Anthony Jamall Johnson v. State

Affirmed as Reformed, Affirmed, and Memorandum Opinion filed August 16,
2018.
In the
Fourteenth Court of Appeals
NO. 14-17-00312-CR
NO. 14-17-00313-CR
ANTHONY JAMALL JOHNSON, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause Nos. 1507537 & 1507538
MEMORANDUM OPINION
Appellant Anthony Jamall Johnson was convicted by jury of two felony
offenses: possession of at least 80 and less than 4,000 abuse units of controlled
substance 25I-NBOMe with the intent to deliver (cause number 1507537) and
possession of controlled substance methamphetamine weighing more than 4 and less
than 200 grams with the intent to deliver (cause number 1507538). Appellant was
sentenced to fifteen years of confinement for each offense, to run concurrently.
Appellant brings four issues: (1) the trial court abused its discretion in denying
appellant’s motion to suppress the drugs; (2) the trial court abused its discretion in
admitting evidence related to appellant’s extraneous conduct during both the
guilt/innocence and punishment phases; (3) there was legally insufficient evidence
linking appellant to the drugs to prove possession; and (4) the trial court’s judgment
in cause number 1507537 misstates the jury verdict and should be reformed. We
reform the judgment in cause number 1507537 and otherwise affirm. We affirm the
judgment in cause number 1507538 in its entirety.
I. BACKGROUND
Appellant was indicted for felony possession with intent to deliver two
controlled substances—(1) at least 80 and less than 4,000 abuse units of 25I-
NBOMe1 and (2) methamphetamine weighing more than 4 and less than 200
grams—alleged to have been committed on or about January 25, 2016.
On January 25, 2016, at approximately 4:30 a.m., Officer M. Wilson with the
Houston Police Department, responded to a 911 possible-burglary-in-progress call
from a residence on Dragonwick Drive. Appellant’s mother, Lisa Johnson, was
outside the residence “frantic” and “scared.” Johnson told Wilson that she had been
inside when she heard what she thought was someone trying to get into the house.
Johnson heard the noises coming from “[h]er son’s bedroom.” Her son goes to the
house “every day” but was not there at the time. Johnson ran out the back door
without locking it, exited the gate on the side of the house, got into her car, drove
away and parked in front of her neighbor’s house. She called 911 from her car.
1
25I-NBOMe is a trade name for the chemical compound “4-Iodo-2,5-dimethoxy-N-(2-
methoxybenzyl)phenethylamine.” Tex. Health & Safety Code Ann. § 481.1021(a)(2)(B) (West
2017).
2
Johnson told Wilson she saw a black male wearing a jacket trying to get into her
son’s bedroom window.
Other officers arrived and set up a perimeter. Wilson went to the back of
house and checked the window Johnson suspected someone had been trying to enter.
Wilson smelled marijuana through the slightly open window. When he moved the
blinds aside, Wilson saw a “bottle of Promethazine” or “syrup.” After the K-9 unit
arrived, Wilson entered the house with the K-9 officer and the K-9 dog. They
checked all the rooms to make sure there was no one inside. When they entered
what Johnson said was her son’s bedroom, Wilson saw: a towel on the floor under
the door to “block the smell” of weed; a gun propped up against the wall; an open
dresser drawer containing two guns; and an open safe containing marijuana. There
were multiple narcotics “laying out” on top of the safe.
Wilson informed Johnson that they did not find anyone inside but they saw
“drugs and guns” in plain view. Wilson asked for her consent to search the house.
Wilson explained the consent form to her, and Johnson read and signed it. The
search of appellant’s bedroom yielded another gun (in the closet), as well as “pill
bottles with his name and like prescription medicine.” There was men’s clothing
and multiple pieces of mail addressed to appellant at the residence. Officers also
located clear plastic bags and a scale. The officers collected the drugs and guns.
There were no drugs or guns anywhere else in the house except appellant’s bedroom.
After performing a computer search, Wilson was able to pull up appellant’s “real
name and a [driver’s license] picture and address to this house.”
In April 2016, felony arrest warrants were issued for appellant. On April 28,
2016, as HPD officers conducted surveillance on the Dragonwick residence,
appellant was observed leaving the house in a vehicle. Officer I. Frost performed a
traffic stop and executed the warrants on appellant. The vehicle smelled of
3
marijuana, and appellant was yelling and uncooperative during the arrest. Frost also
testified that on July 28, 2016, he had “occasion to come into contact” with appellant
at the Dragonwick residence and observed him coming out of the “middle”
bedroom.2
D. Huang, a forensic analyst with the controlled substances section of the
Houston Forensic Science Center, testified at trial. He stated that one substance he
tested was 25I-NBOMe, a hallucinogen with effects and dosage similar to LSD, and
another substance was methamphetamine. The total amount of 25I-NBOME was
150 abuse units3; the total amount of methamphetamine was 21.12 grams.
The jury found appellant guilty of the two possession with intent to deliver
offenses for 25I-NBOMe and methamphetamine. Appellant pleaded true to an
enhancement paragraph alleged in both cases related to a January 2009 felony
conviction for delivery of a controlled substance. At the punishment phase, Frost
testified that during the July 2016 incident, he went to the Dragonwick residence to
execute arrest warrants related to the January 2016 cases. Appellant was
uncooperative and had to be forcibly detained. Frost performed a protective sweep
to clear the house. When he entered the bedroom appellant had exited, “there was
immediately apparent narcotics in plain view as well as body armor” and a scale.
Police seized 5.67 total grams of methamphetamine and the body armor. The jury
assessed appellant fifteen years of confinement for each offense, to run concurrently.
Appellant timely appealed.
2
For ease of reference, we refer to the events of July 28, 2016, as the “July 2016 incident.”
3
Huang testified that each abuse unit is a “little square” stamp meant to be placed under
the tongue.
4
II. ANALYSIS
A. Appellant’s links to the 25I-NBOMe and the methamphetamine
We first address appellant’s third issue because legal sufficiency is a rendition
point. See Jackson v. State, 495 S.W.3d 398, 405 n.5 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d). Appellant argues that the evidence is insufficient to support
his convictions for possession with intent to deliver 25I-NBOMe and
methamphetamine because the evidence did not affirmatively link him to the drugs.
A person commits an offense if he knowingly possesses with intent to deliver
80 or more but fewer than 4,000 abuse units of 25I-NBOMe. Tex. Health & Safety
Code Ann. §§ 481.1021(a)(2)(B), 481.1121(a), (b)(3) (West 2017). A person
commits an offense if he knowingly possesses with intent to deliver
methamphetamine weighing in the aggregate, including adulterants and dilutants, 4
grams or more but less than 200 grams. Tex. Health & Safety Code Ann.
§§ 481.102(6) (West 2017 & Supp. 2017), 481.112(a), (d) (West 2017). Appellant
does not dispute that “once past the threshold of proving possession, there was
sufficient evidence for the jury to find an intent to deliver.” To prove the unlawful
possession of a controlled substance, the State must establish that the accused (1)
exercised care, control, custody, or management over the contraband and (2) knew
that the substance possessed was contraband. Poindexter v. State, 153 S.W.3d 402,
405 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466
S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015). Possession may be proved through
either direct or circumstantial evidence. Id. at 405–06.
“When the accused is not in exclusive possession of the place where the
contraband was found, it can not be concluded that appellant had knowledge of or
control over the contraband unless there are additional independent facts and
circumstances that affirmatively link appellant to the contraband.” Avila v. State, 15
5
S.W.3d 568, 573 (Tex. App.—Houston [14th Dist.] 2000, no pet.). “Links” are
established when the evidence shows that the accused’s connection with the
contraband was more than just fortuitous. Poindexter, 153 S.W.3d at 405–06. “We
consider the totality of the circumstances when determining whether the accused is
linked to the recovered contraband.” Roberts v. State, 321 S.W.3d 545, 549 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d). We have identified a nonexhaustive
list of relevant factors that may establish, either individually or in combination, the
accused’s possession of contraband:
(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view[;] (3) the defendant’s proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether the
defendant made incriminating statements when arrested; (7) whether
the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether
other contraband or drug paraphernalia were present; (11) whether the
defendant owned or had the right to possess the place where the drugs
were found; (12) whether the place where the drugs were found was
enclosed; (13) whether the defendant was found with a large amount of
cash; and (14) whether the conduct of the defendant indicated a
consciousness of guilt.
Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no
pet.), cited in Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).
Additionally, a large quantity of contraband may be a factor affirmatively linking
appellant to the contraband. See id. at 292. The number of links present is not
dispositive; establishing possession depends on the logical force created by all the
evidence. Evans, 202 S.W.3d at 162. In addition, “[t]he absence of various links
does not constitute evidence of innocence to be weighed against the links present.”
Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d) (citing Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976)).
6
Although appellant was not present when the officers searched the
Dragonwick residence, Johnson told Wilson that appellant had access to the home,
is there “every day,” and had been there “earlier in the day.” Johnson told Wilson it
was appellant’s bedroom that she thought a burglar was attempting to enter. There
was also evidence that appellant was observed leaving the Dragonwick residence on
the day he was arrested and exiting the “middle” bedroom of the Dragonwick
residence during the July 2016 incident. Given the evidence of appellant’s
accessibility to the bedroom, at best factor (1) is neutral.
Factor (2) favors a link. When police executed the protective sweep and the
later search pursuant to consent, multiple narcotics were in plain view in the
bedroom, including “LSD blot paper”4 and “meth.” Factor (3) is tempered by the
fact that appellant was not in proximity to the drugs at the time of the search, but the
narcotics were easily accessible to him since there was evidence that they were
“laying out” in his bedroom and that he accessed the house on a daily basis. At best,
this factor is neutral.
Factors (4) and (5) tend to favor a link where police smelled marijuana coming
from the inside of the vehicle during the traffic stop when appellant was arrested for
the January 2016 offenses. Although factors (6), (7), and (8) do not favor a link
where appellant did not make any incriminating statements, attempt to flee, or make
furtive gestures when arrested, he was uncooperative, yelled profanities, refused to
obey officers’ commands, and reported breathing issues that required EMS care
despite being “in perfect health.” This “out of the ordinary” behavior during his
arrest could support a reasonable inference of consciousness of guilt; factor (14)
favors a link. See Roberson v. State, 80 S.W.3d 730, 740 (Tex. App.—Houston [1st
4
See supra notes 1 & 3.
7
Dist.] 2002, pet. ref’d) (appellant’s inconsistent statements regarding relationship
with other occupant of car indicated general consciousness of guilt); Leyva v. State,
840 S.W.2d 757, 759–60 (Tex. App.—El Paso 1992, pet. ref’d) (“odd” and
“suspicious” behavior can demonstrate consciousness of guilt).
Factor (9) does not favor a link as there is no evidence that the 25I-NBOMe
or methamphetamine in the bedroom emitted any odor. However, factor (10) favors
a link where the bedroom also contained marijuana, cocaine, Xanax, Ecstasy, Lortab,
Tylenol with codeine, Promethazine, multiple guns, ammunition, a scale, wrapping
papers, a marijuana grinder, and plastic baggies. See Jackson, 495 S.W.3d at 407
(scale, beaker used to make crack cocaine, and empty pharmacy bottles also present);
Haggerty v. State, 429 S.W.3d 1, 4, 7 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d) (multiple digital scales, tools for cooking crack cocaine, and two substances
that commonly serve as adulterants for cocaine also present); Hargrove v. State, 211
S.W.3d 379, 386 (Tex. App.—San Antonio 2006, pet. ref’d) (digital scales, body
armor, multiple weapons, and ammunition also present). Wilson testified that the
presence of these all these items together indicated that appellant had a “pharmacy”
for his “clients” and was engaged in the “dangerous business” of delivering drugs
instead of “personal consumption.”
With regard to factor (11), various items tied appellant to the bedroom in the
Dragonwick residence: mail addressed to him, a prescription bottle containing his
name, and male clothing likely to fit him. Also, the address for appellant’s driver’s
license was the Dragonwick residence. His mother stated that appellant was at the
house daily and identified his bedroom. See Jackson, 495 S.W.3d at 406–08 (mail
addressed to appellant and presence of male clothing favored right of possession at
girlfriend’s apartment); Hargrove, 211 S.W.3d at 384–86 (evidence favored right of
possession where bills were addressed to and appellant paid bills associated with
8
home shared with ex-girlfriend, appellant often stayed overnight at the home, and
home contained his clothing); Cooper v. State, 852 S.W.2d 678, 681–82 (Tex.
App.—Houston [14th Dist.] 1993, pet. ref’d) (presence in bedroom of clothes that
appeared to fit appellant and envelopes addressed to him at wife’s home favored
right of possession); Brown v. State, 807 S.W.2d 615, 617 (Tex. App.—Houston
[14th Dist.] 1991, no pet.) (mail addressed to appellant at mobile home, testimony
that appellant lived at trailer park with wife, and that he paid rent checks favored
right of possession). Appellant argues that he did not have the sole right to possess
the premises where the drugs were found. However, control over contraband need
not be exclusive, but can be jointly exercised by more than one person. Haggerty,
429 S.W.3d at 7. Appellant points to no evidence, and the record does not reflect,
that Johnson shared possession. See id. Appellant also was seen leaving the house
in April 2016 when he was arrested and exiting the bedroom in question during the
July 2016 incident. This factor favors a link.
Factor (12) favors a link. There was evidence that appellant rolled a towel
underneath the door in an attempt to contain the smell of marijuana and “enclose”
the bedroom containing the drugs. Factor (13) does not favor a link because
appellant was not found with a large amount of cash. Finally, the large amount and
variety of drugs contained in the bedroom, which Wilson described as a “pharmacy,”
also favors a link. See Olivarez, 171 S.W.3d at 292.
While the number of links present is not dispositive, more than half of the
factors indicate that appellant’s connection to the 25I-NBOMe and
methamphetamine was more than just fortuity here. See Evans, 202 S.W.3d at 161–
62. Considering the totality of the circumstances, we conclude that the links
established by the logical force of this evidence are sufficient to support a finding
that appellant knowingly possessed with the intent to deliver at least 80 and less than
9
4,000 abuse units of 25I-NBOMe and methamphetamine weighing more than 4 and
less than 200 grams. We overrule appellant’s third issue.
B. Denial of the motion to suppress
We review a trial court’s ruling on a motion to suppress evidence for an abuse
of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). We
must view the evidence in the light most favorable to the ruling. Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). At a suppression hearing, the trial judge is
the sole trier of fact and assesses the witnesses’ credibility and the weight to give
witnesses’ testimony. Id. at 24–25. We give almost total deference to the trial
court’s determination of historical facts, especially when the trial court’s fact
findings are based on an evaluation of credibility and demeanor. Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference
to the trial court’s application of the law to facts if the resolution of those ultimate
questions turns on an evaluation of credibility and demeanor. Id. We review de
novo the trial court’s application of the law to facts if resolution of those ultimate
questions does not turn on an evaluation of credibility and demeanor. Id. When
there are no written findings of fact in the record, we uphold the ruling on any theory
of law applicable to the case and presume the trial court made implicit findings of
fact in support of its ruling so long as those findings are supported by the record.
State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000); Kelly v. State, 331
S.W.3d 541, 547 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
In his first issue, appellant argues that the trial court abused its discretion by
not granting his motion to suppress the evidence seized without a warrant at the
Dragonwick residence in January 2016. Appellant contends that police exceeded
the permissible scope of the protective sweep. Appellant further asserts that the
search was not justified by exigent circumstances, and Johnson’s consent to search
10
“was not truly voluntary.”
Protective sweep. A protective sweep is a quick, limited search of the
premises, generally incident to arrest and conducted to protect the safety of law
enforcement or others. Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim. App. 2000)
(citing Maryland v. Buie, 494 U.S. 325, 328 (1990)). “[A] police officer may sweep
the house only if he possesses an objectively reasonable belief, based on specific and
articulable facts, that a person in that area poses a danger to that police officer or to
other people in the area.” Id. at 817. “[T]his sweep must stay within the appropriate
scope and may last long enough to ‘dispel the reasonable suspicion of danger.’” Id.
The sweep is to be “narrowly confined to a cursory visual inspection of those places
in which a person might be hiding.” Buie, 494 U.S. at 327.
Appellant does not dispute that the police lawfully entered the Dragonwick
residence to respond to the burglary call and ensure that it was safe for Johnson to
return to her house. Appellant instead claims that the police exceeded the limited
scope of the protective sweep and “proceeded to search the side bedroom before
seeking Johnson’s consent.” We disagree. The evidence indicates it was during the
protective sweep that Wilson viewed the drugs and guns in appellant’s bedroom. At
the suppression hearing, Wilson testified that, as the K-9 officer and the K-9 dog
entered each room to check for people, Wilson was with them and was “in the room
when it’s being cleared.” According to Wilson, when they entered appellant’s
bedroom, Wilson saw guns and drugs: “What I’m saying to you is you can see this
stuff in plain view.” Wilson further stated, “The protective sweep is the intent, but
I can’t unsee what’s in the room while I’m in there.” During the sweep, Wilson only
performed a visual inspection. He did not move any furniture and did not open the
safe or any drawers, which were already open. Cf. Torrez v. State, 34 S.W.3d 10,
18 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The trial court was free to
11
believe Wilson’s testimony. See Wiede, 214 S.W.3d at 24–25; Kelly, 331 S.W.3d at
547.
Consent to search. We need not determine whether the exception for exigent
circumstances applies because we conclude that the search was supported by valid
consent. A search conducted pursuant to voluntary consent is an established
exception to the constitutional warrant requirement. Reasor, 12 S.W.3d at 817
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 223 (1973)).5 Texas law
requires the State to prove voluntariness of consent to search by clear and convincing
evidence, rather than by a mere preponderance of the evidence. Id. at 817–18;
Graham v. State, 201 S.W.3d 323, 330 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d) (under federal constitution, standard is preponderance of evidence; under
Texas Constitution, standard is clear and convincing evidence). To be valid, consent
to search must be positive and unequivocal and must not be the product of duress or
coercion, either express or implied. Graham, 201 S.W.3d at 330 (citing Reasor, 12
S.W.3d at 818). The trial court must look at the totality of the circumstances
surrounding the statement of consent to determine whether consent was given
voluntarily. Reasor, 12 S.W.3d at 818. We consider various factors in determining
voluntariness of consent: age, education, and intelligence; any constitutional advice
given, such as whether the consenting person had the option to refuse consent; the
repetitiveness of questioning; the use of physical punishment; whether the
consenting person was in custody or restrained at the time, and the length of any
such detention; and whether weapons were drawn. See Cadoree v. State, 331 S.W.3d
5
In Reasor, the Court of Criminal Appeals concluded that, despite an illegal protective
sweep, where the appellant later gave officers voluntary consent to search his home, any taint from
the illegal sweep was sufficiently attenuated. 12 S.W.3d at 819. There, the suspect was brought,
in handcuffs, into his residence and asked to sign a consent to search form for his residence. Id. at
815.
12
514, 520 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). “An officer’s
testimony that consent was voluntarily given can be sufficient evidence to prove the
voluntariness of the consent.” Kelly, 331 S.W.3d at 547 (citing Martinez v. State,
17 S.W.3d 677, 683 (Tex. Crim. App. 2000)).
Appellant asserts that Johnson’s consent was not voluntary. We disagree.
Wilson testified that after the house was cleared he informed Johnson that he had
seen drugs and guns in appellant’s bedroom. Wilson requested Johnson’s consent
to search the house and provided her with the consent form. Johnson was not
considered a suspect at the time. She was not detained and no weapons were drawn.
According to Wilson: “I didn’t make her sign it. She has the option, if you read the
Consent to Search form, she read it and was able to sign it.” The consent form states
the individual understands that she has a constitutional right to not have her property
searched without a warrant but may consent voluntarily. Wilson stated that he did
not “put[] pressure on” Johnson or threaten her to sign the consent form. Wilson’s
testimony, which the trial court was free to believe, clearly shows that Johnson’s
consent was voluntary. See id.; Graham, 201 S.W.3d at 330.
Appellant relies on Cooksey v. State, 350 S.W.3d 177 (Tex. App.—San
Antonio 2011, no pet.). Cooksey is distinguishable. There, the appellant consented
to the search under circumstances where the police had just entered his backyard
illegally and seen marijuana plants on his back steps and where the consent form the
appellant signed contained no written warnings that he could decline to consent. See
id. at 187–88. We also decline appellant’s request to consider Johnson’s post-search
statements and behavior in our determination of whether her consent to search was
voluntary. See Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (determination of
consent must be judged against objective standard, i.e., “the facts available to the
officer at the moment”).
13
Deferring, as we must, to the trial court’s determinations of credibility and
historical facts, we conclude that the trial court reasonably could have found that the
police executed a valid protective sweep, and that the subsequent search was
supported by voluntary consent. Therefore, the trial court acted within its discretion
in denying the motion to suppress. We overrule appellant’s first issue.
C. Admission of extraneous evidence
In his second issue, appellant argues that the trial court abused its discretion
when it permitted the State to present extraneous-offense evidence relating to the
July 2016 incident during both phases of the trial.
Guilt/innocence phase. Evidence of extraneous offenses is not admissible at
the guilt/innocence phase of a trial to prove that a defendant committed the charged
offense in conformity with a bad character. Tex. R. Evid. 404(b)(1); see Martin v.
State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005). However, extraneous offense
evidence may be admissible when it has relevance apart from character conformity.
Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Robbins v. State, 88
S.W.3d 256, 259 (Tex. Crim. App. 2002). For example, it may be admissible to
show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Tex. R. Evid. 404(b)(2); Martin, 173 S.W.3d at 466.
Whether extraneous offense evidence has relevance apart from character conformity,
as required by rule 404(b), is a question for the trial court. Martin, 173 S.W.3d at
466 (citing Moses, 105 S.W.3d at 627). Evidence is relevant to such an issue if the
purpose for which the party seeks to have it admitted tends 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.” Smith v. State, 5 S.W.3d
673, 679 & n.13 (Tex. Crim. App. 1999).
Evidence relevant to a “noncharacter conformity issue of consequence” under
14
rule 404(b) may be inadmissible under rule 403 if the trial court determines that the
probative value of the evidence is “substantially outweighed” by the danger of unfair
prejudice. Tex. R. Evid. 403. Evidence is unfairly prejudicial when it has “an 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 v. State, 810
S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh’g)). In determining whether
the trial court abused its discretion in admitting the evidence, we 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 amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42, 642 n.8 (Tex. Crim. App. 2006).
We presume that the probative value of relevant evidence substantially
outweighs the danger of unfair prejudice from admission of that evidence. Martinez
v. State, 468 S.W.3d 711, 718 (Tex. App.—Houston [14th Dist.] 2015, no pet.). “It
is therefore the defendant’s burden to demonstrate that the danger of unfair prejudice
substantially outweighs the probative value.” Kappel v. State, 402 S.W.3d 490, 494
(Tex. App.—Houston [14th Dist.] 2013, no pet.). Because the trial court is in the
best position to decide these admissibility questions, we review a trial court’s
admissibility decision for abuse of discretion. Robbins, 88 S.W.3d at 259–60, 262
(citing Montgomery, 810 S.W.2d at 391–93). We uphold a trial court’s admissibility
decision when that decision is within the zone of reasonable disagreement. Id. at
260. “[W]e are to reverse the trial court’s judgment rarely and only after a clear
15
abuse of discretion.” Kappel, 402 S.W.3d at 494 (internal quotation marks omitted).
At the beginning of the guilt/innocence phase, the trial court held a hearing
regarding the State’s request “that extraneous evidence” from the July 2016 incident
“be admissible.” The State anticipated that identification would be at issue since
appellant was not present when the drugs were located at the Dragonwick residence
in January 2016.6 Appellant requested a ruling as to whether the evidence of the
July 2016 incident was “going to be allowed in [the State’s] case-in-chief” and asked
that it “be excluded under [rules] 404 and 403.” At that time, the trial court did not
issue a ruling:
Well, I’ll take some time to go read these cases. I assume that y’all had
an agreement that we would handle that during the course of the trial,
and we would have a hearing at that time, but if you need a ruling on it
right now, I’ll read these cases and make a decision.
When the State was ready to proffer testimony of the July 2016 incident
through Frost, the State stated it would only use the evidence “to prove
identification,” and would not talk about appellant’s bond violation, or about how
police found methamphetamine and body armor. Appellant indicated he wanted to
suppress that the police were executing an arrest warrant “because . . . it sounds like
we have another case.” The following exchange took place:
THE COURT: Well, the suppression issue that [defense counsel is]
arguing, I think, will turn on whether or not you feel that this testimony
is more prejudicial than probative and I don’t believe it is because based
on the state of the evidence, I think that certainly [the prosecutor is]
entitled to get into some more probative information about why the
nexus between this house and this Defendant needs to be shown, and
that’s the way he wants to do it. So, I agree with that.
[DEFENSE COUNSEL]: I guess my whole thing is if we can put that
it’s a traffic—I just don’t want it to say arrest warrant because then it
6
The State also stated that the evidence was relevant to a common plan and scheme.
16
applies new—
THE COURT: You might get him to agree to that to avoid some
controversy here.
[DEFENSE COUNSEL]: Because then it ties my hands, like, I’m just
letting this officer come in his house for no reason.
[PROSECUTOR]: Judge, would it work if—I guess that’s the whole
argument is there’s no other way to get around the fact that they’re there
for an arrest warrant.
(Discussion between the attorneys off the record.)
[PROSECUTOR]: Judge, I think we can agree. When we originally
approached you, we said that we would go the generic route. So,
basically, saying that on this particular date did you have an occasion
to come in contact with this Defendant at his home? The question
would be, yes. And then sort of what happened? What did you see?
Without going into the fact that he was arrested. Without going into
the fact that there was a warrant. Without going into the fact of what
was found in the home.
THE COURT: For purposes of what you want to show the jury, I think
that’s absolutely correct. So long as you’re satisfied with the way he’s
going to do it will not be any prejudice to your client.
[DEFENSE COUNSEL]: As long as we’re not getting into arrest
warrant or the fact that they arrested him or handcuffed him or anything
like that because that’s what I was thinking is they’re going to make
this whole scene where he crawls across the living room floor.
[PROSECUTOR]: All I’m concerned about is the identification.
THE COURT: Okay. That’s fine. We all have that agreement? And
does the officer understand?
[DEFENSE COUNSEL]: Can we put this on the record? The other
officer did not adhere to the excited utterance at all.
THE COURT: Let’s do this outside the presence of the jury so we make
sure we have an agreement. Go ahead.
The State questioned Frost outside the presence of the jury. Afterward, the following
exchange occurred:
THE COURT: Is that all right?
17
[DEFENSE COUNSEL]: Assuming we’re taking a lot of that out, as
far as the mom coming [sic] being crazy upset.
THE COURT: And, basically, just for the record, this is to show the
nexus between the Defendant living in that house and that being his
room inside that residence; is that correct?
[PROSECUTOR]: Yes, sir.
Frost testified that on July 28, 2016, he had occasion to come into contact with
appellant at the Dragonwick residence. According to Frost, appellant was coming
“out of the bedroom that was located on kind of the central eastern part of the home.”
Frost stated he did not know whether this was the same room where the narcotics
had been found. Appellant cross-examined Frost regarding where exactly he had
seen appellant in the house.
We conclude, and the record reflects, the parties came to an agreement that
the July 2016 incident would be admitted during guilt/innocence through Frost
solely for identification. The only detail to be elicited was “the fact that [appellant]
was [at the Dragonwick residence], and [Frost] saw [appellant] there coming out of
that bedroom.” The agreement appeared to cover both the admissibility under rule
404(b) and the “more probative than prejudicial” nature under rule 403 during
guilt/innocence of Frost’s testimony regarding the July 2016 incident. Appellant
never expressed any dissatisfaction to the trial court that the State did not adhere to
the parties’ agreement.
On appeal, appellant does not mention any agreement. Instead, he argues:
“Whatever limited probative value the extraneous offense may have had, a lapse of
six months attenuated its probative value such that it was far outweighed by its
prejudicial impact under Tex. R. Evid. 403.” Assuming that appellant preserved any
such error under rule 404(b) or 403, we disagree.
Rule 404(b). “The trial judge has considerable latitude in determining that
18
identity is, in fact, disputed.” Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App.
2008). Here, appellant does not dispute that he placed at issue his identity as the
perpetrator based on alleged lack of control and access to the bedroom and the drugs.
See id. (“The question is whether impeachment occurred that raised the issue of
identity. If so, Rule 404(b) permits the introduction of extraneous offenses that are
relevant to the issue of identity.”). Appellant cross-examined Wilson regarding
appellant’s not being at the Dragonwick residence in January 2016 at the time of the
charged offenses. Such cross-examination attempted to downplay appellant’s ties to
the bedroom and to the items found in it, as well as attempted to show that the police
did not properly investigate other bedrooms or potential family occupants of the
house. Indeed, when asked by the trial court, appellant agreed that his contention
was there was no nexus between him and this bedroom and this house other than his
mother lived there.
Even when identity is an issue in the case, an extraneous offense is admissible
to show identity only if the charged offense and the extraneous offense share
sufficiently distinct characteristics. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim.
App. 2006). To the extent that Frost’s limited testimony about seeing appellant exit
the bedroom concerned any later crime, wrong, or other act to prove conduct in
conformity with bad character under rule 404(b), there were sufficient similarities
between the charged offenses and the July 2016 incident to support that such
testimony was relevant for identification. The record reveals that outside the
presence of the jury, the trial court inquired into the facts that tied appellant to the
bedroom at the Dragonwick residence—noting the July 2016 incident involved the
same “location and the same type[s] of drugs.” The State explained that “narcotics
were found with packaging in the exact same locations . . . in the January case[s].”
As in January 2016, mail addressed to appellant (a defensive driving certificate) was
19
present in the bedroom. And the July 2016 incident similarly involved a drug
“pharmacy,” including methamphetamine, as well as drug paraphernalia and
“defensive” items, this time body armor, out in plain view. See id. at 338 (Texas
law “does not require extraneous-offense evidence to be completely identical to the
charged offense to be admissible to prove identity”); Mason v. State, 416 S.W.3d
720, 740–41 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“The extraneous
offense and the charged offense can be different offenses, so long as the similarities
between the two offenses are such that the evidence is relevant.”); Burton v. State,
230 S.W.3d 846, 850–51 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(“Although there are some differences between the various offenses, these
differences do not necessarily outweigh the similarities and thus destroy the
probative value of the extraneous offenses in proving identity.”). We conclude that
the evidence of the extraneous offense admitted at trial was highly probative of
appellant’s identity as the perpetrator of the charged offenses and therefore relevant
to a fact of consequence in the case apart from its tendency to prove conduct in
conformity with character. See Mason, 416 S.W.3d at 741.7
Rule 403. While the inherent probative force may have been slightly
diminished by the distance in time,8 that Frost saw appellant coming out of the
7
We disagree with appellant that the July 2016 incident was too remote in time from the
charged offenses to be probative. Our court has held that rule 404 “contains no time limitation.”
Prince v. State, 192 S.W.3d 49, 55 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (rejecting
“remoteness” argument). Further, the case on which appellant relies, Russell v. State, 113 S.W.3d
530 (Tex. App.—Fort Worth 2003, pet. ref’d), is not persuasive. The Russell court did not rule
that the trial court abused its discretion by rejecting the appellant’s contention that the later offense
was not admissible simply because it occurred after the charged offense. Id. at 537. Instead, the
Russell court determined that the trial court abused its discretion in admitting the later offense
under rule 404(b) based on identity “because it authorized an inference of guilt by association, that
is, an inference that because Russell acted with Barnes in the Vogt Street offense, he also was the
person who acted with Barnes in the Fast Freddy’s offense.” Id. at 541. No similar guilt-by-
association concern existed here.
8
Russell also does not support appellant’s position under rule 403. There, despite the
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middle bedroom of the Dragonwick residence a few months after the narcotics were
found was inherently probative to identify him as the person in custody and control
of that room back in January 2016. This sighting validated Johnson’s description of
the bedroom as her son’s; i.e., even if he had been staying with a girlfriend, appellant
was continuing to “come and go” daily to his bedroom at the Dragonwick residence.
Moreover, the State had a fairly strong need for the testimony—Frost provided the
only evidence of appellant’s actual physical presence in the room, as opposed to the
circumstantial presence of items linked to him such as mail and prescription bottles.
This testimony also was important where appellant’s theory was that he was not the
“big drug dealer” operating out of that bedroom of the Dragonwick residence, and
where he sought to prove during cross-examination that police did not sufficiently
link him to possession of the drugs in the bedroom and failed to investigate other
suspects.
Considering prejudice, there was no concern that the evidence would suggest
decision on an improper basis. Being seen exiting one’s bedroom is not emotionally
or otherwise inflammatory. It did not arouse the jury’s hostility or sympathy. See
Gigliobianco, 210 S.W.3d at 641. Nor would such evidence tend to confuse or
distract the jury from the main issue of deciding whether appellant possessed drugs
with intent to deliver at the Dragonwick residence back in January 2016. See id. In
addition, the trial court included in the guilt/innocence charge a rule 404(b) limiting
instruction on the jury’s use of any extraneous offenses, which we presume it
followed.9 See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996).
several-week delay between the charged capital-murder offense and a later extraneous offense that
also involving a shooting, the appellate court concluded the probative nature of the evidence
weighed in favor of admissibility of the later offense to show intent to commit the capital murder.
113 S.W.3d at 544.
9
Appellant did not request a contemporaneous limiting instruction at the time of Frost’s
testimony.
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Finally, the State developed this evidence in just over one page of the trial transcript
and such evidence was not repetitive.10 We decline appellant’s invitation to include
the time spent out of the presence of the jury on motions and arguments concerning
Frost’s testimony. See Dennis v. State, 178 S.W.3d 172, 181 & n.2 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d).
Upon balancing the rule 403 factors, the trial court reasonably could have
concluded that the probative value of Frost’s testimony regarding the July 2016
incident was not substantially outweighed by the countervailing prejudice factors.
Therefore, the trial court did not abuse its discretion in permitting Frost’s testimony
regarding the July 2016 incident during guilt/innocence.
Punishment phase. Appellant argues that the trial court committed an abuse
of discretion by permitting evidence of the July 2016 incident (specifically, the drugs
and body armor located, as well as appellant’s uncooperative behavior) to be
admitted during punishment.11 According to appellant, “[a]dmission of the
extraneous offense on punishment, much as in guilt/innocence, raises a comparable
issue of attenuated probative value being outweighed by prejudicial impact.”12
However, with regard to the punishment phase, appellant’s only objection to
admission of evidence of the July 2016 incident came in the form of a motion to
10
By way of comparison, appellant cross-examined Frost on this issue for approximately
five pages.
11
During the punishment phase, the State may offer evidence as to any matter the trial
court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is
shown beyond a reasonable doubt to have been committed by the defendant or for which he could
be held criminally responsible. Tex. Code Crim. Pro. Art. 37.07 § 3(a)(1) (West 2017). The trial
court included in the punishment charge an article 37.07 limiting instruction regarding the jury’s
use of any extraneous crimes or bad acts.
12
Article 37.07, section 3, also “does not provide a time restriction.” Fowler v. State, 126
S.W.3d 307, 310–11 (Tex. App.—Beaumont 2004, no pet.) (rejecting “remoteness” argument);
see Rodriguez v. State, 345 S.W.3d 504, 508 (Tex. App.—Waco 2011, pet. ref’d) (citing Fowler,
126 S.W.3d at 310–11, for same).
22
suppress based on an invalid protective sweep, which the trial court denied.13
Appellant did not object under either article 37.07 or rule 403. See Montgomery,
810 S.W.2d at 388–89; Saldivar v. State, 980 S.W.2d 475, 492–93 (Tex. App.—
Houston [14th Dist.] 1998, pet. ref’d). Because appellant’s subissue on appeal does
not correspond to the objection made at trial, we conclude that appellant failed to
preserve error. See Tex. R. App. P. 33.1; Lara v. State, 513 S.W.3d 135, 140 (Tex.
App.—Houston [14th Dist.] 2016, no pet.); Orellana v. State, 489 S.W.3d 537, 547
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
We overrule appellant’s second issue.
D. Reformation of judgment in cause number 1507537
In appellant’s final issue, with which the State agrees, he requests that this
court reform the judgment in cause number 1507537 to reflect the correct offense of
which he was convicted—the offense involving possession with intent to deliver at
least 80 and less than 4,000 abuse units of 25I-NBOMe. See Tex. R. App. P. 43.2(b).
The current judgment reflects that appellant was convicted of: “POSS W/INT
DEL/MAN/DEL PG1 >=4<200G.” It instead should state that appellant was
convicted of: “POSS W/INT DEL/MAN/DEL PG1-A >=80<4,000AU.” We sustain
appellant’s fourth issue.
III. CONCLUSION
Having overruled appellant’s first three issues, we affirm appellant’s
convictions in both of his felony cases. We affirm the trial court’s judgment in cause
number 1507538. Having sustained appellant’s fourth issue, we reform the trial
court’s judgment in cause number 1507537 to reflect the correct penalty group (1-
A) and amount of drug (at least 80 and less than 4,000 abuse units), and otherwise
13
Appellant does not challenge the trial court’s denial of this motion to suppress on appeal.
23
affirm that judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Busby, Brown, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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