Bobby Dean Hackett v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00058-CR
___________________________
BOBBY DEAN HACKETT, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 3
Tarrant County, Texas
Trial Court No. 1558981D
Before Gabriel and Kerr, JJ.; and Lee Ann Dauphinot (Senior Justice, Retired, Sitting
by Assignment).
Memorandum Opinion by Justice Dauphinot
MEMORANDUM OPINION
A jury convicted Appellant Bobby Hackett of possession of less than one gram
of methamphetamine, a state jail felony enhanced to second-degree-felony punishment.
See Tex. Health & Safety Code Ann. § 481.115(b); Tex. Penal Code Ann. §§ 12.33,
12.425(b). The trial judge assessed his punishment at 20 years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. On appeal,
Appellant brings a single issue, arguing that the trial court reversibly erred in allowing
the State to lay the predicate for an extraneous offense that later turned out to be
inadmissible. We hold that Appellant failed to preserve his complaint and affirm the
trial court’s judgment.
Brief Facts
Eric Ramos, a Fort Worth police officer, testified that on August 22, 2018, he
was in a high drug area in South Fort Worth when he observed and followed a car to
Trail Lake Drive, where he pulled the car over after discovering that it had “[e]xpired
tags.” Inside the car were two persons—Appellant, the driver, and a female passenger
whom Officer Ramos described as having sores all over her body that he associated
with chronic methamphetamine use.
After Appellant gave Officer Ramos permission to search his car, the officer
found a backpack in the backseat. Inside the backpack were a man’s work gloves, a
man’s watch, tools, tow slips from the company Appellant had worked for, and syringes,
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one of which was loaded with methamphetamine. Appellant admitted that the
backpack was his.
On the passenger side, Officer Ramos found a black pouch that contained
amphetamine, and on the passenger-side floorboard, he found a meth pipe. Officer
Ramos’s partner, Officer Cassidy Tischler, searched the female passenger and found an
open syringe in her waist band and marijuana and heroin in her bra.
Appellant does not dispute Officer Ramos’s testimony concerning the detention
and the search.
Discussion of Appellant’s Sole Issue
In a single, multifarious issue, Appellant argues that the trial court erred when it
allowed the State to lay the predicate for admitting an indictment and conviction of an
inadmissible extraneous offense because
• the trial court failed to perform a balancing test to determine whether the
evidence’s probative value was substantially outweighed by the danger of unfair
prejudice;1
• the extraneous-offense evidence was inadmissible because it did not serve as
proof of intent or knowledge beyond its tendency to prove character
conformity;2 and
1
See Tex. R. Evid. 403.
2
See Tex. R. Evid. 404(a)(1), (b)(2); Montgomery v. State, 810 S.W.2d 372, 387–88
(Tex. Crim. App. 1990) (op. on reh’g).
3
• the State did not provide notice of its intent to offer this particular extraneous-
offense evidence in response to Appellant’s request.3
The State argues that Appellant has failed to preserve his complaint for appellate
review. The State is correct.
The predicate about which Appellant complains lies in Sheriff Deputy Paul
Rojas’s (the State’s fingerprint expert’s) testimony. Before Deputy Rojas testified, the
prosecutor stated on the record and outside the jury’s presence that she wanted Deputy
Rojas’s testimony for “intent, knowledge, and absence of mistake.” The offense in
question was another conviction for possession of a controlled substance
(methamphetamine). The trial court then asked defense counsel if he was “requesting
a balancing.” Defense counsel responded,
Yeah, and just so we’re clear because I want to make sure that it’s clear to
the Court of Appeals that my objection comes under 403, which is more
prejudicial than probative, also under 404(b) that it does not meet any of
those definitions of intent, lack of mistake or knowledge. And this is just
a conformity issue of which the State is trying to get into something they
would not be allowed to do.
The trial court responded that it would instruct the jury that
any testimony before you in this case regarding the Defendant’s having
committed offenses other than the offense alleged in the indictment, you
cannot consider such testimony for any purpose unless you find and
believe beyond a reasonable doubt that the Defendant committed such
other offense. And even then, you may only consider it in determining
intent, knowledge, or absence of mistake, if any, in connection with the
offense.
3
See Tex. R. Evid. 404(b)(2).
4
The trial court summarized, “That will be the instruction I will give,” and then
concluded, “In addition, I have conducted a balancing test and I have determined that
the probative value . . . is not substantially outweighed by the prejudicial effect of such
evidence.” Thus, contrary to Appellant’s contention, the record reflects that the trial
court did perform a balancing test when overruling Appellant’s initial objections. That
portion of Appellant’s complaint has no merit.
Before the jury, Deputy Rojas then testified that he had just taken Appellant’s
fingerprints and had compared them to fingerprints already in law enforcement’s
possession from the Tarrant County jail and concluded that they were the same. When
the prosecutor asked Deputy Rojas to identify State’s Exhibit 13, he explained that it
was an indictment out of Tarrant County. The prosecutor followed up by asking
Deputy Rojas whether the exhibit contained a judgment and sentence, but before
Deputy Rojas could respond, defense counsel objected and asked to approach the
bench.
Outside the jury’s presence, defense counsel stated, “Your Honor, I believe he
was about to testify about an offense from Tarrant County, which I’m not sure,
probably the 2013. The problem, though, is the 404(b) notice that I was given, that is
not listed as an extraneous offense. Therefore, it’s not admissible for any purpose.”
The State conceded that that particular conviction did not appear on its Rule 404(b)
notice, and the trial court sustained Appellant’s objection. The trial court then asked
Appellant’s counsel, “At what point do you want me to instruct the jury on the limited
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instruction?” Counsel replied, “Well, once the State asks to enter something into
evidence, I would like it then.”
When the jury returned to the courtroom, the prosecutor announced that the
State had no further questions, and defense counsel asserted that Appellant had no
questions either. The matter ended there.
In short, after the trial court sustained Appellant’s lack-of-notice objection
outside the jury’s presence, when trial resumed, Appellant failed to request an
instruction to have the jury disregard the earlier testimony and failed to move for a
mistrial. Appellant received all the relief that he requested. By not asking for additional
relief and by not obtaining an adverse ruling, Appellant has failed to preserve his
argument that the trial court erred by allowing the predicate to be laid.4
Because the trial court granted Appellant all the relief he requested, that is, the
trial court performed the requested balancing test and sustained Appellant’s objection,
and because Appellant did not request an instruction to disregard, move for a mistrial,
or receive an adverse ruling, he has no cognizable complaint on appeal.5
We overrule Appellant’s sole issue on appeal and affirm the trial court’s
judgment.
See Tex. R. App. P. 33.1(a)(1); Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim.
4
Ohio App. 2016); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim. App. 2013).
5
See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).
6
/s/ Lee Ann Dauphinot
Lee Ann Dauphinot
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 1, 2020
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