James Conerly v. State

Affirmed and Memorandum Opinion filed July 24, 2008

Affirmed and Memorandum Opinion filed July 24, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00542-CR

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JAMES CONERLY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1079429

M E M O R A N D U M   O P I N I O N

A jury found appellant, James Conerly, guilty of aggravated robbery and sentenced him to twenty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division.  See Tex. Penal Code Ann. ' 29.03 (Vernon 2003).  In his sole point of error, appellant argues the trial court erred in not allowing appellant to introduce two photographs into evidence.  Finding no error, we affirm.

Factual and Procedural Background ^[1]

On August 5, 2006, officers arrested appellant and Ronald Jervis for allegedly robbing Joshua Wilson at gunpoint.^[2] During trial, appellant=s defensive theory was that the encounter between the men was a drug deal that went bad and escalated into a fight, as opposed to an aggravated robbery.  According to appellant, he and Jervis went to the complainant=s home to collect a debt from an ecstasy drug deal, not to rob the complainant.  During trial, appellant attempted to admit two photographs taken in the complainant=s home, which appellant argued supported his defensive theory.  One photograph showed a Scarface poster^[3] hanging in the complainant=s home, and the other photograph showed a human silhouette poster,^[4] which also hung in the complainant=s home.  Appellant claimed the photographs were relevant to appellant=s defensive theory because they helped corroborate the assertion that the complainant and his brother^[5] glorified a lifestyle full of drugs and violence; therefore, this evidence supported the idea the encounter between the four men was a drug deal and not an aggravated robbery.  According to appellant, the photographs helped prove the complainant and his brother=s lack of credibility since the two men identified with and led a life full of guns, violence, drugs, and drug dealing.  In addition, appellant argued exclusion of the photographs violated his constitutional due process right to present a complete defense.

In response, the State argued the trial court should exclude the photographs because they were irrelevant and highly prejudicial. According to the State, the photographs had no probative value as to whether or not appellant committed aggravated robbery.  However, the State claimed if the photographs did have any probative value, the probative value was substantially outweighed by the prejudice.  The State argued simply because a person hangs a movie poster in his house, does not necessarily mean he identifies with the lifestyle the movie portrays.  According to the State, the photographs were too prejudicial because appellant was trying to use them to prove the complainant and his brother were drug dealers, without any other evidence to substantiate the claim.  The State admitted the complainant and his brother used drugs, but argued there was no evidence to support the idea the two were drug dealers.

Ultimately, the trial court excluded the two photographs and did not allow appellant to ask any questions regarding the posters.  The trial court concluded the prejudicial effect of the photographs substantially outweighed the probative value.  Appellant now challenges this decision on appeal.

Discussion

In appellant=s sole issue on appeal, he argues the trial court erred in not allowing appellant to introduce the two photographs into evidence.  Appellant argues the photographs were relevant and their probative value was not substantially outweighed by their prejudicial effect.  Furthermore, appellant argues the exclusion of the photographs was a constitutional violation of his due process right to present a complete defense.

A.      Did the Trial Court Err in Excluding Two Photographs from Evidence?

1.       Standard of Review

An appellate court reviews a trial court=s decision to admit or exclude evidence under an abuse of discretion standard.  Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).  A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.  McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).  Because trial courts are in the best position to decide questions of admissibility, the appellate court should uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement.  Cameron, 241 S.W.3d at 19.  An appellate court may not reverse a trial court's decision regarding the admissibility of evidence solely because it disagrees with the decision.  Id.

As a general rule, evidence is relevant if it has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@  Tex. R. Evid. 401. Evidence that is not relevant is not admissible.  Tex. R. Evid. 402.  Furthermore, the trial court's determination of relevancy will not be reversed absent an abuse of discretion.  Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). 

However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Tex. R. Evid. 403; Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.CHouston [14th Dist.] 2007, pet. filed).  Therefore, upon further objection from the opponent of the evidence based on Rule 403, the trial court must weigh the probativeness of the evidence against the potential for unfair prejudice.  Andrade, 246 S.W.3d at 227 (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990)).  Evidence is unfairly prejudicial when it has an undue tendency to suggest an improper basis for reaching a decision.  Reese, 33 S.W.3d at 240.  In keeping with the presumption of admissibility of relevant evidence, there is a presumption relevant evidence is more probative than prejudicial.  Andrade, 246 S.W.3d at 227 (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)).  The trial court=s ruling whether to exclude evidence under Rule 403 is also measured by an abuse of discretion standard and will not be reversed if the ruling is within the zone of reasonable disagreement.  Id. 

2.       Did the Exclusion of the Photographs Violate Appellant=s Sixth Amendment Rights?

Appellant cites to the United States Supreme Court=s recent opinion in Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006), in support of his argument the trial court=s wrongful exclusion of the evidence was a constitutional violation of his right to present a complete defense.  We disagree.  

In Holmes, the prosecution tried the defendant for battery, rape, robbery, and murder of an 86-year-old woman.  Id. at 321B22, 126 S. Ct. at 1730.  During the trial, the prosecution presented an eyewitness who allegedly saw the defendant near the woman=s home within one hour of the attack.  Id. at 322, 126 S. Ct. at 1730.  The State also produced forensic evidence linking the defendant to the crime to a very high degree of certainty.  Id.  As part of his defensive theory, the defendant sought to introduce evidence that a third party committed the crime.  Id. at 323, 126 S. Ct. at 1730.  However, the trial court excluded the defendant=s evidence pursuant to a state rule prohibiting the admission of evidence of third-party guilt at a criminal trial if the state presented forensic evidence that strongly supported a guilty verdict.  Id. at 323B24, 126 S. Ct. at 1731. 

Ultimately, the Court held the evidentiary rule relied on in the Holmes case was Aarbitrary@ and unconstitutional as applied because it did not rationally serve the end it was designed to promoteBfocusing the trial on central issues by excluding evidence that had only a very weak logical connection to them.  Id. at 329B31, 126 S. Ct. at 1734B35. The Court determined under this state rule, the trial judge did not focus on the probative value or the potential adverse effects of admitting the defense=s evidence of third-party guilt.  Id. at 329, 126 S. Ct. at 1734.  Furthermore, the Court stated the rule, as applied, seemed to call for little, if any, examination of the credibility of the prosecution=s witnesses or the reliability of its evidence.  Id. Essentially, Holmes stands for the proposition that the Constitution prohibits the exclusion of defense evidence under evidentiary rules that are arbitrary, that serve no legitimate purpose, or that are disproportionate to the ends they are asserted to promote.  See id. at 329B31, 126 S. Ct. at 1734B35.

The Texas Court of Criminal Appeals has recognized this same proposition.  In Texas, the improper exclusion of evidence may raise a constitutional violation in two circumstances: (1) when an evidentiary rule categorically and arbitrarily prohibits the defendant from offering relevant evidence that is vital to his defense (essentially the same holding as the Holmes case), or (2) when a trial court erroneously excludes evidence that is vital to the case and the exclusion precludes the defendant from presenting a defense.  Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier v. State, 68 S.W.3d 657, 659B62 (Tex. Crim. App. 2002)).

As a threshold matter, we conclude appellant=s reliance on Holmes is misplaced.  In contrast to the Holmes case, the trial court here excluded the evidence under rule 403, a well-established evidentiary rule.  See Tex. R. Evid. 403.  The rule in Holmes was held to be arbitrary and unconstitutional, as applied, because it did not allow the judge to focus on the probative value or potential adverse effects of the evidence, or allow the judge to examine the credibility or reliability of the witnesses.  Holmes, 547 U.S. at 329B31, 126 S. Ct. at 1734B35. Rule 403, however, allows a trial judge the opportunity to weigh the probative value of the evidence against other factors.  See Tex. R. Evid. 403. Indeed, the Holmes court recognizes the distinction between the constitutional prohibition of the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends they are asserted to promote, and well-established rules, such as rule 403, which permit trial judges the discretion to exclude evidence if its probative value is substantially outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.  Holmes, 547 U.S. at 326, 126 S. Ct. at 1732.  Therefore, this case does not present a situation like that in Holmes where the trial court excluded the evidence under an arbitrary evidentiary rule that categorically prohibited the exclusion of defense evidence.  See id. at 329B31, 126 S. Ct. at 1734B35.

Also, the trial court=s ruling did not effectively preclude appellant from presenting a defense.  During the trial, both the State and appellant presented evidence supporting appellant=s theory, including: (1) Wilson=s and Arredondo=s testimony they used drugs; (2) testimony regarding the drugs and guns found in Arredondo=s apartment; (3) Wilson=s admission that the police never seized the zip ties, sunglasses, duct tape, or ski mask, which were all items Wilson claimed appellant and Jervis had with them to use in the commission of the robbery; (4) Officer Steve Frank=s testimony that Jervis told Frank he and appellant were attempting to collect money for drugs; (5) Officer Frank=s testimony that Jervis told Frank they were attempting to collect the money for 1000 ecstasy tablets; (6) Wilson=s testimony that Jervis asked Awhere are the pills@ during the incident; (7) Officer Frank=s testimony that a drug dog alerted the police to Arredondo=s glove box in his car and to money in Arredondo=s house, which indicated the scent of a controlled substance; (8) the $1,207 in cash found in Arredondo=s apartment and seized by the police; and (9) Arredondo=s testimony that the police seized the cash and filed a petition for forfeiture alleging the money was illegal proceeds from drug sales, which Arredondo failed to contest.  In light of all the additional evidence presented, the photographs would have only Aincrementally@ furthered appellant=s defensive theory.  Thus, appellant=s constitutional right to present a meaningful defense was not violated under this theory either.  See Ray, 178 S.W.3d at 836 (holding exclusion of testimony favorable to appellant did not prevent appellant from presenting her defense because she testified on her own behalf). 

3.       Did the Danger of Unfair Prejudice Substantially Outweigh the Probative Value of the Evidence?

Appellant also argues the prejudicial effect of the photographs did not substantially outweigh their probative value, therefore, the trial court should have admitted the evidence.

Relevant evidence may still be excluded by the trial court under Rule 403 Aif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@  Tex. R. Evid. 403.  When a trial court balances the probative value of the evidence against the danger of unfair prejudice, a presumption exists that favors the evidence=s probative value.  Feldman v. State, 71 S.W.3d 738, 754B55 (Tex. Crim. App. 2002).  The relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include the following: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent=s need for the evidence to prove a fact of consequence.  State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); Andrade, 246 S.W.3d at 228. Using these factors as a guide, if the record reveals the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, then we should conclude the trial court abused its discretion in excluding the evidence.  See Reese, 33 S.W.3d at 241; Andrade, 246 S.W.3d at 228 (citing Montgomery, 810 S.W.2d at 393)..

a.       Analysis

The term Aprobative value@ refers to the inherent probative force of an item of evidence; that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation.  Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).  Photographs of a Scarface poster and a human silhouette poster hanging in the victims= house have little, if any, probative value as to whether appellant committed aggravated robbery. 

Second, we examine whether the evidence has the potential to impress the jury in an irrational but nevertheless indelible way. Rule 403 does not exclude all prejudicial evidence.  Andrade, 246 S.W.3d at 228B29.  Virtually all evidence a party offers will be prejudicial to the opponent=s case, or the party would not offer it.  Casey, 215 S.W.3d at 883. Instead, Rule 403 focuses only on the danger of unfair prejudice and the tendency to tempt the jury into finding guilt or innocence on grounds apart from proof of the offense charged.  Andrade, 246 S.W.3d at 229. Appellant argues the photographs should have been admitted because they help to show the complainant and his brother=s admiration for a lifestyle of crime and drugs, which helps support the idea appellant went to the complainant=s house to collect drug money and not to commit robbery.  However, the photographs presented in such a manner would be prejudicial to the State in their potential to suggest to the jury that a person who hangs a movie poster in his house automatically identifies with the lifestyle portrayed in the film.  We find the photographs, as appellant would have presented them, could potentially impress the jury in an irrational way.  See Reese, 33 S.W.3d at 242 (finding a photograph of the murder victim and her unborn child lying in a casket offered during the punishment phase had an emotional impact that suggested the jury=s decision would be made on an emotional basis and not on the basis of the other relevant evidence introduced at trial).

Third, we look at the time needed to develop the evidence.  The time involved in the introduction of two photographs is minimal and unlikely to distract the jury from considering the charged offense.  See Andrade, 246 S.W.3d at 229 (holding the time involved in the introduction of a photograph was minimal). 

Fourth, we determine the proponent=s need for the evidence to prove a fact of consequence. The Court of Criminal Appeals has pointed out three subparts when assessing the proponent=s need for the evidence: (1) does the proponent have other available evidence to establish the fact of consequence the evidence is admissible to show; (2) if so, how strong is that other evidence; and (3) is the fact of consequence related to an issue that is in dispute?  Reese, 33 S.W.3d at 242.  Based on the record in this case, appellant introduced a substantial amount of additional probative evidence to help support his defensive theory.  As described in detail in section A(2) above, both the State and appellant presented evidence supporting appellant=s theory that the complainant and his brother were drug dealers, that they identified with a life full of guns and violence, and that the incident was a drug deal gone bad, not a robbery.  Therefore, appellant=s need for the evidence was minimal. 

After evaluating the above four factors and balancing the prejudicial nature of the photographs against its probative value, we conclude the prejudicial effect of the photographs substantially outweighed the probative value.  We cannot say the trial court=s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.  Thus, the trial court did not abuse its discretion in excluding the photographs.  We overrule appellant=s sole issue on appeal.

Conclusion

Having overruled appellant=s sole issue on appeal, we affirm the trial court=s judgment.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 24, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  Because of the nature of appellant=s issue, we find it unnecessary to set forth a detailed account of the facts and circumstances surrounding the offense with which he was charged.

^[2]  The State tried appellant and Jervis separately.

^[3]  The poster portrayed a picture from the 1983 Scarface movie starring Al Pacino.  The movie tells the story of a Cuban immigrant in Miami, Florida who becomes one of the largest cocaine dealers in the area. The movie portrays a world of drugs and violence.

^[4]  The poster was the type commonly used at law enforcement target ranges.

^[5]  Appellant lived with his brother Stephen Arredondo. Arredondo was home asleep the night of the alleged robbery.  Arredondo woke up when he heard loud noises in the living room, so he went to the living room to see what was happening.  As Arredondo approached the living room, he saw appellant and Jervis attacking Wilson.  Arredondo joined the fight and helped Wilson fight off appellant and Jervis.  Arredondo testified on behalf of the State.