Damian Ricardo Flores v. State

Affirmed as Modified and Opinion filed October 1, 2013.
In the
Fourteenth Court of Appeals
NO. 14-12-00623-CR
DAMIAN RICARDO FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1242919
OPINION
Appellant Damian Ricardo Flores was convicted by a jury of possession of
cocaine weighing more than 4 and less than 200 grams. The jury answered a deadly
weapon special issue in the affirmative. The jury sentenced him to 20 years’
confinement. On appeal, he presents four issues: (1) whether the evidence is legally
sufficient (a) to support his conviction for cocaine possession and (b) to support the
jury’s deadly weapon finding; (2) whether the trial court committed charge error by
refusing appellant’s requested deadly weapon instruction; (3) whether during appellant’s
punishment phase the trial court erred in allowing testimony regarding his alleged
involvement in a previous shooting; and (4) whether the court costs imposed against
him are supported by sufficient evidence. We sustain appellant’s fourth issue. Finding
no reversible error in his remaining issues, we modify the trial court’s judgment to
delete the specific amount of court costs, and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was indicted for felony possession with intent to deliver a controlled
substance, namely, cocaine, weighing at least 4 and less than 200 grams, including any
adulterants and dilutants, alleged to have been committed on or about November 30,
2009.
At trial, Officer Vanderberry, a narcotics investigator representing the Houston
Police Department (HPD) as part of a multi-agency drug trafficking task force, testified
that he was conducting initial surveillance on a residence on Sarita Street on the
afternoon of November 30, 2009. Vanderberry observed a number of hand-to-hand
transactions between individuals coming up to the front door and a male inside the
residence, identified as appellant. Based on his observations and experience in drug
trafficking, Vanderberry mobilized a team, which included Sergeant Ohland with the
Texas Department of Public Safety, returned to Sarita Street, and set up surveillance.
Ohland and Vanderberry observed a black Dodge Magnum containing appellant
and a woman drive up to the residence. Appellant entered the residence using a key,
and the woman drove away. About one hour later, a couple approached the residence
on foot. The male knocked on the door, appellant answered, the male handed something
to appellant, appellant closed the door and returned in a minute or so, appellant handed
something to the male, and the male put the item in his pocket. Ohland followed,
stopped, and detained the couple; the male was found with a baggy of marijuana in his
pocket.
2
Vanderberry continued his surveillance. About half an hour later, appellant
exited the residence, locked the front door, and drove off in a Lincoln SUV.
Vanderberry observed appellant commit multiple traffic violations, and radioed for a
marked police car to conduct a stop. Police recovered a set of keys from appellant,1 a
Santa Muerte medallion, and about $600 in cash. Santa Muerte is known as the patron
saint of narcotics traffickers.
Police obtained a search warrant for the Sarita Street residence and used
appellant’s key to enter. No one had entered the residence since appellant left, and no
one was inside when the search warrant was executed. In the kitchen, there was a tray
containing loose marijuana on a countertop. Police recovered from kitchen drawers
several large baggies containing marijuana, a large baggy containing cocaine, and
Xanax prescription pills. The cocaine weighed 8.8 grams. Also in the kitchen were
smaller “sandwich-type” baggies, a digital scale, and a fake drink canister of the type
used to smuggle narcotics. In the living room, on the end table by the sofa, was a
loaded 9-millimeter semiautomatic pistol with an “obliterated” serial number. This
pistol was located approximately 15 feet from the front door, and its hammer was
“cocked back.” Also in the living room were framed photos of appellant and his wife,
and a shrine to Santa Muerte. In the guest bedroom, police located a manila folder filled
with various documents containing appellant’s name.2 In the master bedroom, in a
drawer, police located a loaded .38-caliber pistol, various pistol magazines, and a high-
powered rifle magazine.
At trial, appellant objected to the language of the deadly weapon special
instruction, and the trial court denied the proposed charge. The jury convicted appellant
1
Appellant’s key chain also depicted Santa Muerte.
2
The folder contained appellant’s driver’s license, legal documents and court papers, paystubs,
money orders, invoices, receipts, correspondence, and license plates. These documents contained
various addresses for appellant, but did not include the Sarita Street address.
3
of possession of a controlled substance, namely, cocaine, weighing more than 4 and less
than 200 grams. The jury also found beyond a reasonable doubt that appellant used or
exhibited a deadly weapon, namely, a firearm, during the commission of the offense.
During the punishment phase, appellant moved to exclude any testimony from
Yvonne Stern and requested that the trial court “make a threshold inquiry as to the
admissibility of her testimony.” Appellant also objected that the testimony was “highly
prejudicial.” The trial court stated that she “was the trial court Judge that presided over
the—Mr. Flores’ previous trial regarding the attempted capital murder charge” and so
was “aware of the evidence that was presented.” The trial court denied the motion.
Stern testified about an incident occurring on the morning of May 5, 2010. Stern
was walking to her car in the parking garage of her apartment complex3 when a
Hispanic man “charged” at her and pointed a gun at her. Stern jumped into her car, but
the man continued to approach her. He pointed a gun at her head and demanded that
she exit the car and give him money. Stern did not have any money, and the man
started walking away, but then turned around and shot her in the stomach. Stern
initially identified another Hispanic man as the shooter but ultimately identified
appellant in a live line-up.
At the conclusion of the punishment hearing, the jury sentenced appellant to 20
years’ confinement.
On appeal, appellant argues: (1) the legal insufficiency of the evidence (a) to
support his conviction for cocaine possession and (b) to support the jury’s deadly
weapon finding; (2) the trial court committed charge error by refusing his requested
deadly weapon instruction; (3) the trial court erred by allowing Stern’s testimony during
punishment; and (4) the insufficiency of the evidence to support the court costs imposed
3
Stern and her family had moved to this complex after two previous shooting incidents at their
Bellaire home. Appellant was not involved in these other shootings.
4
in his judgment.
II. ANALYSIS
A. Appellant’s legal insufficiency issue
In his first issue, in two subparts, appellant challenges the legal sufficiency of the
evidence to support (1) the jury’s guilty verdict on cocaine possession and (2) the jury’s
finding that appellant used or exhibited a deadly weapon during commission of the
offense. We conclude that the evidence is legally sufficient to support both appellant’s
conviction and the deadly weapon special issue.
1. Standard of review
When evaluating the legal sufficiency of the evidence, we “consider all of the
evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could have found
the essential elements of the crime beyond a reasonable doubt.” Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)). We presume that the factfinder resolved any conflicting inferences in
favor of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326. We also
defer to the factfinder’s evaluation of the credibility and weight of the evidence. See
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In a challenge to the legal
sufficiency of the evidence, our role “is restricted to guarding against the rare
occurrence when a factfinder does not act rationally.” Id. (quoting Laster v. State, 275
S.W.3d 512, 518 (Tex. Crim. App. 2009)).
2. “Links” to cocaine
Appellant first argues that the evidence is legally insufficient to support his
conviction for cocaine possession because the evidence does not affirmatively link him
to the cocaine.
5
A person commits an offense if he knowingly or intentionally possesses over 4
but less than 200 grams of cocaine, including any adulterants or dilutants. TEX. HEALTH
& SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a), (d) (West 2010). 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). 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
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). Mere presence at the scene where contraband is found
does not establish possession; “[h]owever, presence or proximity, when combined with
other evidence, either direct or circumstantial (e.g., ‘links’), may well be sufficient to
establish that element [of actual care, custody, or control] beyond a reasonable doubt.”
Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). We have identified a
nonexhaustive list of potential links that, individually or in combination, may establish
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
6
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, 202 S.W.3d at 162 n.12. 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)).
Here, appellant asserts that (1) he was not at the residence when the search was
conducted. However, continuous surveillance for several hours and the fact that no one
else was present in the house when police executed the warrant indicate appellant had
been the only person present in the residence. Further, during that period of
surveillance, police observed him enter the residence with a key; respond to individuals
knocking on the front door; not allow those individuals entry; and then engage in a
suspected, then subsequently confirmed, drug transaction. This factor thus weighs in
favor of a link. See Lair v. State, 265 S.W.3d 580, 587 (Tex. App.—Houston [1st Dist.]
2008, pet. ref’d) (testimony that hand-to-hand transaction occurring in defendant’s
presence in vehicle he was driving provided sufficient link between defendant and drugs
later seized from car to demonstrate possession, despite argument that drugs belonged to
another vehicle occupant).
7
Appellant next contends that (2) the cocaine was hidden, so it was not in plain
view. This is consistent with the officers’ testimony that the baggy of cocaine was
located inside a kitchen drawer. This factor does not tend to favor a link.
Although appellant acknowledges he was in the residence where marijuana was in
plain view, with regard to his proximity and accessibility to the cocaine, he argues that
(3) he was not the only person in there and it was not his residence. However, the
evidence indicates that appellant was the only individual in the residence for, at the
least, the last few hours prior to the search, and that he was moving about the residence
freely. A loose tray of marijuana was out in the open on the kitchen counter. In
addition to the cocaine baggy, the kitchen drawers contained Xanax pills and large
baggies of marijuana. Also located in the kitchen were a scale, sandwich-type baggies
consistent with trafficking, and a fake drink canister for secreting narcotics. And
appellant was observed providing a suspected buyer with a small item that police
confirmed as an individual baggy of marijuana. Based on appellant’s ease of movement
throughout the house, which reasonably included the kitchen, a rational jury could have
inferred that appellant was in close proximity to and could access the cocaine. This
factor also favors a link.
We agree with appellant that the next few factors do not appear to link him to the
cocaine, that is: (4) he was not under the influence of any drugs when arrested, (5) he
did not possess other contraband or narcotics when arrested, (6) there was no evidence
at the guilt/innocence phase that he made incriminating statements when arrested, (7)
there was no evidence that he attempted to flee, and (8) there was no evidence that he
made furtive gestures. Although appellant next contends that (9) no odor of the cocaine
was ever mentioned, Vanderberry testified that marijuana is “so pungent” whereas
someone cannot “smell [cocaine] when you walk up to it.” Here, where there is
evidence that the contraband at issue has no odor, this factor appears to be neutral.
8
Factor (10) is whether other contraband or drug paraphernalia were present.
Here, several large baggies of marijuana, a tray containing loose marijuana, and a bottle
“with the label removed” containing Xanax prescription pills also were recovered from
the residence. Also present were a digital scale used “to measure out your narcotics,”
“individual baggies that are used for sale,” and the fake drink container for secreting
narcotics. This factor favors a link.
Next, appellant argues that (11) he did not own the residence nor was there any
documentation of his leasing it. In support of this, appellant points to the lack of utility
bills in his name, no mail tying him to the Sarita Street address, and nothing tying him
instead of his male cousin4 to the men’s clothing located at the residence. Appellant
insists that under three hours of surveillance, “old papers” with appellant’s name on
them, appellant’s having a key to the residence, and the pictures of appellant at the
residence are not sufficient to establish appellant’s care and control over the residence.
While appellant characterized the papers located in the guest room closet as “old,” some
were dated as late as July 2009. Moreover, according to police, “important documents
such as divorce decrees and license plate information,” “documents that are close and
personal,” are “going to be kept in a location that you have access to if it is your
residence.”5 Police also offered explanations for why the documents did not contain the
Sarita Street address: to “throw off law enforcement,” protect against home invasion,
and that it is “common business practice” to “keep[] your family in one location and
hav[e] your drug house in another.” See Utomi v. State, 243 S.W.3d 75, 80 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) (officer “explained that very few drug
dealers sell drugs out of their own house or apartment, but rather sell out of a house or
4
Two of appellant’s brothers testified that one of their cousins and that cousin’s brother or
brothers lived at the Sarita Street residence in November 2009.
5
One of appellant’s brothers stated he once stayed at the Sarita Street residence for “months,”
and acknowledged he kept his “important documents” at the residence only “[w]hen [he] was staying
there” and then “took it [sic] with [him].”
9
apartment in someone else’s name”). The photographs of appellant and his wife
“displayed prominently” in the living room tend to indicate that he was using Sarita
Street as a residence—and there were no displayed photos of anyone else. See
Poindexter, 153 S.W.3d at 411 (considering recovered photo of appellant as evidence he
lived at house); Herrera v. State, 561 S.W.2d 175, 179 (Tex. Crim. App. 1978) (same).
Appellant’s possession and use of a key to gain entry and to lock up when exiting also
connect him to the residence. See, e.g., Hubert v. State, 312 S.W.3d 687, 691 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Coleman v. State, 113 S.W.3d 496,
501 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 145 S.W.3d 649 (Tex. Crim. App.
2004), for holding that “appellant having a key to the house is a link”); Ettipio v. State,
794 S.W.2d 871, 874 (Tex. App.—Houston [14th Dist.] 1990, pet. dism’d) (apartment
key and access card); Garcia v. State, 753 S.W.2d 187, 188 (Tex. App.—San Antonio
1988, pet. ref’d) (motel room key). Finally, while the period of police surveillance may
have spanned only a few hours, during that time, appellant was the only individual
observed at the residence—he entered by the front door with a key, responded to a
couple knocking at the front door, did not allow the couple to enter, then engaged in a
confirmed drug transaction. Based on this evidence, a rational jury reasonably could
have inferred that appellant enjoyed the right of possession with regard to the residence.
This factor favors a link.
Appellant further argues that even assuming he had joint possession of the
residence with his cousin, the evidence is not enough to link him to and establish his
awareness of possession of the cocaine. Appellant relies on Medina v. State and Allen v.
State, where the appellate courts determined that the evidence was insufficient to link
the appellant to possession of the contraband. Neither case is binding on this court and
both cases are distinguishable. In Medina, the appellant had not been inside the
residence during the five-hour period of surveillance that day—and the other woman
10
who lived there was present during the search. —S.W.3d—, No. 01-10-01134-CR,
2011 WL 6013094, at *5 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. ref’d).
Further, while the appellant had been observed engaging in hand-to-hand suspected
drug transactions during previous surveillance on the residence, those transactions were
unconfirmed and no transactions took place on the date of the offense. Id. at *6. In
Allen, there was no evidence that the appellant, who sometimes babysat the owner’s
child, lived at the apartment. 249 S.W.3d 680, 697–98 (Tex. App.—Austin 2008, no
pet.). Nor was there any showing that the appellant had been in the kitchen where the
contraband was located6; and it was the owner of the apartment, not the appellant, who
had been under police surveillance. Id. at 695, 697.
Appellant acknowledges that (12) the cocaine was located in an enclosed space, a
closed kitchen drawer. Thus, this factor supports a link. Appellant also acknowledges
that (13) he was found with $600 in cash on him, which Vanderberry stated was
consistent with drug dealing. This factor also supports a link. Finally, we agree with
appellant that (14) there was no evidence adduced at guilt/innocence of any
consciousness of guilt.
While the numbers of links present is not dispositive, almost half of the factors
indicate that appellant’s connection to the cocaine was more than just fortuity here. See
Evans, 202 S.W.3d at 161–62. Considering the totality of the circumstances, and that
6
Appellant emphasizes that the Allen court found insufficient evidence “despite the fact that
the defendant’s fingerprints were found on the plate containing cocaine.” There were several reasons
the Allen court could have discounted the appellant’s link to this particular location of cocaine. The
“lion’s share” of the cocaine (approximately 246 of the 253 total grams) was found elsewhere in the
kitchen; the appellant’s fingerprints were located only on the underside of the ceramic platter at issue;
the owner’s fingerprints were also located on the platter; the platter was found on the back of the top of
the refrigerator; there was evidence appellant had brought the owner “some pots” and utensils when he
moved in because he did not own any; there was expert testimony that fingerprints on ceramic could
last for years; and the police only arrested the appellant three months after the search when her
fingerprints were found. See 249 S.W.3d at 684–87, 694–97. Here, the police explained that due to
the strength of the case, they made a judgment call not to submit items for fingerprinting.
11
“[i]n deciding whether the evidence is sufficient to link the defendant to contraband, the
trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be
given to their testimony,”7 we conclude that the links established by the logical force of
this evidence are sufficient to support a finding that appellant knowingly possessed
cocaine weighing at least 4 but less than 200 grams. Further, after considering all the
evidence in the light most favorable to the verdict, we have determined that, based on
that evidence and reasonable inferences therefrom, a rational jury could have found
appellant guilty of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at
318–19.
3. Deadly weapon finding
As a subpart to his legal insufficiency issue, appellant argues the State failed to
show that he “ever handled, possessed, or ‘used’ the deadly weapon in the facilitation of
the offense.”
A deadly weapon finding can be made if a deadly weapon “was used or exhibited
during the commission of a felony offense or during immediate flight therefrom.” TEX.
CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(2) (West 2006 & Supp. 2012). The deadly
weapon finding is important in that it affects a defendant’s eligibility for parole.
Coleman, 145 S.W.3d at 652. The parties do not dispute that appellant did not exhibit a
deadly weapon.8 Nor do the parties dispute that deadly weapons, namely, firearms,
were recovered during the search. See TEX. PEN. CODE ANN. § 1.07(a)(17)(A) (West
2011 & Supp. 2012). Thus, we must determine whether a rational trier of fact could
have found beyond a reasonable doubt that appellant used a firearm to facilitate
possession of the cocaine. See Coleman, 145 S.W.3d at 652. In the context of a deadly
7
Poindexter, 153 S.W.3d at 406.
8
The term “exhibit” requires that the deadly weapon be “consciously shown, displayed, or
presented to be viewed.” Coleman, 145 S.W.3d at 652 (quoting Patterson v. State, 769 S.W.2d 938,
941 (Tex. Crim. App. 1989) (en banc)).
12
weapon finding, the term “use” means “any employment of a deadly weapon, even [its]
simple possession, if such possession facilitates the associated felony.” Id. (quoting
Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (en banc)). Thus, the
real question is whether any of the weapons recovered are found to have facilitated
appellant’s possession of the cocaine also found at the Sarita Street residence. See
Coleman, 145 S.W.3d at 655.
Appellant argues that because he did not own the residence, was never seen with
a gun, and no fingerprint analysis was conducted, there is insufficient evidence to
establish that he used weapons in facilitation of the offense. Appellant also points to the
concurring opinion in Coleman, which expressed concern that “[t]he use of deadly
weapon findings has grown out of all bounds.” 145 S.W.3d at 656 (Cochran, J.,
concurring).9 However, based on our review of the evidence and the case law, we
conclude a rational jury could have found beyond a reasonable doubt that appellant used
a firearm to facilitate his possession of the cocaine.
In Patterson, the jury convicted the appellant of possession of methamphetamine
and affirmatively answered a deadly weapon question. 769 S.W.2d at 939. The
appellant argued there was no evidence of a threat involving the gun at issue, and if the
gun facilitated possession of anything, it was only his $905 in cash. Id. at 940. In
upholding the deadly weapon finding, the Patterson court concluded while it could be
true he was using the gun to protect his cash, “it does not mean that the weapon had no
utility to his protection of the drugs.” Id. at 942.
9
Appellant does not ask us to apply nor does he provide any analysis of the factors from the
concurring opinion in Coleman. See 145 S.W.3d at 659–60 (Cochran, J., concurring) (listing factors as
(1) the type of gun involved; (2) whether the gun was loaded; (3) whether the gun was stolen; (4) the
proximity of the gun to the drugs, drug paraphernalia, or drug manufacturing materials; (5) the
accessibility of the gun to whomever controlled the premises; (6) the quantity of drugs involved; and
(7) any evidence that might demonstrate an alternative purpose for the presence of the guns). We have
not located any case where this court has applied the Coleman concurrence factors, and we do not
apply them here.
13
In Gale v. State, the appellant argued there was no evidence that the unloaded
firearms stored in a closet were “used” in connection with the offense of marijuana
possession. 998 S.W.2d 221, 224 (Tex. Crim. App. 1999). In upholding the deadly
weapon finding, the Gale court noted there was uncontroverted trial testimony “that
drug traffickers use firearms to protect their drugs and drug proceeds.” Id. at 225. The
court noted that the closet also contained ammunition for the firearms, “distribution-
sized packages” of marijuana, and cash: “This is not a case where a person’s weapons
are found in a gun cabinet or closet completely separate from the criminal enterprise.”
Id. at 225–26.
More recently, in Coleman, the court upheld separate deadly weapon findings
where the appellant was convicted of possession with intent to deliver cocaine and of
possession with intent to deliver PCP. 145 S.W.3d at 649–50. There, in relevant part,
appellant argued that at the time of the search he was detained in a patrol car so he had
no access to the guns, there was no evidence his fingerprints were on the guns or they
were registered in his name, the weapons were not located in close proximity to the
drugs, and there was no evidence of his actual physical possession or control of the
guns. Id. at 651–52. The court disagreed, concluding “the jury could have reasonably
believed that the guns protected or facilitated Appellant’s possession of the drugs with
intent to deliver.” Id. at 652–55 (discussing Patterson and Gale).
The evidence indicates that the living room and the kitchen were next to each
other in the front of the house. In the kitchen, police recovered loose marijuana in plain
view. In side-by-side kitchen drawers, police recovered large baggies of marijuana,
Xanax pills, and a baggy containing 8.8 grams of cocaine, which Vanderberry testified
was an “amount more than just for personal use.” In plain view in the living room, on
the end table next to the sofa, police recovered a 9-millimeter semiautomatic pistol,
14
which was loaded and “cocked back.”10 This pistol was located about 15 feet from the
front door. Vanderberry testified that this firearm was a deadly weapon. He testified
that drug dealing was a “very dangerous” business. He also testified that dealers face
serious threats of targeted home invasion and, as a result, “try to protect their business
interest.” See Castillo v. State, —S.W.3d—, No. 01-11-00365-CR, 2012 WL 2924469,
at *3 (Tex. App.—Houston [1st Dist.] July 12, 2012, no pet.) (officers “testified that it is
common for drug traffickers to keep weapons to protect themselves and their drugs and
cash”); see also Gale, 998 S.W.2d at 225; Patterson, 769 S.W.2d at 942.
Appellant did not cite, and we have not located, any authority that requires
appellant be seen with a gun in order to “use” it. Vanderberry testified that the 9-
millimeter gun located in plain view caused police “concern” as soon as they entered the
residence to execute the warrant. The “cocked back and ready” gun was located 15 feet
from the front door. A rational jury reasonably could have concluded that this pistol in
the living room was accessible to appellant while he moved freely throughout the
residence, including to and from the front door and the kitchen, where the cocaine was
kept. See Newby v. State, 169 S.W.3d 413, 415–16 (Tex. App.—Texarkana 2005, pet.
ref’d) (upholding deadly weapon finding in marijuana possession case where testimony
indicated appellant came within “ten steps” of rifle). Moreover, courts have upheld
deadly weapon findings where the gun was located in a different room from the
contraband. See id. at 414–16 (assault rifle at issue was located on the bed in bedroom,
while dried marijuana was located in living room and an outbuilding, and live marijuana
plants were found growing in outdoor flower beds); see also Coleman, 145 S.W.3d at
650–51, 655 (pistol and rifle were located in bedroom “with the bed,” while crack
cocaine was found in kitchen and cocaine was found in dining room); Sanchez v. State,
243 S.W.3d 57, 61, 73–74 (nine firearms located in bedroom next to living room, where
10
Vanderberry explained that all one had to do to fire the pistol was “drop the safety and pull
the trigger.”
15
“the majority of the cocaine was found,” were likely used to “protect their dope”). Nor
is evidence of fingerprints or ownership “necessary to a finding that a person used a
deadly weapon in violation of article 42.12.” See Castillo, —S.W.3d—, 2012 WL
2924469, at *3 (rejecting argument that State did not establish ownership of gun).
Viewing the evidence in the light most favorable to the challenged finding, we
conclude a rational jury could have concluded beyond a reasonable doubt that
appellant’s possession of the loaded 9-millimeter pistol11 in the living room, next to the
kitchen where the drugs were kept, and within 15 feet of the front door, facilitated his
possession of the cocaine inside the residence. See Coleman, 145 S.W.3d at 652. Thus,
we overrule appellant’s first issue.
B. Appellant’s jury charge issue
In his second issue, appellant argues that the trial court erred by refusing his
requested jury instruction on the deadly weapon special issue. He contends that his
proposed instruction was “absolutely necessary for the jury to understand the law and
reach a proper verdict.” We conclude that no error existed in the jury charge.
1. Standard of review
“Appellate review of purported error in a jury charge involves a two-step
process.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We first
determine whether there is error in the jury instruction. Id. (citing Middleton v. State,
125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). Then, if error is found, we must analyze
that error for harm. Id. (citing Middleton, 125 S.W.3d at 453).
11
Having found the evidence legally sufficient with respect to the 9-millimeter semiautomatic
pistol recovered from the living room, we do not reach whether the jury reasonably could have
concluded that the .38-caliber pistol recovered from the master bedroom also supported the deadly
weapon finding. See TEX. R. APP. P. 47.1.
16
2. The trial court’s jury charge
Appellant’s indictment alleged that at the time appellant committed the charged
offense on or about November 30, 2009, he used and exhibited12 a deadly weapon,
namely, a firearm, during the commission of and immediate flight therefrom. See TEX.
CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(2). The following instruction was submitted
in the special issue charge:
Now, if you have found the defendant guilty of either offense hereinabove
defined,[13] you must determine beyond a reasonable doubt whether or not
he used or exhibited a deadly weapon, namely, a firearm, during the
commission of the offense or during the immediate flight therefrom.
Appellant objected to the special issue instruction and requested that the court instruct
the jury:
In order to find that Mr. Flores used or exhibited the firearm, the
prosecution must show that the deadly weapon was used or exhibited the
weapon [sic] in a manner that facilitated the felony conduct.
Appellant acknowledged that the instruction tracked article 42.12, section 3g(a)(2), but
insisted that the instruction also “include other language that helps the jury make a
proper decision in this case.” The State responded that the “facilitation” language
requested by appellant was not required and instead is used in evaluating the sufficiency
of the evidence. The trial court denied appellant’s request.
3. There was no error in the instruction.
The trial court must provide the jury with “a written charge distinctly setting forth
12
When an indictment alleges an offense in the conjunctive, as with the use of the word “and,”
it is proper to charge the jury in the disjunctive form by using the word “or.” White v. State, 874
S.W.2d 229, 232 (Tex. App.—Houston [14th Dist.] 1994, pet. dism’d) (citing Kitchens v. State, 823
S.W.2d 256, 258 (Tex. Crim. App. 1991)).
13
Prior to the special issue, the guilt-innocence charge permitted the jury to choose among
finding appellant not guilty, finding him guilty of the offense of possession of cocaine with intent to
deliver, or finding him guilty of the offense of possession of cocaine.
17
the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
But the trial court may not express “any opinion as to the weight of the evidence.” Id.;
Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2007). The Court of Criminal
appeals has “held that, if a jury instruction is derived from the penal code, it is generally
permitted because it is the applicable statute and, therefore, the ‘applicable law,’ as
required by Article 36.14.” Celis v. State, —S.W.3d—, 2013 WL 2373114, at *10 (Tex.
Crim. App. May 15, 2013) (citing Kirsch, 357 S.W.3d at 651). While courts must
instruct on statutorily defined terms, “[b]y contrast, it is generally impermissible to
instruct on terms not statutorily defined, and the trial court instead must permit the jury
to construe them according to the rules of grammar and common usage.” Id. at *11.
For example, in Kirsch, the Court of Criminal Appeals concluded that the trial
court’s inclusion of a definition for the term “operate” in a DWI instruction, even
though the court’s chosen definition reflected “an appropriate definition for an appellate
court to apply in assessing the sufficiency of the evidence to support the ‘operate’
element” under the DWI statute, was error. 357 S.W.3d at 652; see id. at 651
(“Although an appellate court may articulate a definition of a statutorily undefined,
common term in assessing the sufficiency of the evidence on appellate review, a trial
court’s inclusion of that definition in a jury charge may constitute an improper comment
on the weight of the evidence.”). The Kirsch court thus cautioned against courts
improperly commenting on the weight of the evidence by including special,
nonstatutory instructions because juries should be “free to ‘consider and evaluate the
evidence in whatever way they consider it relevant to the statutory offenses.’” Id. at
651–52 (quoting Walters, 247 S.W.3d at 211).
Appellant argues a jury charge that does not reflect his requested language runs
afoul of Patterson, and here confused the jury and allowed it to convict him despite the
18
lack of evidence of facilitation.14 We agree that the Patterson court construed the
meaning of “use” within article 42.12, section 3g(a)(2), and concluded that it “refers
certainly to the wielding of a firearm with effect, but extends as well to any employment
of a deadly weapon, even its simple possession, if such possession facilitates the
associated felony.” 769 S.W.2d at 941. However, the court did not assign any technical
meaning to the term “use,” but instead read the statutory term in context and construed
it in accordance with the rules of ordinary grammar and usage, in the context of a
sufficiency challenge. See id. at 940–41 (citing TEX. GOV’T CODE § 311.011).
While Patterson’s definition of the common term “use” is instructive for purposes
of legal sufficiency review of a deadly weapon finding, instructing the jurors regarding
that definition arguably may “impermissibly guide[] their understanding on the term”
and “improperly impinge[] on the jury’s fact-finding authority by limiting the jurors’
understanding of what evidence could constitute” “use.” See Kirsch, 357 S.W.3d at
652; Ex parte Thomas, 638 S.W.2d 905, 907 (Tex. Crim. App. 1982) (“[W]hether a
firearm was used in the commission of an offense, etc., is a fact issue to be decided by
the trier of the facts.”). Applying Kirsch, we cannot agree Patterson and its progeny
require that the jury be instructed on facilitation. Therefore, we conclude that the trial
court committed no error by refusing appellant’s requested deadly weapon instruction.
Thus, we overrule appellant’s second issue.
14
Appellant further points to a suggested definition included in commentary to the Texas
Criminal Pattern Jury Charges: “A person’s mere possession of a deadly weapon, if the person intends
this possession to facilitate the felony or escape, may constitute use of that deadly weapon.” State Bar
of Tex., Texas Criminal Pattern Jury Charges: Intoxication and Controlled Substances § A3.7 cmt.
(2009). First, we note that appellant’s requested instruction did not substantially track the language of
this commentary definition. Moreover, the Committee decided not to recommend a definition of “use”
in its deadly weapon pattern instruction largely because “[i]n most cases, jurors’ common-sense
understanding of [‘use’] should suffice.” Id. (citing an unpublished Dallas case where trial court did
not err in refusing to define “exhibit” in charge).
19
C. Appellant’s punishment phase issue
In his third issue, appellant argues that the trial court abused its discretion when it
allowed Stern to testify concerning an extraneous bad act during the punishment phase
because the court did not conduct a threshold inquiry into the admissibility of the
evidence and the State failed to proffer any evidence such bad act could be shown
beyond a reasonable doubt. Appellant further argues that the testimony was unfairly
prejudicial.
We conclude that although the trial court failed to meet its threshold
responsibility, appellant was not harmed. We also conclude that the trial court did not
abuse its discretion in admitting Stern’s testimony per rule 403.
1. Standard of review
We review a trial court’s decision to admit extraneous evidence during the
punishment phase for an abuse of discretion. Ellison v. State, 86 S.W.3d 226, 227 (Tex.
Crim. App. 2002) (en banc) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim.
App. 2001)). The trial court’s decision will not be overturned unless it falls outside the
zone of reasonable disagreement. Powell, 63 S.W.3d at 438.
2. Threshold issue of admissibility
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. PROC.
ANN. art. 37.07 § 3(a)(1) (West 2011). Evidence is relevant to sentencing within the
meaning of the statute if the evidence is “helpful to the jury in determining the
appropriate sentence for a particular defendant in a particular case.” Rodriguez v. State,
203 S.W.3d 837, 842 (Tex. Crim. App. 2006); see Rogers v. State, 991 S.W.2d 263, 265
20
(Tex. Crim. App. 1999) (describing admissibility of evidence at punishment as
“function of policy rather than relevancy,” and decision of what punishment to assess as
“a normative process”).
When presented with an appropriate objection, the trial court is the authority and
has the responsibility to determine the threshold issue of whether an extraneous bad act
is admissible. See Mitchell v. State, 931 S.W.2d 950, 953–54 (Tex. Crim. App. 1996)
(en banc); Davis v. State, 315 S.W.3d 908, 914 (Tex. App.—Houston [14th Dist.]
2010), rev’d on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011). The trial court
“may not admit extraneous offense evidence unless the evidence is such that a jury
could rationally find the defendant criminally responsible for the extraneous offense.”
Palomo v. State, 352 S.W.3d 87, 92 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(citing Davis, 315 S.W.3d at 914).
“[T]o prove an extraneous offense at punishment, the State is only required to
prove beyond a reasonable doubt a defendant’s involvement in the bad act: a finding of
guilt for a crime is not required.” Gomez v. State, 380 S.W.3d 830, 839 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex.
Crim. App. 2005)). Whether an extraneous offense or bad act was established beyond a
reasonable doubt is a question for the jury, as the exclusive judge of the facts. Mitchell,
931 S.W.2d at 953–54. Further, “the jury has discretion to assess whatever punishment
it sees fit, within the prescribed range.” Rodriguez, 203 S.W.3d at 842.
This court has held trial courts properly meet the threshold requirement when
they make their admissibility determination after an oral proffer by the State as to the
evidence that would purportedly prove the extraneous bad act by the defendant. See
Davis, 315 S.W.3d at 914–15; see also Palomo, 352 S.W.3d at 92–94 (“Although the
trial court never explicitly ruled that a rational jury could find beyond a reasonable
doubt from this evidence that appellant was criminally responsible for the extraneous
21
murder, the State’s proffer and the court’s questions show that the court indeed held a
threshold inquiry prior to admitting the extraneous offense evidence.”). Other appellate
courts similarly have concluded that the trial court properly may base its threshold
decision to admit testimony on the State’s written proffer,15 or oral proffer16 or
statement17 as to how it intends to prove the alleged extraneous bad acts.
During the punishment phase, appellant moved to exclude, and requested that the
trial court make a threshold determination as to the admissibility of, Stern’s testimony.
Without any response from the State, the trial judge stated: “Just for the record, I was
the trial court Judge that presided over the—Mr. Flores’ previous trial regarding the
attempted capital murder charge. So, I’m aware of the evidence that was presented.”
Appellant continued to protest that there was not enough evidence, particularly because
a State witness who testified at the prior trial would not be testifying during the
punishment phase. The trial court then denied appellant’s motion.
Appellant argues that the State made no attempt to provide the trial court with
evidence that they could prove him criminally responsible for the shooting of Stern
beyond a reasonable doubt, and that the trial court’s recollection of evidence presented
in a prior trial is not equivalent to a proffer of evidence by the State sufficient to satisfy
the threshold inquiry. The State responds that the trial judge did not abuse her
discretion by relying on her familiarity with the offense when making her threshold
determination.
We cannot agree that the trial judge’s statement simply as to her awareness of
“the evidence that was presented” at appellant’s former trial satisfies the requisite
15
Welch v. State, 993 S.W.2d 690, 697 (Tex. App.—San Antonio 1999, no pet.).
16
Mann v. State, 13 S.W.3d 89, 93–94 (Tex. App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex.
Crim. App. 2001).
17
Arzaga v. State, 86 S.W.3d 767, 781–82 (Tex. App.—El Paso 2002, no pet.).
22
threshold inquiry. Under this court’s precedent in Davis and Palomo, we would be hard
pressed to find the threshold requirement satisfied solely based on the nonspecific
judicial recollection at issue here. Aside from the fact that in Davis and Palomo, the
State provided the trial court with an oral proffer, moreover, those proffers were rather
specific as to what the witness testimony would reveal. See Palomo, 352 S.W.3d at 93
(two first responders, a crime scene technician, two investigators, arresting officers,
ballistics expert, and medical examiner would link appellant to weapon used in
extraneous murder); Davis, 315 S.W.3d at 914 (extraneous-offense complainant would
testify as to his positive identification of appellant as individual who committed
aggravated robbery).18 Here, the State clearly did not proffer and, aside from stating her
general recollection of “the evidence,” the trial judge did not identify what the specific
relevance of Stern’s testimony would be. Thus, nothing in the record reflects any
particular basis for the trial court’s initial admissibility determination. We conclude that
under these circumstances—where the State has not provided any proffer as to Stern’s
testimony and where the record reflects no specific basis for the trial court’s
admissibility determination—the trial court failed to satisfy its responsibility to conduct
a proper threshold inquiry.19
However, despite the trial court’s error, we conclude that there was no harm. See
Welch v. State, 993 S.W.2d 690, 697 (Tex. App.—San Antonio 1999, no pet.) (citing
Mitchell, 931 S.W.2d at 954, and conducting harm analysis in context of challenge to
18
Cf. Arzaga, 86 S.W.3d at 780 (“The prosecutor explained that [deputy] had been to
[appellant’s] residence on other domestic violence calls and that she was going to prove another assault
through excited utterances[.]”); Mann, 13 S.W.3d at 93–94 (defendant’s ex-wife would “testify as to
some physical abuse that she suffered at the hands of the defendant while they were married, [and] as
to his drug usage”); Welch, 993 S.W.2d at 697 & n.3 (extraneous-offense complainants would testify
regarding other sexual assaults by appellant).
19
We are not presented with and thus do not answer whether a trial court’s recollection of
specific evidence provided on the record in the absence of the State’s proffer could serve to satisfy the
threshold inquiry.
23
trial court’s refusal to hold threshold evidentiary hearing). Appellant urges that his prior
trial where the jury deadlocked at 6-6 did not result in a conviction, and the State
thereafter dismissed the case. But the jury’s determination of whether the State proved
appellant’s involvement in Stern’s shooting beyond a reasonable doubt does not require
that appellant be finally convicted of or even charged with the alleged bad act. See TEX.
CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1); Gomez, 380 S.W.3d at 839 (“[A] finding
of guilt for a crime is not required.”). Moreover, the jury heard evidence that appellant
had not been convicted; Stern testified that appellant “has never been convicted of
anything involving a shooting of [her].” Finally, the trial court properly instructed the
jury, the “exclusive judge of the facts,” on the burden of proof of extraneous offenses.
See Mitchell, 931 S.W.2d at 954; Mann v. State, 13 S.W.3d 89, 94–95 (Tex. App.—
Austin 2000) (considering whether trial court gave proper instruction in harm analysis),
aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001).
3. Rule 403 balancing test
Next, we analyze whether the trial court abused its discretion by overruling
appellant’s rule 403 objection and admitting Stern’s testimony. We conclude that it did
not.
Although a trial court possesses wide latitude in determining the admissibility of
evidence presented at the punishment phase of trial, admitted evidence must satisfy rule
403, which governs admission of potentially prejudicial evidence. See Rogers, 991
S.W.2d at 266. Rule 403 states: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice[.]” TEX.
R. EVID. 403. Evidence is only inadmissible for being unfairly prejudicial if it has an
undue tendency to suggest a decision on an improper basis. Montgomery v. State, 810
S.W.2d 372, 389 (Tex. Crim. App. 1990) (en banc) (op. on reh’g). Thus, relevant
evidence otherwise admissible under article 37.07 is inadmissible if it fails to comport
24
with rule 403. See Rogers, 991 S.W.2d at 266–67.
A rule 403 objection requires that the trial court balance the probative value of the
evidence against its potentially prejudicial effect. Montgomery, 810 S.W.2d at 388–90.
“In reviewing the trial court’s balancing test determination, a reviewing court is to
reverse the trial court’s judgment ‘rarely and only after a clear abuse of discretion.’”
Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery,
810 S.W.2d at 389). “Rule 403 creates a presumption of admissibility of all relevant
evidence and authorizes a trial judge to exclude such evidence only when there is a clear
disparity between the degree of prejudice of the offered evidence and its probative
value.” Id. (internal quotation marks omitted). It is therefore the objecting party’s
burden to demonstrate that the probative value is substantially outweighed by the danger
of unfair prejudice. Hinojosa v. State, 995 S.W.2d 955, 958 (Tex. App.—Houston [14th
Dist.] 1999, no pet.).
A rule 403 balancing test includes, but is not limited to, four factors: (1) the
probative value of the evidence, or how compellingly the extraneous offense evidence
serves to make a fact of consequence more or less probable; (2) the potential to impress
the jury in some irrational yet indelible way; (3) the time needed to develop the
evidence; and (4) the proponent’s need for the evidence. See Mozon, 991 S.W.2d at
847; Montgomery, 810 S.W.2d at 389–90; see also Sunbury v. State, 88 S.W.3d 229,
235 (Tex. Crim. App. 2002) (suggesting in dicta that the Montgomery factors apply to
rule 403 decisions on punishment evidence).
Appellant first argues the trial court abused its discretion by not conducting any
rule 403 balancing after he objected that Stern’s testimony was “highly prejudicial.”
We find no merit in this argument. The Court of Criminal Appeals presumes that the
trial court has engaged in the required balancing test after rule 403 is invoked and
“refuse[s] to hold that the silence of the record implies otherwise.” Williams v. State,
25
958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997); see also Santellan v. State, 939
S.W.2d 155, 173 (Tex. Crim. App. 1997) (“Although appellant asserts that the trial
court did not perform the balancing test, the trial court did not explicitly refuse to do the
test, it simply overruled appellant’s Rule 403 objections. We find nothing in the record
to indicate that the trial court did not perform a balancing test, albeit a cursory one.”).
Where the defendant objects on specific grounds and the trial court overrules the
objection, “we assume that the trial court applied [r]ule 403 and determined that the
probative value of the evidence was not substantially outweighed by any danger of
unfair prejudice.” Hinojosa, 995 S.W.2d at 957. Here, after appellant’s “highly
prejudicial” objection, the trial court simply refused to exclude Stern’s testimony.
Nothing in the record overrides the presumption that the trial court properly engaged in
rule 403 balancing. “[A] trial court is not required to affirmatively state on the record
either that he has conducted a balancing test or his reasons for the ruling.” Caballero v.
State, 919 S.W.2d 919, 922 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Nor did
appellant request that the trial court place any findings or conclusions from the
balancing into the record. See Williams, 958 S.W.2d at 196.20
Next, appellant contends that Stern’s testimony fails the rule 403 balancing test.
We must measure the trial court’s ruling to admit Stern’s testimony “against the relevant
criteria by which a [r]ule 403 decision is made.” See Mozon, 991 S.W.2d at 847.
Appellant argues that Stern’s testimony was “emotionally inflammatory” in that she
discussed her children and new grandchild; described how she begged for her life, that
the ambulance took “like forever” and she thought she was going to die, and how scared
she was and still is; and testified as to her surgeries and lasting effects. Appellant also
20
Of course, appellate review would be “facilitated” if the trial court would list its reasons in
the record, but this is not required. Montgomery, 810 S.W.2d at 393 n.4.
26
argues that the shooting was the main focus of the State’s punishment case.21
With regard to factor (1), the evidence provided by Stern was highly probative.
Stern’s evidence of this extraneous shooting—which occurred while appellant already
was on bond for the drug and retaliation22 offenses—allowed the jury to gauge whether
he potentially would continue to engage in criminal behavior upon release and thus
whether to assess his punishment at the higher end of the statutory range. TEX. PENAL
CODE ANN. § 12.33 (West 2011); see Rodriguez, 203 S.W.3d at 842; Rogers, 991
S.W.2d at 265–66. As the State argued during its punishment closing, this evidence
provided the jury with more information for it to “tailor an appropriate sentence.” See
Sunbury, 88 S.W.3d at 233–34.
With regard to factor (2), although Stern’s testimony certainly included emotional
aspects, her statements concerning how she felt during the shooting and what happened
to her as a result primarily concerned the circumstances of and her personal experience
of the extraneous bad act itself. Cf. Espinosa v. State, 194 S.W.3d 703, 711 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (testimony of witness to offense at issue,
which “included her personal observances of the events surrounding the shooting” and
that “she was scared at the time,” was “admissible for the fact-finder’s consideration
when assessing punishment”).23 In assessing punishment, jurors are permitted to make
“value judgments based on the evidence that they receive.” Rogers, 991 S.W.2d at 266.
Moreover, the record reflects that Stern, for the most part, delivered her testimony
21
We note that appellant does not limit this particular argument to Stern’s testimony.
However, appellant failed to object on the basis of rule 403 to any other State’s witness or evidence
related to the extraneous shooting.
22
During the punishment phase, Vanderberry testified that appellant threatened him during the
traffic stop. Appellant told Vanderberry, “Do you know what family I belong to?” and “We can get to
you at any time and your family.” Vanderberry understood appellant to be referring to the Mexican
Mafia, a prison gang. Appellant was charged with retaliation.
23
Further, appellant never objected, and does not argue on appeal, that any specific portion of
Stern’s testimony constituted impermissible victim-impact testimony.
27
matter of factly, without becoming overly emotional. Nor did the State emphasize any
emotional aspects of Stern’s testimony during closing. Thus, we cannot conclude that
Stern’s testimony appealed only to the jurors’ emotional side and that the jury
irrationally based its decision on emotion rather than the relevant evidence. See
Caballero, 919 S.W.2d at 922 (recognizing that “[t]estimony which emphasizes the
human impact of the crime may be prejudicial to the defense” but concluding robbery
victim’s testimony about his fear he would never see his beautiful wife and three-year-
old daughter again “did not rise to unfair prejudice”).
With regard to factor (3), we tend to agree with appellant that the State spent a
significant amount of time developing Stern’s testimony during the punishment phase.24
However, with regard to factor (4), Stern’s testimony was particularly important in that
she was the extraneous-offense complainant who identified appellant as the shooter.
While the State argued during closing that it presented other evidence to corroborate
appellant’s involvement in the shooting,25 that evidence would not have been as
compelling without Stern’s own testimony. Beyond the cell phone and ankle-
monitoring records, which provided circumstantial evidence that appellant was not at
home and instead was near Stern’s apartment around the time of the shooting, Stern
provided direct evidence identifying appellant “a hundred percent” as her shooter.
Based on our evaluation of the rule 403 balancing factors, and keeping in mind
24
Stern’s testimony on direct comprised approximately one-fourth of the State’s total
punishment case.
25
The State also presented testimony from an HPD homicide officer involved in the shooting
investigation; the man initially identified as the alleged shooter by Stern; Stern’s daughter-in-law who
was talking to Stern by cell phone during the shooting; a private investigator whom the Stern family
had hired after two prior attempted shooting incidents at their home; the person who installed
appellant’s ankle device to monitor appellant while he was on bond for the cocaine, marijuana, and
retaliation charges; a Harris County pretrial officer who testified that appellant was not at home at the
time of the shooting based on monitoring records; and an HPD officer in communication intelligence
who testified as to appellant’s movements on the morning of May 5 based on cell phone records.
28
that admissibility of evidence during punishment serves a normative, policy function,
we conclude the trial court did not abuse its discretion in concluding that the danger of
unfair prejudice did not substantially outweigh the probative value of Stern’s testimony.
See Mozon, 991 S.W.2d at 847; Rogers, 991 S.W.2d at 267. Therefore, we overrule
appellant’s third issue.
D. Appellant’s court costs issue
In his fourth issue, appellant argues that there was insufficient evidence to support
the court costs of $905 assessed against him in the judgment. Appellant requested the
district clerk include the bill of costs in the appellate record. The original clerk’s record
filed with this court did not contain a bill of costs. A few months after appellant filed
his brief, the district clerk filed a supplemental record consisting of a “Criminal Bill of
Cost.” Appellant objected to this “bill of cost” because there is no evidence to support
that it was part of the original record before the trial court. See Johnson v. State, 389
S.W.3d 513, 515 n.1 (Tex. App.—Houston [14th Dist.] 2012, pet. granted).
The State argues that the record supports an assessment of over $90526 in court
costs based on the “bill of cost” in the supplemental record and based on numerous
provisions in the Texas Code of Criminal Procedure and the Local Government Code
that authorize various court costs to be paid by appellant.
In Johnson, we held that when the record does not support the assessment of a
certain dollar amount in costs, the trial court errs in entering a specific dollar amount in
its judgment. 389 S.W.3d at 516. Further, this court has rejected supplemental records
as not being “appropriate” bills of cost when such documents do “not appear to have
been brought to the attention of the trial court judge.” Latson v. State, —S.W.3d—, No.
14-12-00559-CR, 2013 WL 4487544, at *3 (Tex. App.—Houston [14th Dist.] Aug. 22,
26
The State maintains that the amount appellant is mandated to pay by statute is $909.
29
2013, no. pet. h.) (“This court has determined that an unsigned computer screen printout
from JIMS, that does not appear to have been brought to the attention of the trial court
judge, is not an actual bill of costs as contemplated by article 103.001.”); Jelks v. State,
397 S.W.3d 759, 760 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (concluding that
a computer screen printout from JIMS dated and signed by an unidentified individual,
when printout was not presented to the trial judge, could not be considered an
appropriate bill of costs); Johnson, 389 S.W.3d at 515 n.1 (“[T]here is no indication that
this [unsigned] printout was ever brought to the attention of the trial judge.”).
While the “Criminal Bill of Costs” provides an “Assessed Date” of June 29,
2012,27 and bears a signature stamp by the district clerk, its “printout” date is April 4,
2013, which matches the date a deputy of the district clerk certified that it was a “a true
and correct copy of the original record filed and/or recorded in [the clerk’s] office . . . as
it appears on this date.” However, no such “original record” existed in the clerk’s
record as of the time the appeal was filed, nor is there any evidence in the record that
any such document was presented to or brought to the attention of the trial court before
it included the specific dollar amount in the judgment. See Latson, —S.W.3d—, 2013
WL 4487544, at *3; Jelks, 397 S.W.3d at 760; Johnson, 389 S.W.3d at 515, n.1.
Further, in Rogers v. State, we rejected the State’s argument that sufficient evidence
supported the imposed court costs based on authorization by various statutes. 402
S.W.3d 410, 420 (Tex. App.—Houston [14th Dist.] 2013, no pet. h.).
Therefore, because there is no evidence in the record to support the trial court’s
assessment against appellant of $905 as court costs, we sustain his fourth issue and
modify the trial court’s judgment to delete the specific dollar amount of costs assessed.
See Johnson, 389 S.W.3d at 517.
Appellant requests additional relief in the form of an order to the Texas
27
The trial court signed its judgment on this date.
30
Department of Criminal Justice to (1) reimburse all money that has been withdrawn
from his inmate trust account under section 501.014(e)(4) of the Texas Government
Code and (2) to refrain from withdrawing any other funds. For the same reasons
provided in Latson, we decline to order any additional relief. See —S.W.3d—, 2013
WL 4487544, at *4.
III. CONCLUSION
Having sustained appellant’s fourth issue, we modify the judgment to delete the
specific amount of court costs. Having found no reversible error otherwise, we affirm
the judgment as modified.
/s/ Tracy Christopher
Justice
Panel consists of Justices Brown, Christopher, and McCally.
Publish — TEX. R. APP. P. 47.2(b).
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