Date: 02-19-2017

Case Style:

Case Number: 01-15-00958-CR

Judge: Terry Jennings

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Daniel McCrory
The Honorable Kim K Ogg

Defendant's Attorney:

name

Description: Harris County Precinct 8 Constable’s Office (“HCCO”) Deputy J. Wingfield
testified that while on patrol on the night of December 31, 2014, he saw appellant
driving a truck at the intersection of Durant Avenue and Spencer Highway in
Pasadena. After appellant failed to signal his turn onto Spencer Highway,
Wingfield began following behind him. Wingfield then saw appellant fail to
properly signal before making a lane change. Wingfield activated the overhead
lights on his patrol car and initiated a traffic stop.
When Deputy Wingfield approached the driver’s side of the truck and spoke
with appellant, he noted that appellant seemed nervous. Appellant’s hands were
shaking and “a vein in the side of his neck” was “pulsating.” Appellant’s
passenger, Jennifer Hurd, was “a little bit more nervous” than appellant. She was
“shaking and kind of all over the place,” and based on his training and experience,
Wingfield associated her behavior with “drug use.” He noted that the inside of the
truck was cluttered with clothing and “assorted miscellaneous items.” And after he
saw, sitting in plain view, several soda straws that had been cut into short pieces,
which “are commonly used to snort cocaine,” Wingfield asked appellant and Hurd
to step out of the truck.
Deputy Wingfield further testified that after obtaining appellant’s consent,
he searched the truck. He found spoons with burn marks on them, needles, empty
baggies, a digital scale, and, in the center console between the driver’s and
passenger’s seats, a gray bag. Inside of the gray bag was an orange pill bottle
bearing a label with appellant’s name and containing three little plastic baggies,
one of which had a picture of “red dice” printed on it. The baggies contained 6.4
grams of methamphetamine. Wingfield noted that the orange pill bottle was “the
only pill bottle” that he found.
HCCO Deputy A. Fogle testified that while on patrol on December 31, 2014,
she saw Deputy Wingfield conducting a traffic stop and stopped to assist. While
Wingfield was speaking with appellant, Fogle went to the passenger side of
appellant’s truck and began speaking with Hurd. Fogle noted that Hurd appeared
to be “very nervous” and was “kind of messing with her hands and fiddling a lot.”
Hurd’s speech was “very rapid,” and she was “kind of look[ing] around” and
avoiding eye contact with Fogle. Fogle explained that Hurd’s behavior indicated
that she may have been under the influence of narcotics. When Fogle asked Hurd
why she was so nervous, Hurd replied that she did not want to speak in front of
appellant. After Hurd exited the truck, she handed Fogle a black eyeglasses case.
Inside the case was a spoon with black burn marks, several syringes and needles,
and a small bag containing a “very tiny crystal-like substance.”
Deputy Fogle further testified that Deputy Wingfield had found in the
passenger’s side of the truck, near the center console, a pink makeup bag
containing several pills, which Fogle sorted through and identified. Fogle noted
that in the gray bag that Wingfield had found “shoved down” in the right side of
the driver’s seat, near the center console, was an orange pill bottle bearing a label.
However, she could not recall what was printed on the label. Inside the orange pill
bottle, Fogle saw a small bag, with “red on it,” containing a “crystal-like
substance.” She noted that no other pill bottles were recovered from inside the
truck.
The trial court admitted into evidence a dash-camera videotape recording
from Deputy Wingfield’s patrol car. The videotape shows Hurd giving Deputy
Fogle the eyeglasses case; Wingfield and Fogle searching the truck; Wingfield
removing a gray bag from the truck; and Wingfield removing an orange pill bottle
from the gray bag. Visible in the videotape is the fact that the pill bottle has a label
affixed.


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Dr. Warren Samms, a director of toxicology and chemistry at the Harris
County Institute of Forensic Science (“IFS”), testified that the white crystals in the
“small ziplock bag with red dice design” tested positive for methamphetamine.
Scott Vajdos, a former forensic chemist at IFS, testified that the “small ziplock
bag” with a “red dice design” contained white crystals weighing 5.097 grams.
Hurd testified that on December 31, 2014, while she was staying with a
friend in Pasadena, she asked appellant, whom she had known for a few months,
for a ride to visit another friend at a hotel near Hobby airport. Appellant arrived to
pick her up at “close to midnight” in a truck that belonged to a mutual
acquaintance who was a known drug user. Although Hurd had previously been in
the truck five or six times, she had never before been in the truck with appellant.
Hurd explained that she had been using heroin that night and was carrying heroin
and needles inside a sunglasses case in her purse. However, she did not have any
methamphetamine; the orange pill bottle found in the truck did not belong to her;
and she had not been in possession of any pill bottles belonging to appellant.
During its direct examination of Hurd, the State asked, “Do you and
[appellant] commonly get together and use illegal drugs, specifically
methamphetamines?” Appellant objected, and the following discussion took place
outside the presence of the jury:
THE COURT: So, State is asking questions about the previous nature of the relationship between . . . [appellant]


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and Ms. Hurd and we’re dealing with this outside the presence of jury. The anticipated response is that, at least down the road, is that they used to hang out and do drugs together. Obviously the defense will object and the State’s response to that objection is? . . . [State]: Judge, the State’s response is that I believe this is relevant evidence for the jury to consider. I anticipate that the defense is going to be that the drugs did not belong to [appellant], that they belonged, at least partially, if not entirely, to Ms. Hurd. But Judge, I think it becomes relevant that the jury understand that it was common practice for the two of them to use narcotics together. This will also go toward the State’s theory that this was, at the very least, joint possession of the narcotics that were found within the vehicle. . . . . [Appellant]: Our response is that it is character evidence. The State’s sole purpose for entering this into evidence is to prove, by character, past character, that the defendant had used drugs before and is using drugs now. That is impermissible, and that’s what we are objecting to. There has not been an implication, basically, as to whose drugs were in the car except another person was in the car. There’s been no attack or no theory that there was some type of conspiracy or conscious effort to plant drugs by this defendant or anybody else. The defendant’s in somebody else’s car and this defendant admittedly had drugs in the car. That’s all that’s been suggested so far by the evidence, not necessarily by the defense. THE COURT: I’m going to allow the State to ask that line of questioning, but it needs to be very short and very tight and without a lot of unnecessary explanation. [Counsel for appellant], that being the Court’s


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ruling, . . . there will be an instruction [to] the jury . . . .

After the jury returned to the courtroom, the State re-asked its question:
Ms. Hurd, I’m going to go back and ask you a question I started asking you before the jury was excused. It’s going to be a little more exact though. Do you and [appellant] commonly get together and use illegal drugs, specifically methamphetamines?

The trial court overruled appellant’s objection and then instructed the jury as
follows:
You are instructed that if there is any evidence before you in this case regarding the defendant’s committing an alleged offense other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense, if any, and even then, you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.

Hurd then answered the State’s question, “Yes, sir.”
Standard of Review
We review a trial court’s decision regarding the admissibility of evidence for
an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011). A trial court abuses its discretion if it acts arbitrarily or unreasonably,
without reference to any guiding rules or principles, and only if its decision is “so
clearly wrong as to lie outside the zone within which reasonable people might
disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008);


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Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). A trial court
does not abuse its discretion if there is evidence supporting its decision. Osbourn
v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s
evidentiary ruling if it is correct on any theory of law applicable to the case. De La
Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Extraneous-Offense Evidence
In his sole issue, appellant argues that the trial court erred in allowing
Hurd’s testimony about his prior use of methamphetamines because her testimony
constituted inadmissible character evidence. See TEX. R. EVID. 404(a). Appellant
further argues that the evidence was harmful because “[a]bsent this evidence, it
appears that the jury would have given weight to the defense that the truck [he]
was driving was so cluttered with illegal substances that it is reasonable to believe
that [he] was not in possession of a controlled substance.” The State argues that
the trial court did not err in admitting Hurd’s testimony about appellant’s prior use
of methamphetamines because the testimony established appellant’s intentional
and knowing possession of the methamphetamine found in the truck he was
driving.
Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” TEX. R. EVID. 401. Evidence of a


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defendant’s character is generally not admissible to prove that he acted in
conformity with that character on a particular occasion. See TEX. R. EVID. 404(a);
Mayes v. State, 816 S.W.2d 79, 86 (Tex. Crim. App. 1991) (rule 404(a) “ensures
that a person is tried for the offense he has allegedly committed, and not for the
type of person that he is”). Also, evidence of a defendant’s extraneous offenses or
prior wrongful acts is generally not admissible as evidence that a defendant acted
in conformity with his character by committing the charged offense. See TEX. R.
EVID. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004);
Montgomery, 810 S.W.2d at 390.
However, evidence of extraneous offenses or wrongful acts may be
admissible if it has relevance apart from its tendency “to prove the character of a
person in order to show action in conformity therewith.” TEX. R. EVID. 404(b).
These permissible purposes include proof of intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, if it is material to a contested issue in
the case. See id.; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003);
Wingfield v. State, 197 S.W.3d 922, 925 (Tex. App.—Dallas 2006, no pet.).
Further, evidence of extraneous offenses or prior acts is admissible to rebut a
defensive theory. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009);
Powell v. State, 63 S.W.3d 435, 439–40 (Tex. Crim. App. 2001). A defensive
theory may be raised in a defendant’s opening statement. See Powell, 63 S.W.3d


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at 439; Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.]
2008, no pet.). When, as here, the defense chooses to make its opening statement
immediately after the State’s opening statement, the State may reasonably rely on
this defensive opening statement as to what evidence the defense intends to present
and rebut this anticipated defensive evidence during its case-in-chief, as opposed to
waiting until rebuttal. See Bass v. State, 270 S.W.3d 557, 564 n.7 (Tex. Crim.
App. 2008).
A person commits the offense of possession of a controlled substance if he
“knowingly or intentionally possesses” a controlled substance, including
methamphetamine. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (Vernon
2010); see also id. § 481.002(5) (Vernon Supp. 2016), § 481.102(6) (Vernon
2010). To prove that appellant possessed methamphetamine, the State was
required to show that he (1) exercised control, management, or care over
methamphetamine and (2) knew that the matter was methamphetamine. See
Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011); see also TEX.
HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon Supp. 2016) (“‘Possession’
means ‘actual care, custody, control or management.’”); TEX. PENAL CODE ANN.
§ 6.03(a), (b) (Vernon 2011) (defining intentionally and knowingly).
Here, appellant’s defense at trial was that the methamphetamine found in the
truck that he was driving was not his and instead belonged either to the owner of


11
the truck or to Hurd. Thus, appellant’s knowledge and possession were at issue in
the case. “While the general rule is that extraneous offenses are inadmissible as
evidence of guilt, there are certain exceptions to the general rule, such as the
exception that admits evidence of extraneous offenses to show knowledge.” Arnott
v. State, 498 S.W.2d 166, 176 (Tex. Crim. App. 1973) (evidence of defendant’s
past heroin possession admissible to show knowing possession of heroin in instant
case). “Evidence that the accused has, in the past, [possessed] the narcotic of
which he is now alleged to have possession is of probative value in establishing
knowledge.” Id. (internal citations omitted); see, e.g., Stewart v. State, No.
10-14-00183-CR, 2015 WL 3823273, at *3 (Tex. App.—Waco June 18, 2015, pet.
ref’d) (mem. op., not designated for publication); Hestand. v. State, No.
05-06-013205-CR, 2007 WL 4239200, at *6 (Tex. App.—Dallas Dec. 4, 2007, pet.
struck) (not designated for publication) (evidence of defendant’s prior use of
methamphetamine admissible to show knowing or intentional possession of
methamphetamine in instant case); Wingfield, 197 S.W.3d at 925 (evidence of
prior narcotics use admissible to show defendant’s knowing or intentional
possession of marijuana).
Hurd’s testimony that appellant had at other times used methamphetamine
constituted circumstantial evidence that he knowingly possessed the
methamphetamine found in the pill bottle bearing his name in the truck he was


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driving; it was admissible to rebut his defensive theory that he did not knowingly
possess the methamphetamine and it belonged to the owner of the truck or to Hurd.
See, e.g., Rios v. State, No. 08-12-00089-CR, 2014 WL 2466100, at *6 (Tex.
App.—El Paso May 30, 2014, no pet.) (not designated for publication) (evidence
of prior narcotics use admissible to rebut defensive theory defendant had no
knowledge of existence of cocaine in his pocket because it was planted on him);
Wingfield, 197 S.W.3d at 925 (evidence of prior narcotics use admissible to rebut
theory defendant did not knowingly possess marijuana found in her bedroom, as
others had access to apartment).
We conclude that the trial court could have reasonably concluded that the
complained-of portion of Hurd’s testimony had relevance beyond
character-conformity purposes. See Williams, 301 S.W.3d at 687. Accordingly,
we hold that the trial court did not err in admitting Hurd’s testimony.
We overrule appellant’s sole issue.

Outcome: