Charles Lynch v. the State of Texas

Opinion issued June 15, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00668-CR
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CHARLES LYNCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 15-CR-3172
MEMORANDUM OPINION ON REMAND
Charles Lynch was convicted for possession with intent to deliver between
4 and 200 grams of cocaine, for which he was sentenced to 45 years’
imprisonment.1 See TEX. HEALTH & SAFETY CODE § 481.102(3)(D), 481.112(a),
(d). On appeal, Lynch argues that the trial court abused its discretion by admitting
two extraneous offenses in the form of penitentiary packets and by admitting
testimony, which he alleges was hearsay, regarding who lived in the house where a
search warrant was executed. On original submission, this Court reversed the
judgment, holding that the trial court erred in admitting the extraneous offenses.
Lynch v. State, No. 01-17-00668-CR, 612 S.W.3d 602, 606 (Tex. App.—Houston
[1st Dist.] 2020), rev’d No. PD-1089-20, 2022 WL 3640526, at *1 (Tex. Crim.
App. Aug. 24, 2022). On petition for discretionary review, the Court of Criminal
Appeals reversed, holding that the trial court did not abuse its discretion in
admitting the extraneous offenses. See Lynch v. State, 2022 WL 3640526, at *8–9
(Tex. Crim. App. Aug. 24, 2022). The Court of Criminal Appeals remanded the
appeal to this Court to consider Lynch’s remaining issue: whether the trial court
reversibly erred by admitting certain testimony. Id. at *9.
We conclude that the trial court did not abuse its discretion by admitting the
testimony. We affirm the judgment of the trial court.
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Authorities found 7.8 grams of a rock-like substance in Lynch’s home. At trial, a
chemist testified that he tested 4.7 grams of the substance, concluding that it
contained cocaine. The chemist did not test the remainder of the substance because
the minimum quantity for a first-degree felony offense of possession with intent to
deliver, 4 grams, had been established.
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Background
The case is before us on remand from the Court of Criminal Appeals. The
factual and procedural backgrounds of the case are fully discussed in the prior
opinions of this Court and the Court of Criminal Appeals. See Lynch, 2022 WL
3604526 at *1–4 (Court of Criminal Appeals); Lynch, 612 S.W.3d at 606–08 (court
of appeals). We do not repeat them here.
Hearsay
On remand, we consider whether the trial court erred in admitting testimony
from Sergeant Gandy regarding who lived in the house where a search warrant was
issued. Lynch argues that the testimony was inadmissible hearsay. The State argues
that the testimony was not hearsay, and if it was hearsay, it was admissible under
the rule of optional completeness. See TEX. R. EVID. 107. The State also argues that
even assuming the admission was erroneous, it is not reversible error.
A. Relevant Testimony
Sergeant Gandy was the State’s first witness. Among other topics, he
testified about the surveillance he conducted on Lynch’s house as a narcotics
officer and about the day he executed a search warrant at the residence. When the
search warrant was executed, Sergeant Gandy encountered four people in the
house: Lynch, Tina Moreno, Norma Myers, and Phillip Darden. Everyone was
interviewed separately. Sergeant Gandy testified that Lynch said that all four
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people lived in the house and had access to it. Later, on cross-examination by
Lynch’s attorney, Sergeant Gandy was asked how many of the four people said
that Lynch was the only person who lived in the house. Before Sergeant Gandy
could answer, the following transpired:
Lynch’s attorney: I’ll make it easier for you. None of those people
said Mr. Lynch is the only person that lived there;
is that correct?
Sergeant Gandy Correct.
Lynch’s attorney: Okay, every one of those people that lived, that
were in that home, said that Tina Moreno also
lived in that home?
Sergeant Gandy: Correct.
Outside the presence of the jury, Lynch’s attorney requested to admit into
evidence videotaped interviews with each of the four people. Sergeant Gandy
watched all four videos during a break in his cross-examination. Lynch’s attorney
eventually offered only Moreno’s interview into evidence, and it was admitted
without objection.
On redirect examination, the State asked Sergeant Gandy who Lynch said
lived in the house with him. Sergeant Gandy replied that Lynch said “everybody”
lived in the house and “everybody had access to everything.” The State next asked
Sergeant Gandy who Norma Myers said lived in the house. Lynch’s attorney
objected based on hearsay. The State responded that there had been a misstatement
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of the facts in evidence when Sergeant Gandy responded to Lynch’s attorney’s
cross-examination that “everyone” said that Moreno and Lynch lived in the house.
The State argued that each of the four people had a different answer when asked
who lived in the house. The court overruled Lynch’s hearsay objection, and
Sergeant Gandy testified that Norma Myers told him that Moreno and Lynch lived
in the house. Myers did not mention Phillip Darden.
The State then asked Sergeant Gandy who Phillip Darden said lived in the
house. Lynch’s attorney objected again, and the objection was overruled. Sergeant
Gandy responded that Darden stated that Moreno, Myers, and Lynch lived in the
house. Finally, Sergeant Gandy testified without objection that Moreno stated that
she lived in the house with Lynch and had done so for a month. Sergeant Gandy
testified that each of the four individuals had a different story about who lived in
the house.
B. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A
trial court abuses its discretion if the decision falls outside the zone of reasonable
disagreement. Id. at 83. Before we may overrule a trial court’s evidentiary
decision, we must hold that the trial court’s ruling was “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Id. (quoting
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Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)). We will uphold the
trial court’s evidentiary ruling if it is correct on any theory of law applicable to that
ruling. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
C. Analysis
Lynch argues that statements to Sergeant Gandy by Myers and Darden
regarding who lived in the house were inadmissible hearsay. The State responds
that the testimony was not offered for the truth of the matter asserted, and
therefore, is not hearsay. The State contends that the testimony was offered to
show that each of the four people had a different response to Sergeant Gandy when
asked who lived in the house. We agree.
Hearsay is a statement, other than one made by the declarant while testifying
at trial, which is offered to prove the truth of the matter asserted. TEX. R. EVID.
801(d). Thus, a statement not offered to prove the truth of the matter, but offered
for some other reason, is not hearsay. Guidry v. State, 9 S.W.3d 133, 152 (Tex.
Crim. App. 1999) (testimony regarding name and phone number in address book
not hearsay because not offered to prove owner of phone number but offered as
circumstantial evidence of conspiracy involving defendant). “An extrajudicial
statement or writing which is offered for the purpose of showing what was said
rather than for the truth of the matter stated therein does not constitute hearsay.”
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Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (emphasis in
original).
Statements by Myers and Darden to Sergeant Gandy regarding who lived in
the house were not offered to prove the identity of the actual occupants of the
house. The statements were offered to prove that each person, Lynch, Moreno,
Myers, and Darden, gave Sergeant Gandy a different answer when he asked who
lived in the house. The State did not assert that the statements were truthful, and
their relevance does not turn on their accuracy. See Humphrey v. State, No. 01-08-
00820-CR, 2012 WL 4739925, at *2 (Tex. App.—Houston [1st Dist.] Oct. 4, 2012,
no pet.) (mem. op., not designated for publication) (holding statements by officer
during interview were not hearsay because offered to prove what officers said
during interview to elicit responses from defendant). Thus, the extrajudicial
statements were offered for the purpose of showing what was said, rather than for
proving the truth of the matter, and they do not constitute hearsay. Dinkins, 894
S.W.2d at 347. We conclude that the trial court did not abuse its discretion in
overruling Lynch’s hearsay objections to the statements made by Myers and
Darden to Sergeant Gandy.
Moreover, even assuming the statements were erroneously admitted hearsay,
the error does not require reversal. The erroneous admission of evidence is non-
constitutional error. TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93
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(Tex. Crim. App. 2011). Non-constitutional error requires reversal only if it affects
the appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Barshaw, 342 S.W.3d at
93. “A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d
266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776
(1946)). We will not overturn a criminal conviction for non-constitutional error if,
after examining the record, we have fair assurance the error did not influence the
jury or influenced the jury only slightly. See Barshaw, 342 S.W.3d at 93.
An examination of the entire record demonstrates that the complained-of
testimony was unlikely to have influenced the jury’s verdict. The jury was required
to decide whether, beyond a reasonable doubt, Lynch intentionally and knowingly
possessed cocaine with intent to deliver it. The ultimate dispute was between
Lynch’s culpability and Moreno’s culpability. The complained-of statements from
Darden and Myers to Sergeant Gandy neither enhanced Lynch’s culpability nor
weakened Moreno’s culpability. Both Darden and Myers said that Lynch and
Moreno lived in the house. The State did not focus on which of the four people
should be believed over any other regarding who lived in the house. The focus at
trial was on the physical evidence at the scene and challenging Moreno’s
credibility, since she changed her story several times. Even assuming the
admission of the statements was erroneous, the error does not require reversal
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because it did not have a substantial and injurious effect or influence on the jury’s
verdict. Barshaw, 342 S.W.3d at 93.
We overrule Lynch’s hearsay issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Rivas-Molloy, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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