Erric Bernard Portis, Jr. v. State ( 2016 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-15-00152-CR
    ERRIC BERNARD PORTIS, JR.,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 361st District Court
    Brazos County, Texas
    Trial Court No. 13-05016-CRF-361
    MEMORANDUM OPINION
    Erric Portis, Jr. was convicted of two counts of aggravated robbery and was
    sentenced to ninety years in prison on each count. TEX. PENAL CODE ANN. § 29.03 (West
    2011).    Portis complains that the trial court abused its discretion by allowing the
    admission of evidence regarding (1) his prior incarceration to prove identity; (2) evidence
    of a carjacking that took place earlier in the day before the aggravated robbery; (3)
    evidence of comments made by Portis during the investigation regarding going back to
    prison; (4) evidence of a comment Portis yelled at a detective during the investigation;
    and (5) extraneous offense evidence admitted during the rebuttal portion of the
    punishment phase of the trial. Because we find no reversible error, we affirm the
    judgments of the trial court.
    ADMISSION OF EVIDENCE STANDARD OF REVIEW
    Each of Portis's five issues complain that the trial court abused its discretion in the
    admission of evidence during the trial.1 We review the trial court's decision to admit or
    exclude evidence under an abuse of discretion standard. Martinez v. State, 
    327 S.W.3d 727
    , 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretion unless its
    decision to admit or exclude the evidence lies outside the zone of reasonable
    disagreement. See 
    Martinez, 327 S.W.3d at 736
    ; De La Paz v. State, 
    279 S.W.3d 336
    , 343-44
    (Tex. Crim. App. 2009). If the trial court's ruling on admissibility is correct under any
    applicable legal theory, we will hold that the trial court did not abuse its discretion even
    if it gave a wrong or incomplete reason for the ruling. See De La 
    Paz, 279 S.W.3d at 344
    .
    THE TATTOO
    In his first issue, Portis complains that the admission of testimony regarding a
    conversation that took place between Portis and Donte Jackson regarding tattoos on
    Portis's hand was erroneous pursuant to Rule 403 of the Rules of Evidence. Jackson, a
    1 Because this is a memorandum opinion and the parties are familiar with the facts, we recite only those
    facts necessary to the disposition of each issue. See TEX. R. APP. P. 47.1, 47.4.
    Portis v. State                                                                                  Page 2
    correctional officer at TDCJ, was a resident of an apartment complex near the bank where
    the robbery took place. The day of the robbery, Portis approached Jackson from an older
    white Ford Taurus and asked to use his phone. During this conversation, Jackson asked
    Portis about a tattoo Jackson saw on Portis's hand because it was of very poor quality and
    looked like a tattoo inmates commonly get in prison. Portis allegedly told Jackson that
    he had gotten a "prison tattoo" while he was incarcerated for a "couple of years in the
    Stiles Unit." After Jackson testified to the substance of their entire discussion regarding
    the tattoo, Portis then objected "to the couple-of-years comment" pursuant to rules 401,
    403, and 404(b) of the Rules of Evidence. The trial court overruled his objection but gave
    the jury a limiting instruction at Portis's request that the jury could only consider the
    evidence for purposes of identity. The State argues that Portis's objection was not timely.
    An objection is timely if it is made as soon as the ground for the objection becomes
    apparent, i.e., as soon as the defense knows or should know that an error has occurred.
    TEX. R. APP. P. 33.1(a)(1); Neal v. State, 
    256 S.W.3d 264
    , 279 (Tex. Crim. App. 2008).
    Generally, this occurs when the evidence is admitted. Dinkins v. State, 
    894 S.W.2d 330
    ,
    355 (Tex. Crim. App. 1995). If a party fails to object until after an objectionable question
    has been asked and answered, and he can show no legitimate reason to justify the delay,
    his objection is untimely and error is waived. 
    Id. In this
    instance, Portis had answered several questions about the poor quality of
    his tattoo being because it was done in prison and he asked Jackson if he was a
    Portis v. State                                                                       Page 3
    correctional officer. The State asked Jackson if Portis had told him where he was locked
    up and Jackson responded that yes, he did. The State then asked what he said and
    Jackson then responded that Portis had done "a couple of years down at the Stiles Unit."
    The State then said, "Okay" and then Portis made his objection. This was not timely and
    therefore, error has not been preserved regarding this complaint. We overrule issue one.
    THE CARJACKING
    In his second issue, Portis complains that the trial court abused its discretion in
    allowing the victim of the carjacking to testify regarding the details of how and where the
    white Ford Taurus that was used as a getaway vehicle in the robbery was stolen from
    him. Portis objected to this testimony pursuant to Rules 404(b) and 403. However, later
    in the trial, one of Portis's accomplices testified to the same details as the victim in the
    carjacking without objection.
    It is well-established "erroneously admitted evidence will not result in reversal
    when other such evidence was received without objection, either before or after the
    complained-of ruling." Coble v. State, 
    330 S.W.3d 253
    , 282 (Tex. Crim. App. 2010); see also
    Estrada v. State, 
    313 S.W.3d 274
    , 302 n.29 (Tex. Crim. App. 2010). Because of the testimony
    of the accomplice without objection, if there was any error in the admission of the victim's
    testimony, it was harmless. 
    Coble, 330 S.W.3d at 282
    ; 
    Estrada, 313 S.W.3d at 302
    n.29. We
    overrule issue two.
    Portis v. State                                                                       Page 4
    WILL NOT GO BACK TO PRISON
    In his third issue, Portis complains that the trial court abused its discretion by
    allowing a detective to testify that Portis had told him that "he would die in his tracks
    before he went back to prison." This statement was made several weeks after the robbery.
    The investigation had shown that the number that Portis had called from Jackson's cell
    phone was connected to Portis's girlfriend. Three detectives went to Portis's girlfriend's
    residence and one detective spoke with Portis outside of the residence while the other
    two spoke with the girlfriend inside. The detective asked Portis about the details of the
    robbery. Portis denied driving a white Ford Taurus or having been to the apartment
    complex where Jackson let Portis use his cell phone. Portis was uncooperative with the
    detective and told him to arrest him if he was going to do so but that Portis would not
    answer any more questions. The statement at issue was made at some point during that
    conversation. Portis objected pursuant to rules 401, 403, 404(b), and 609 of the Rules of
    Evidence.
    Even if we assume without deciding that the admission of this statement was
    erroneous, we do not find that Portis was harmed by its admission. The purported
    erroneous admission of evidence is non-constitutional error and is subject to a harm
    analysis under Texas Rule of Appellate Procedure 44.2(b). See Motilla v. State, 
    78 S.W.3d 352
    , 355 (Tex. Crim. App. 2002). Under Rule 44.2(b), we disregard all non-constitutional
    errors that do not affect Portis's substantial rights. See TEX. R. APP. P. 44.2(b); see also Rich
    Portis v. State                                                                           Page 5
    v. State, 
    160 S.W.3d 575
    , 577 (Tex. Crim. App. 2005). A substantial right is affected when
    the error has a substantial and injurious effect or influence in determining the jury's
    verdict. 
    Rich, 160 S.W.3d at 577
    ; see Johnson v. State, 
    43 S.W.3d 1
    , 4 (Tex. Crim. App. 2001).
    In conducting the harm analysis, we consider everything in the record, including any
    testimony or physical evidence admitted for the jury's consideration, the nature of the
    evidence supporting the verdict, the character of the alleged error and how it might be
    considered in connection with other evidence in the case, the jury instructions, the State's
    theory and any defensive theories, closing arguments, voir dire, and whether the State
    emphasized the error. 
    Rich, 160 S.W.3d at 577
    .
    Our review of the record shows that there was other evidence of Portis's having
    been to prison previously, specifically Portis's conversation with Jackson regarding his
    prison tattoos. Portis had been identified by Jackson by describing his clothing and shoes
    that matched what one of the robbers had worn in the robbery, by his tattoos, and by his
    hair that was cut in a Mohawk. Cell phone records connected Portis with his girlfriend
    and the accomplices in the crime at relevant times and locations. One of the accomplices
    testified that Portis participated in the robbery with him. The trial court properly
    instructed the jury regarding the limited purpose of the admission of the extraneous
    offenses and bad acts. The State did reference the statement briefly in closing. We do not
    believe that the statement that Portis would "die in his tracks before going back to prison"
    had a substantial and injurious effect or influence in determining the jury's verdict. We
    Portis v. State                                                                         Page 6
    overrule issue three.
    NAME-CALLING
    In his fourth issue, Portis complains that the trial court abused its discretion by
    allowing the detective that questioned Portis to testify as to a comment yelled by Portis
    to the detective the same day as the statement in issue three. After Portis terminated the
    interview with the detective, he eventually left in a vehicle. The detective then observed
    that a couple of vehicles, including the one in which Portis had left, circled very slowly
    several times around the mobile home park where Portis's girlfriend resided. Eventually,
    Portis rolled down the window of one of the vehicles and yelled "Fuck you, pig" to the
    detective. Portis objected pursuant to rules 401 and 403 of the Rules of Evidence.
    Even if we assume without deciding that the admission of this statement was
    erroneous, we do not find that Portis was harmed by its admission. Under Rule 44.2(b),
    we disregard all non-constitutional errors that do not affect Portis's substantial rights. See
    TEX. R. APP. P. 44.2(b); see also Rich v. State, 
    160 S.W.3d 575
    , 577 (Tex. Crim. App. 2005). In
    making this determination, our analysis is the same as discussed above in Portis's third
    issue with the exception that the State did not reference this statement in its closing
    argument. We do not find that this statement had a substantial and injurious effect or
    influence in determining the jury's verdict. We overrule issue four.
    PUNISHMENT REBUTTAL STATEMENT
    In his fifth issue, Portis complains that the trial court erred by allowing the State
    Portis v. State                                                                          Page 7
    to present testimony regarding a statement Portis made to a sheriff's deputy who had
    moved Portis to a holding cell for Portis to be taken to court early in the morning on the
    day of the sentencing phase of the trial. This was prior to the State resting its case in
    punishment. The deputy testified that Portis told him that "after he got sentenced he was
    going to act a fool and we were going to have to tase him." Portis argues that this evidence
    was not proper rebuttal evidence because it was available to the State prior to resting and
    did not rebut a material fact presented in Portis's case during the punishment phase. The
    State argued that while it did know of the evidence prior to resting its case-in-chief on
    punishment, the State had been unable to contact the deputy to whom Portis made the
    comment to get him to testify earlier because he had gotten off duty at 7:00 that morning.
    Portis presented two witnesses in the punishment phase, a friend and his mother.
    Both testified that Portis was at times a good person and a good father to his then 10-
    year-old daughter. Portis's mother testified extensively about Portis's difficult childhood
    and criminal history throughout his life.
    Even if we assume without deciding that the testimony was erroneously admitted
    as rebuttal evidence, we do not find that Portis was harmed by the admission of the
    evidence. As described above in issues three and four, the erroneous admission of
    evidence is generally non-constitutional error governed by Rule 44.2(b). TEX. R. APP. P.
    44.2(b).    Therefore, we "need only determine whether or not the error affected a
    substantial right of the defendant." Morales v. State, 
    32 S.W.3d 862
    , 867 (Tex. Crim. App.
    Portis v. State                                                                       Page 8
    2000). Substantial rights are not affected if, based on the record as a whole, we have a fair
    assurance that the error did not influence the jury or had but a slight effect. 
    Motilla, 78 S.W.3d at 355
    . The record shows that Portis was found guilty of aggravated robbery
    based on evidence that a semi-automatic pistol was pointed at a bank teller while another
    teller put money into a bag during the aggravated robbery, and during the punishment
    phase the evidence also showed that Portis was believed to have committed a second
    aggravated robbery at a bank in a similar fashion two weeks after the robbery that was
    the subject of this prosecution. The evidence also showed that Portis had an extensive
    violent criminal history that started when Portis was a juvenile and included several
    incarcerations. While Portis was in jail awaiting trial on these offenses, Portis had been
    inciting riots, swearing at and threatening guards, and otherwise causing problems on
    many occasions. Based on his tattoos, evidence was presented that it was likely that
    Portis is a member of a gang. After reviewing the record as a whole, we conclude the
    error in the allowance of the testimony regarding Portis's threats to act out at sentencing
    in rebuttal, if any, did not influence the jury or had but a slight effect. See 
    Motilla, 78 S.W.3d at 355
    . We overrule issue five.
    CONCLUSION
    Having found no reversible error, we affirm the judgments of the trial court.
    TOM GRAY
    Chief Justice
    Portis v. State                                                                        Page 9
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed December 28, 2016
    Do not publish
    [CRPM]
    Portis v. State                                 Page 10