidence introduced through two witnesses regarding crack cocaine use prior to the commission of the charged offense.^[1]

As a preliminary matter, the State argues that Appellant=s trial counsel was required to object under both Rule 403 and Rule 404(b) in order to properly preserve this issue for our review.  We disagree. While we agree that by making only a Rule 403 objection, Appellant has waived his relevance complaint, we do not agree that he has also waived his Rule 403 complaint.  See Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997)(by making only Rule 403 objection, appellant waived relevance complaint).

Additionally, the State argues that Appellant has failed to preserve error because he did not object each and every time evidence of his use of crack cocaine was proffered.  We disagree.  We do recognize that in most instances, failure to object to proffered evidence each time it is offered effectively waives that complaint on appeal.  Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991).  However, in this case Appellant first objected to the evidence outside of the presence of the jury.  When a defendant challenges the admissibility of evidence outside the presence of the jury and the trial court overrules a defendant=s objection, he need not renew that objection when the same evidence is later presented before the jury.  Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003); Ethington, 819 S.W.2d at 858; see also Welch v. State, 993 S.W.2d 690, 694 (Tex.App.‑-San Antonio 1999, no pet.).

The Texas rules of evidence prohibit the use of extraneous offense evidence to prove character conformity.  See Tex.R.Evid. 404(b).  However, such evidence may be admissible if it has relevance apart from character conformity.  Tex.R.Evid. 404(b); Montgomery, 810 S.W.2d at 387. Evidence which logically serves such purposes as Aproof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident@ is relevant beyond proving character conformity.  See Montgomery, 810 S.W.2d at 387; Tex.R.Evid. 404(b).

Although Appellant has waived any relevance complaint under Rule 404(b), evidence of drug use prior to the commission of a crime may be relevant under Rule 404(b) as tending to show a motive for the commission of the offense.  Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App. 1999)(no abuse of discretion in determination that extraneous offense evidence of defendant smoking cocaine prior to murder admissible to prove motive); Etheridge v. State, 903 S.W.2d 1, 10 (Tex.Crim.App. 1994)(extraneous offense of drug use admissible to show motive for murder: to obtain money to buy drugs); Massey v. State, 826 S.W.2d 655, 657-58 (Tex.App.‑-Waco 1992, no pet.)(evidence that defendant was smoking crack cocaine prior to robbery admissible to show motive).

Even though evidence is relevant, it may still be excluded when its probative value is substantially outweighed by its unfair prejudicial effect.  See Tex.R. Evid. 403; Montgomery, 810 S.W.2d at 387.  If a proper objection is made based on Rule 403, the trial court is required to conduct a balancing test.  Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998); Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997)(holding trial court has no discretion as to whether to conduct balancing test under Rule 403). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.  See Allen v. State, 108 S.W.3d 281, 284 (Tex.Crim.App. 2003), cert. denied, 540 U.S. 1185, 124 S. Ct. 1405, 158 L. Ed. 2d 90 (2004), citing Jones v. State, 944 S.W.2d 642, 652‑53 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997).  Only unfair prejudice provides a basis for exclusion of relevant evidence.  See Montgomery, 810 S.W.2d at 389.  Unfairly prejudicial means evidence has Aan undue tendency to suggest that a decision be made on an improper basis.@ Reese v. State, 33 S.W.3d 238, 240 (Tex.Crim.App. 2000), citing Montgomery, 810 S.W.2d at 389.

A trial court=s ruling in conducting a balancing test under Rule 403 must be measured against the relevant criteria of a Rule 403 inquiry.  Montgomery, 810 S.W.2d at 393.  The relevant criteria include:  (1) the inherent probativeness of the evidence, that is, how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable‑‑a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other evidence has to impress the jury Ain some irrational but nevertheless indelible way;@ (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. See Montgomery, 810 S.W.2d at 389‑90.

First, the Afact of consequence@ in this case was the murder of Ms. Mtemaringa.  Evidence of Appellant=s drug use serves to make that Afact of consequence@ more probable by providing a possible motive for its commission.  Further, the State presented strong evidence that Appellant did in fact use crack cocaine prior to committing the offense.  Both Mr. Hall and Mr. Lark, each related to Appellant, witnessed him smoking crack cocaine.  Also, Mr. Lark testified that when Appellant returned to his apartment, he gave him twenty dollars with which to purchase additional crack cocaine. This testimony is particularly probative of Appellant=s motive.  Therefore, the first factor weighs in favor of the State.

Second, the testimony concerning Appellant=s use of crack cocaine prior to the commission of the charged offense had little potential to impress the jury in an irrational and indelible way.  The details concerning Appellant=s drug use were relatively innocuous.  In light of the charged offense and the other evidence presented, evidence of Appellant=s drug use would have little potential to move the jury to convict Appellant on an improper basis.  Thus, this factor also weighs in favor of admitting the extraneous act into evidence.

Third, the State spent very little time developing the evidence such that the jury=s attention would be diverted from the charged offense.  Specifically, only two witnesses testified as to Appellant=s drug use.  The first witness was Mr. Charles Lark, Appellant=s first cousin.  The State first asked Mr. Lark Awhat did y=all do when you got back to your apartment?@  To which Mr. Lark responded, A[s]at and drank and smoked a little crack . . . .@  The State then asked Mr. Lark approximately five more questions concerning Appellant=s drug use.  Cumulatively, the testimony by Mr. Lark concerning Appellant=s drug use constituted approximately two pages in a record of over six hundred pages.  In addition to Mr. Lark=s testimony, the State asked Mack Hall, who was also in the apartment until he left to purchase more beer, about Appellant=s drug use.  Mr. Hall stated that on the night in question, he witnessed Appellant smoking crack cocaine.  Consequently, this factor also weighs in favor of the State.

Finally, we review the States need for the evidence.  In this case, the State presented substantial physical evidence from which a jury could determine Appellant was the individual who committed the charged offense.  Appellant was positively identified by two eyewitnesses leaving Ms. Mtemaringa=s apartment at some point after residents heard her scream.  A butcher knife manufactured by the same company as the knife missing from a butcher block located in Ms. Mtemaringa=s apartment was found in Mr. Lark=s kitchen drawer.  Genetic samples taken from this knife were tested.  The test results confirmed that the sample contained DNA from both Appellant and Ms. Mtemaringa.  A broken knife was also found in Mr. Lark=s garbage can.  On the knife were traces of blood containing Appellant=s DNA.

Additionally, a blood-stained shirt and blood-stained shoes belonging to Appellant were removed from Mr. Lark=s apartment.  Ms. Mtemaringa=s DNA was present on both the shirt and the shoes.  A witness for the State testified that after comparing shoe prints left at the scene with the soles of Appellant=s shoes, he could conclude that the prints were made by a shoe from the same manufacturer, but could not positively identify Appellant=s shoes as the ones leaving the print.  Although Appellant=s drug use may have been probative of motive, the State had little need for this evidence in light of the substantial evidence pointing to Appellant=s guilt.  Accordingly, this factor weighs in favor of Appellant.

However, after considering all of the factors, we conclude the trial court=s decision that the probative value of the extraneous offense evidence was not substantially outweighed by the danger of unfair prejudice did not fall outside the zone of reasonable disagreement.  Although the admission of an extraneous offense often has a prejudicial effect, the evidence in this case did not result in any unfair prejudice to Appellant.  Therefore, we find that the trial court did not abuse its discretion in allowing the jury to hear the testimony concerning Appellant=s drug use.

Even if we were to find that the trial court abused its discretion in admitting evidence of Appellant=s drug use, we fail to see how the evidence would undermine the verdict in this case.  Ordinarily, error in the admission or exclusion of evidence is not constitutional. Arzaga v. State, 86 S.W.3d 767, 776 (Tex.App.-‑El Paso 2002, no pet.).  We generally disregard

non-constitutional error unless a Asubstantial right@ of the appellant is affected.  Tex.R.App.P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002).

A substantial right of the appellant is affected when the error has a substantial and injurious effect upon the jury=s verdict.  See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).  We should not reverse a criminal conviction because of non-constitutional error if we have fair assurance that the error did not influence the jury, or had but a slight effect.  See Morales, 32 S.W.3d at 867.  In other words, absent Agrave doubt@ that the result was substantially influenced by the complained-of error, we should treat the error as harmless.  See Burnett, 88 S.W.3d at 637.

In making this determination, we consider the entire record, including the jury instructions, the parties= theories of the case, and even closing arguments. Arzaga, 86 S.W.3d at 776. Important factors a court should consider in conducting a harm analysis include:  (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained-of error.  See Motilla v. State, 78 S.W.3d 352, 356-58 (Tex.Crim.App. 2002).  We note that overwhelming or substantial evidence of a defendant=s guilt plays a significant role in our analysis. See id. at 359; see also McClenton v. State, 167 S.W.3d 86, 93 (Tex.App.‑-Waco 2005, no pet.).

In the instant case, the testimony by Charles Lark and Mack Hall concerning Appellant=s drug use was relatively brief and unrelated to a determination of guilt, other than providing a possible motive for the commission of the offense.  The testimony concerning drug use by Appellant consisted of little more than Appellant had been smoking crack cocaine prior to the murder and the amount used.  There was additional testimony by Mr. Lark that at some point after the murder occurred, Appellant returned to his apartment with twenty dollars allegedly seeking to purchase additional crack cocaine.  The testimony was neither inflammatory or emotionally charged, misleading or confusing such that a jury would be moved from a Astate of nonpersuasion to one of persuasion as to the issue in question.@ Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000).

There was substantial evidence introduced from which a rational jury could have concluded that Appellant was responsible for the death of Ms. Mtemaringa.  Appellant was identified by two separate eyewitnesses leaving Ms. Mtemaringa=s apartment shortly after neighbors heard a woman scream.  Ms. Mtemaringa=s DNA was found on items removed from Mr. Lark=s apartment and Appellant was seen returning to Mr. Lark=s apartment after leaving Ms. Mtemaringa=s apartment.  Specifically, Ms. Mtemaringa=s DNA was found on a shirt and shoes belonging to Appellant.

The State elicited the complained-of testimony from two witnesses in approximately six separate questions during the guilt/innocence phase of the trial, each briefly addressing Appellant=s use of crack cocaine during the period proceeding the commission of the offense.  The State did not place any undue emphasis on the testimony either when elicited or during closing.  During closing arguments, the State mentioned drug use only once when it asked rhetorically if Appellant may have gone Adown to rob her to get more money for drugs?@  Finally, the trial court instructed the jury not to consider the extraneous offense evidence for any purpose other than determining motive, intent, or opportunity in connection with the offense charged in the indictment.

Considering the complained-of evidence in light of the record as a whole, we conclude that the testimony of the two witnesses concerning Appellant=s drug use had little effect, if any, on the jury=s decision to convict Appellant of murder. Put another way, we have more than a Afair assurance that the error did not influence the jury or had just a slight effect@ and that Appellant would have been convicted of the charged offense had the evidence of his drug use not been introduced.  See Motilla, 78 S.W.3d at 360.  Because Appellant=s substantial rights were not affected, we conclude that any error in admitting evidence of Appellant=s drug use was harmless and must be disregarded.  Appellant=s sole issue is overruled.

Having overruled Appellant=s sole issue, the judgment of the trial court is affirmed.

June 22, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

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^[1] Appellant also states that the trial court erred by admitting the evidence of crack cocaine use because Asuch evidence was not included in the state=s notice of Extraneous Offenses.@  Appellant did not brief this issue.  Even if Appellant had fully briefed this issue, he did not bring this complaint to the attention of the trial court by a timely request, objection, or motion when the State sought to introduce the evidence at trial.  See Tex.R.App.P. 33.1(a)(1).