Webb, Tracy Brian v. State ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TRACY BRIAN WEBB,                                       )

                                                                              )     No.  08-02-00142-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     204th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# F-0175742-PQ)

                                                                              )

O P I N I O N

Appellant, Tracy Brian Webb, appeals his conviction for the state-jail offense of unauthorized use of a motor vehicle and the attendant sentence of one year confinement.  He raises a single issue on appeal, arguing the trial court erred in admitting certain testimony at trial.  We will affirm.

BACKGROUND

On November 20, 2001, Appellant was indicted for unauthorized use of a motor vehicle in violation of Section 31.07 of the Texas Penal Code.^[1]  On February 18, 2002, a jury trial was held to consider this charge and two others.^[2]  During trial, the State called six witnesses and admitted fourteen exhibits.

One of the witnesses called by the State was Officer D.M. Morrow of the Garland Police Department.  He testified that he was on patrol near the Garland Inn and Suites motel on October 5, 2001.  After investigating unrelated suspicious activity at the motel, he encountered a man later identified as Ricky White.  While questioning Mr. White, Officer Morrow observed drug paraphernalia and other contraband inside the room occupied by Mr. White and an unidentified woman.^[3]  The officer also noticed a number of cellular phones and other items that he suspected might have been stolen.

While Officer Morrow questioned Mr. White, Officer McClure arrived at the motel to serve as backup.  The woman was questioned by Officer Morrow inside the motel room and Mr. White was waiting outside the room with Officer McClure.  Shortly after Officer Morrow handcuffed the woman, Ricky White bolted away from Officer McClure and began running down the stairs and into the parking lot with the officer in pursuit.  According to the testimony of Officers Morrow and Timothy McClure, Mr. White ran directly to a blue Chevrolet Corsica that was backed into the parking space directly below the room.  Mr. White pulled on the door handle and yelled, AGo.@ When the car door failed to open, Ricky White continued to run across the parking lot and onto a nearby road. As he ran, he continued to yell at the person in the Corisica, who was later identified as Appellant. Appellant then drove across the lot, picked up Mr. White on a nearby road, and sped away.  Officer McClure pursued the Corsica in his patrol car with sirens and emergency lights activated.  Appellant refused to pull over and led the officer on a high-speed chase for several miles, sometimes driving on the wrong side of the road. While this occurred, additional police officers also became involved in the chase.  All of the police cars engaged sirens and lights.  At one point, Appellant drove directly towards a police vehicle, forcing it off the highway to avoid collision.  Ultimately the Corsica struck an embankment with such force that the car was severely damaged and forced to stop.  Appellant and Ricky White then jumped out of the car and began fleeing on foot.  Both men were apprehended by the law enforcement officers.  The entire automobile chase and portions of the final foot chase and arrest were recorded on the video camera in Officer McClure=s police car.  This videotape was admitted into evidence as State=s Exhibit 3 and shown to the jury.

The police investigation later revealed that the Corsica and a number of items inside of it had been stolen.  During trial, this was testified to by Officer Morrow. Fannie Muckleroy and Don Livesay also gave testimony about the stolen vehicle. These witnesses testified that the Chevy Corsica was owned by Rent-A-Wreck rental cars.  It had been rented to Ms. Muckleroy in August 2001.  On September 24, 2001, the automobile was stolen from a gas station.  Ms. Muckleroy told the jury that while she was attempting to fill the car with gasoline, a man looking like Appellant approached and spoke to her.  She then went inside the station to pay.  While she was inside, the car was stolen.

At the conclusion of the State=s case, defense counsel declined to call any witnesses. Closing arguments by both sides focused on other issues in the trial.^[4]  Ultimately, Appellant was found guilty of both evading arrest and unauthorized use a vehicle.^[5]

ISSUE ON APPEAL 

Prior to trial, Appellant filed a motion in limine requesting the State be barred from calling witnesses to testify about what occurred at the motel prior to the time Ricky White fled the police and left the scene with Appellant.  In particular, Appellant did not want witnesses to testify to any drug paraphernalia or stolen property seen in the motel room or the reasons why Mr. White and his female companion were arrested.  Appellant argued any such evidence violated Rules 403 and 404 of the Texas Rules of Evidence.  The trial court denied the motion in limine and allowed Appellant a running objection to any such evidence.  During trial, Appellant=s counsel continued to lodge timely objections to testimony about what the officers observed at the scene and why they were attempting to arrest Mr. White before he fled with the aid of Appellant.  Appellant now argues the trial court erred in denying the motion in limine and admitting testimony related to the contraband observed in the motel room.  The State contends the testimony was same transaction contextual evidence and therefore admissible as an exception to Rule 404(b).

Standard of Review

In determining whether a trial court erred in admitting evidence, an appellate court applies an abuse of discretion standard of review. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996).  A trial court is found to have abused its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991)(Opin. on reh=g); Foster v. State, 909 S.W.2d 86, 88 (Tex.App.--Houston [14th Dist.] 1995, pet. ref=d). Absent such a finding, a trial court=s ruling on the admission of evidence will not be reversed.  Green, 934 S.W.2d at 101-02.

Relevancy

In reviewing the admissibility of the complained of evidence, we must first consider whether the evidence is relevant under Rule 401.  Rogers v. State, 853 S.W.2d 29, 32-3 (Tex.Crim.App. 1993).  Evidence is relevant if it has Aany 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.  Officer Morrow=s testimony about the drug paraphernalia and stolen property observed in Ricky White=s motel room is relevant to the explanation of his decision to arrest the occupants of the room.  Arguably, it was the officer=s decision to arrest the occupants that led Ricky White to flee from the motel and to Appellant=s vehicle.  Evidence of illegal drug use and the presence of possible stolen items help explain why Mr. White fled from the police and in turn, what may have motivated Appellant to assist Ricky White and thereby commit the charged offense of evading arrest.  Essentially, this evidence tends to make more probable the State=s charge that Appellant intentionally fled from a law enforcement officer that he knew was trying to detain him when he picked up Mr. White and sped away from the police.  Tex.R.Evid. 401. Further, it was Appellant=s action of aiding Mr. White and evading the police that ultimately resulted in the investigation and charge of the unauthorized use of a motor vehicle.  Accordingly, we hold it was within the zone of reasonable disagreement for the trial court to find the evidence relating to the events leading up to the time Ricky White entered Appellant=s vehicle to be relevant.  Green, 934 S.W.2d at 101-02.

Same Transaction Contextual Evidence

Having found the evidence at issue to be admissible under Rule 401, we now consider whether the evidence is admissible as an exception under Rule 404(b).  Rogers, 853 S.W.2d at 33.  Texas Rule of Evidence 404(b) provides:

(b)        Other Crimes, Wrongs or Acts.  Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State=s case-in-chief such evidence other than that arising in the same transaction.

Tex.R.Evid. 404(b).  Texas courts have long recognized that evidence of other offenses connected with the primary offense, so called same transaction contextual evidence, may be admissible under Rule 404(b).  Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000); Mayes v. State, 816 S.W.2d 79, 86-7 n.4 (Tex.Crim.App. 1991); Nichols v. State, 97 Tex.Crim. 174, 260 S.W. 1050 (1924); Gillum v. State, 888 S.W.2d 281, 285-86 (Tex.App.--El Paso 1994, pet. ref=d).

Same transaction contextual evidence is a type of Abackground evidence@ related to acts, words, and conduct occurring at the time of the commission of the offense or the arrest.  See Rogers, 853 S.W.2d at 32-3.  Extraneous conduct is considered same transaction contextual evidence when the charged offense would make little or no sense without also bringing in the same transaction evidence.  Pondexter v. State, 942 S.W.2d 577, 584 (Tex.Crim.App. 1996); England v. State, 887 S.W.2d 902, 915 (Tex.Crim.App. 1994).  The conduct must be blended or connected to the act for which the defendant is being tried so that they form an indivisible criminal transaction, such that full proof of one could not be given without showing the other.  Mayes, 816 S.W.2d at 86 n.4.

Same transaction contextual evidence is admissible as an exception under Rule 404(b) where such evidence is necessary to the jury=s understanding of the charged offense.  Nelson v. State, 864 S.W.2d 496, 498 (Tex.Crim.App. 1993); Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993).  It can be said that such evidence provides the jury information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven.  Camacho, 864 S.W.2d at 532.; Gillum, 888 S.W.2d at 285-86.  The evidence is not admissible for the purpose of showing character conformity, but rather to illuminate the nature of the crime alleged.  Camacho, 864 S.W.2d at 532.  As explained by the Court of Criminal Appeals, A[t]he reason for its admissibility >is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose.=@  Rogers, 853 S.W.2d at 33.

In this case, testimony related to the observations of the officers at the motel provides information essential to the understanding of the context and circumstances of Appellant=s involvement with Mr. White.  Camacho, 864 S.W.2d at 532.  In order for the State to adequately describe the events leading to Appellant=s arrest and the investigation revealing the Corsica to be stolen, they must be allowed to fully explain how and why Ricky White entered Appellant=s vehicle.  Camacho, 864 S.W.2d at 532; Rogers, 853 S.W.2d at 33.  Part of this explanation arguably includes the fact that Mr. White was fleeing from arrest for possible illegal drug and stolen property violations.  For this reason, we find that the trial court=s decision to allow the complained of evidence to be heard by the jury is certainly within the zone of reasonable disagreement.  Montgomery, 810 S.W.2d at 391.

Rule 403 Balancing Test

Appellant argued at trial and now contends on appeal that the probative value of evidence of the contraband found in Ricky White=s motel room was substantially outweighed by its prejudicial effect on the jury.  He maintains the lower court=s rejection of this argument constitutes error.  Under Montgomery, we are to consider a number of factors in determining whether the trial court conducted an appropriate balancing test under Rule 403.  These factors include, but are not limited to the following:  (1) that the ultimate issue was not seriously contested by the opponent; (2) that the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; (3) that the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; and (4) that the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious.  Montgomery, 810 S.W.2d at 392-93.  Having reviewed the record in light of these considerations, we find nothing to suggest the trial court abused its discretion in applying a 403 balancing test.  Montgomery, 810 S.W.2d at 392-93.

Finding no abuse of discretion on the part of the trial court, Appellant=s issue on appeal is overruled.  For the reasons stated above, we affirm the trial court=s judgment.

September 19, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1] Section 31.07 of the Penal Code provides:

(a)        A person commits an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner.

(b)        An offense under this section is a state jail felony.

Tex.Pen.Code Ann. ' 31.07 (Vernon 2003).

^[2] Mr. Webb was indicted for three separate offenses that were ultimately tried together.  He was found not guilty of one charge, aggravated assault on a public servant. He was convicted and sentenced in the two remaining:  evading arrest and unauthorized use of a motor vehicle.  Because these two causes and subsequent appeals are separate, independent opinions will be issued.  The underlying facts and the issue on appeal are the same in both cases.  The companion case on appeal is cause number 08-02-00141-CR.

^[3] This woman was later identified as Ms. Butler.

^[4] Much of the trial and almost all of the closing arguments focused on the charge against Appellant for aggravated assault on a public servant.  The charges and facts related to evading arrest and unauthorized use of a vehicle were only mentioned once by the State in its closing argument.  At that time, the prosecutor made the following statements: AI don=t think there=s any dispute, ladies and gentlemen, about the evading arrest, about the unauthorized use of a motor vehicle.  Find him guilty on those.@  Appellant=s attorney did not mention these charges during closing argument at all.

^[5] As previously mentioned, Appellant was found not guilty of aggravated assault on a public servant.