No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. VICTOR HUGO MARTINEZ, Appellant. THE STATE OF TEXAS, Appellee

Transcription

1 No CR The State Does Not Request Oral Argument. 5th Court of Appeals FILED: 12/5/11 14:00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS VICTOR HUGO MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee On appeal from Criminal District Court No. 4 of Dallas County, Texas In Cause No. F K STATE S BRIEF Counsel of Record: Craig Watkins Jaclyn O Connor Lambert Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., Lb-19 Dallas, Texas (214) (214) Fax Attorneys for the State of Texas

2 TABLE OF CONTENTS INDEX OF AUTHORITIES...iii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 RESPONSE TO ISSUE ONE... 5 The trial court did not abuse its discretion by admitting State s Exhibit No. 7, a drug ledger, into evidence... 5 STATE S CROSS-POINT The judgment should be modified to reflect the correct statute under which appellant was convicted PRAYER CERTIFICATE OF SERVICE ii

3 INDEX OF AUTHORITIES Cases Asberry v. State, 813 S.W.2d 526 (Tex. App. Dallas 1991, pet. ref d) Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) Cameron v. State, 241 S.W.3d 15 (Tex. Crim. App. 2007)... 5 Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007)... 8 Chaddock v. State, 203 S.W.3d 916 (Tex. App. Dallas 2006, no pet.)... 7 Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006)... 6 Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996)... 5, 8 Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996)... 7 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh g)... 5, 6 Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)... 9 United States v. Maggitt, 784 F.2d 590 (5th Cir. 1986)... 6 Statutes TEX. HEALTH & SAFETY CODE ANN (6) (Vernon 2003)... 1 TEX. HEALTH & SAFETY CODE ANN (a) (Vernon 2003)... 1, 10 Tex. Health & Safety Code Ann (d) (Vernon 2003)... 1 iii

4 Rules TEX. R. APP. P. 43.2(b) TEX. R. APP. P. 44.2(b)... 9 TEX. R. EVID iv

5 STATEMENT OF THE CASE Appellant, Victor Hugo Martinez, pleaded not guilty and was convicted by a jury of unlawful possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. (RR2: ; RR5: 5). See TEX. HEALTH & SAFETY CODE ANN (6), (a),(d) (West 2003). 1 On February 5, 2009, the trial court assessed punishment at eighteen years imprisonment. (RR5: 20-21). He now challenges on appeal the trial court s admission of certain evidence under Texas Rule of Evidence 403. STATEMENT OF FACTS On April 12, 2008, Dallas Police Officers Daniel Foster, Chris Wagner and two other members of the crime response team went to an apartment located at 615 North Marsalis to investigate a citizen complaint about drug sales at the location. (RR2: ; RR3: 54). The front door of the apartment was damaged, so the door opened when Officer Foster knocked on it. (RR2: 104; RR3: 56). Officer Foster saw appellant and two other men sitting around a small coffee table about five feet from the front door. (RR2: ). Appellant and another one of the men, later identified as Michael Monroe, immediately put their hands down under the chairs they were sitting in when they saw the officers. (RR2: 105, 107, 116; RR3: 18-19; RR3: 56-57). Officer Foster and Officer Wagner observed a drug scale and a white, crystal-like substance they believed to be methamphetamine sitting on the table directly in front of appellant. (RR2: 105, 108; RR3: 1 The indictment contained two enhancement paragraphs alleging prior felony convictions, but the State abandoned both paragraphs during the punishment phase of trial. (RR5: 8, 17). 1

6 57). The officers stepped into the apartment to make sure none of the drugs would be destroyed and to ensure that no one had a weapon. (RR2: 121; RR3: 57-58). The third man, Martin Martinez, identified himself as the renter of the apartment and gave the police officers consent to search. (RR2: 105, , 116, 131; RR3: 19, 20-21; RR3: 58). In addition to the scale and drugs on the table, the officers also found a small glass pipe in the chair that appellant was sitting in; a bag of methamphetamine and a bag of cocaine in the chair that Monroe was sitting in; and a drug ledger and drug scale on a bookcase. (RR2: 109; RR3: 10-11). Officer Wagner found the drug scale and drug ledger on the bookcase. (RR3: 39-40; RR3: 62-63). Based on his seven years of experience in investigating drug crimes, Officer Wagner recognized the drug ledger immediately. (RR3: 37, 40-41, 50, 63). The drug ledger had the name Victor across the top, which he found ironic since he had just met a Victor in the apartment who had methamphetamine and a drug scale sitting in front of him on the coffee table. (RR3: 64-65). The ledger also contained the names of several known drug users who lived in the same apartment complex and in the surrounding area with correlating drug amounts and dollar amounts. (RR3: 41-42, 64-65). According to Officer Wagner, the document verified the drug activity that he saw taking place in the apartment right in front of him. (RR3: 42-43). In addition, Officer Wagner had observed that appellant was more aggressive and less cooperative toward the officers. (RR3: 67). It appeared to him that appellant was in control of what was going on in the apartment. (RR3: 67). 2

7 Scott Webb, a forensic drug chemist at the Southwestern Institute of Forensic Sciences (SWIFS), tested the drugs seized in this case. (RR3: 83, 86-87). The testing revealed that State s Exhibit 1, two clear Ziploc bags containing an off-white crystalline material, contained methamphetamine in an amount of 1.45 grams and had a total weight of 20.8 grams. (RR3: 89-91). State s Exhibit 2, one clear Ziploc bag containing a white crystalline material, contained methamphetamine in an amount of 2.2 grams and had a total weight of 43 grams. (RR3: 90-91). Dallas Police Sergeant Barry Ragsdale, a 13-year veteran of the Narcotics Division, testified as an expert on methamphetamine manufacturing and distribution. (RR3: 94-96). Sergeant Ragsdale testified that it is common to find scales and drug ledgers in a drug house. (RR3: ). He examined the papers collected from the apartment in this case and verified that they appear to be drug notes or a drug ledger. (RR3: ). He testified that the drug amounts and dollar amounts contained in the drug ledger are consistent with low-level drug sales. (RR3: 114). In Sergeant Ragsdale s expert opinion, based on the amount of methamphetamine at the apartment along with the scales and drug ledger, he believed that this location was a drug distribution enterprise and that the person possessing the drugs did so with the intent to deliver. (RR3: ). Martin Martinez, appellant s brother, testified for the defense. (RR3: 126). Martin testified that he has been using methamphetamine for about ten years. (RR3: 130). He regularly smoked with other people in his apartment complex and sometimes would sell to them. (RR3: 131, 134). Martin claimed that the drug ledger belonged to him and helped him keep track of who owed him money for drugs. (RR3: 135, ). 3

8 According to Martin, the Victor listed on the drug ledger was not appellant, it was his upstairs neighbor. (RR3: ). He admitted that appellant often smoked methamphetamine with him, but he claimed that appellant never provided him with any drugs or sold drugs out of his apartment. (RR3: 137, , 149). Martin claimed that all the drugs present in the apartment the day of the offense belonged to him and that appellant had nothing to do with it. (RR3: 140, , 179). Officer Wagner testified in rebuttal. He testified that, once arrested, the three men were placed in separate squad cars to be taken to the police station. (RR3: 208). Officer Wagner took appellant s brother, Martin Martinez, into custody. (RR3: ). After reading Martin his Miranda rights, Martin waived his rights and agreed to talk to him. (RR3: 209). At the scene, appellant pretended to not understand English and the men had referred to him as Hugo, so Officer Wagner inquired as to appellant s real name and Martin told him. (RR3: ). Martin also told Officer Wagner that appellant and Michael had come to his apartment that day to sell him methamphetamine. (RR3: 210). SUMMARY OF ARGUMENT The trial court did not abuse its discretion by admitting the drug ledger into evidence. Considering all the factors, the trial court could have reasonably concluded that the probative value of the evidence was not substantially outweighed by the counterfactors. 4

9 ARGUMENT RESPONSE TO ISSUE ONE The trial court did not abuse its discretion by admitting State s Exhibit No. 7, a drug ledger, into evidence. In his sole issue presented, appellant contends that the trial court abused its discretion in admitting a drug ledger into evidence because any possible probative value of the evidence was substantially outweighed by unfair prejudice, contrary to Texas Rule of Evidence 403. His contention is without merit. Standard of Review and Applicable Law A trial court s decision regarding the admissibility of evidence is reviewed under an abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh g). Because trial courts are in the best position to decide questions of admissibility, appellate courts uphold a trial court s admissibility decision when that decision is within the zone of reasonable disagreement. Id. Evidence that is relevant and admissible may be excluded under Texas Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. TEX. R. EVID Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at A trial court, when undertaking a rule 403 analysis, must balance the inherent probative force of the proffered evidence and 5

10 the proponent s need for that evidence against competing factors including (1) any tendency of the evidence to suggest decision on an improper basis, (2) any tendency of the evidence to confuse or distract the jury from the main issues, (3) 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 (4) 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, (Tex. Crim. App. 2006). A reviewing court should reverse the trial court s balancing determination rarely and only after a clear abuse of discretion. Montgomery, 810 S.W.2d at 392 (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)). The Trial Court Acted Within Its Discretion Here, the trial court could have reasonably concluded that both the inherent probative force of the evidence and the State s need for the evidence were considerable. The person to whom the drugs belonged was a highly contested fact at trial. The State s witnesses testified that the drugs and scale were on the table directly in front of appellant when they came into the apartment and that he appeared to be the person in charge of what was going on in the apartment. Further, the State presented testimony that appellant s brother, Martin, told the arresting officer that appellant had come to his apartment the day of the offense to sell him drugs. However, Martin testified at trial that the drugs belonged to him and that appellant had nothing to do with them. The drug ledger, which had appellant s name across the top and several known drug users with correlating drug amounts and dollar amounts, tended to make less probable appellant s 6

11 argument that he was merely present and was not the person who was selling drugs from the location. As to the counter-factors, the trial court could have reasonably concluded that the complained-of evidence did not tend to suggest that the jury decide the case on an improper basis. The evidence at issue was no more serious and potentially inflammatory than all the other evidence presented to the jury. There is also nothing in the record to indicate that the jury was not equipped to evaluate the probative force of the evidence. None of the complained-of testimony concerned complicated or technical subject matters. Moreover, the trial court instructed the jury that any testimony regarding extraneous offenses committed by appellant could be considered only if they believed appellant committed the offenses beyond a reasonable doubt and even then only in determining his intent. 2 (CR: 57). This minimized any potential for improper influence on the jury. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (although extraneous offenses always possess the potential to influence the jury, any impermissible inference of character conformity can be minimized through a limiting instruction); see also Chaddock v. State, 203 S.W.3d 916, 924 (Tex. App. Dallas 2006, no pet.) (trial court s limiting instruction regarding the purposes of the complained-of evidence minimized any potential for improper influence on the jury). 2 Specifically, the limiting instruction stated: You are instructed that if there is any testimony before you in this case regarding the defendant s having committed offenses, if ant, other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed; and even then you may only consider the same in determining the intent of the defendant, if any, in connection with the offense on trial and for no other purpose. (CR: 57). 7

12 In addition, the State did not spend a great deal of time developing this testimony. Officer Wagner s testimony regarding the drug ledger is only seven typed pages and Officer Ragsdale s testimony regarding the drug ledger is only four typed pages in a record that consists of five volumes. (RR3: 63-67, 80-81, ). The State only briefly mentioned the testimony in closing and only did so in reference to appellant s intent to deliver and to refute the defensive theory that the drugs belonged to appellant s brother. (RR4: 10-11, 28-29). Thus, the trial court also could have reasonably concluded that the testimony did not tend to confuse or distract the jury from the primary issues and that it did not cause undue delay or constitute the needless presentation of cumulative evidence. Although Officer Wagner s and Officer Ragsdale s testimony that the drug ledger demonstrates that appellant was selling drugs from the apartment is undoubtedly prejudicial, it is not unfairly prejudicial under rule 403. Unfair prejudice does not arise from the mere fact that evidence injures a party s case. It is a given that virtually all testimony and evidence will be prejudicial to the opposing party, as that is the central point of offering evidence. See Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). It is only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value that rule 403 is applicable. See Jones, 944 S.W.2d at 653. In light of the foregoing discussion, it is clear that the complained-of testimony was not so prejudicial as to require exclusion. Considering all the factors, the trial court could have reasonably concluded that the probative value of the evidence was not substantially outweighed by the counter- 8

13 factors. This decision was not outside of the zone of reasonable disagreement. Accordingly, the trial court did not abuse its discretion in admitting the evidence. Error, if any, was harmless Furthermore, even assuming arguendo that the trial court s admission of this evidence was an abuse of discretion, any error was harmless. Under Texas Rule of Appellate Procedure 44.2(b), an appellate court is to disregard any non-constitutional error unless it affects appellant s substantial rights. TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, the appellate court has a fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Here, appellant was arrested in an apartment where drugs were being sold. The police officers recovered methamphetamine, cocaine, a small glass pipe and two drug scales in addition to the drug ledger. One of the scales and twenty grams of methamphetamine were found on the table right in front of where appellant was sitting. Appellant was the older of the men and appeared to the officers to be in charge of what was going on in the apartment. In addition, appellant s brother told the arresting officers that appellant had come to the apartment that day to sell him drugs. Thus, the record as a whole demonstrates that there is overwhelming evidence to support appellant s guilt, regardless of the admission of this evidence. As such, this Court should have a fair assurance that the admission of this evidence did not have a substantial and injurious effect or influence on the jury s verdict. 9

14 overruled. Based on the foregoing, appellant s sole issue is without merit and should be STATE S CROSS-POINT The judgment should be modified to reflect the correct statute under which appellant was convicted. The judgment in this case contains a clerical error. The record reflects that appellant was charged and convicted of possession with intent to deliver methamphetamine, an offense defined under section of the Health and Safety Code. (CR: 2; RR2: ; RR5: 5). See TEX. HEALTH & SAFETY CODE ANN (6), (a). The judgment, however, incorrectly lists the statute for the offense as section of the Health and Safety Code. This Court has the power to correct and modify the trial court s judgment to make the record speak the truth when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, (Tex. App. Dallas 1991, pet. ref d). In this case, this Court has the necessary information to correct the judgment. The State requests that this Court modify the judgment accordingly. TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at

15 PRAYER The State prays that this Honorable Court will: (1) affirm the trial court s judgment, and (2) modify the judgment to reflect the correct statute under which appellant was convicted. Respectfully submitted, Craig Watkins Jaclyn O Connor Lambert Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas (214) (214) fax CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on appellant s attorney, Adam L. Seidel, Premier Place, Suite 980, 5910 N. Central Expwy, Dallas, Texas 75206, via and U.S. Mail on December 2, Jaclyn O Connor Lambert 11