Edwin Estuardo Chavarria v. State of Texas--Appeal from Criminal District Court No. 2 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Edwin Estuardo Chavarria

Appellant

Vs. Nos. 11- 01-00120-CR, 11-01-00121-CR, 11-01-00122-CR, & 11-01-00123-CR B Appeals from Dallas County

State of Texas

Appellee

Appellant pleaded guilty to four enhanced indictments which charged him with possession with intent to deliver controlled substances as follows: (1) methamphetamine in an amount of 400 grams or more (No. 11 01 00120 CR); (2) amphetamine in an amount of more than 4 grams but less than 400 grams (No. 11-01-00121-CR); (3) methamphetamine in an amount of 400 grams or more (No. 11 01 00122 CR); and (4) amphetamine in an amount of 400 grams or more (No. 11-01-00123-CR). See TEX. HEALTH & SAFETY CODE ANN. '' 481.112 & 481.113 (Vernon Pamph. Supp. 2002). After a joint trial, the jury assessed punishment of 15 years confinement in Cause No. 11 01 00120 CR; 20 years and a $10,000 fine in Cause No. 11 01 00121 CR; 35 years and a $25,000 fine in Cause No. 11 01 00122 CR; and 15 years and a $5,000 fine in Cause No. 11 01 00123 CR. We affirm.

Issues Presented

Appellant presents two points of error. Appellant complains in his first point that the trial court wrongfully excluded mitigating punishment evidence of appellant=s offer to cooperate with law enforcement officers in Amaking cases@ against other drug offenders. Appellant complains in his second point that the trial court wrongfully denied his constitutional right to confront and cross- examine the State=s witness, a drug enforcement agent, about the details of a confidential informant=s criminal history.

Background Facts

Drug Enforcement Administration Agent Benjamin Victor Routh used a confidential informant, Robert Perez, to initiate three drug buys from appellant. All three meetings were attended by Agent Routh, Perez, and appellant. During the first meeting, appellant delivered two one-half pound packages of methamphetamine to Agent Routh in exchange for $7,000. A week later, during the second meeting, appellant delivered nearly two pounds of amphetamine mixed with methamphetamine to Agent Routh in exchange for $13,120. Six days later, during a third meeting, appellant delivered to Agent Routh 12 pounds, 3 ounces of amphetamine mixed with methamphetamine. Appellant was arrested immediately after the third delivery.

Agent Routh testified that he used confidential informants and concerned citizens to investigate illegal drug traffic. He further testified that most of these individuals were paid or were cooperating to have the sentences in their own cases reduced. He identified Perez as his informant in appellant=s cases. Agent Routh testified that Perez had been sentenced to 48 months in the Federal Correction Institution; that he had become familiar with Perez after Perez was sentenced; and that he had not been involved in Perez=s federal case. Agent Routh testified that he offered Perez a deal in which, if Perez cooperated, Agent Routh would put in a Agood word@ with the United States Attorney. He identified aspects of Perez=s cooperation and stated that Perez was deeply connected with drug trafficking. Agent Routh further testified that, as a result of Perez=s cooperation, Perez=s 48-month sentence was reduced to 3 years probation.

Appellant=s Offer to Cooperate

In his first point, appellant contends that the trial court erred in excluding his testimony about his offer to cooperate with Agent Routh in future cases. As mitigating evidence, appellant wanted the jury to know that, after he was arrested and incarcerated awaiting trial, he offered to Amake cases@ for Agent Routh in exchange for Agent Routh putting in a good word with the prosecutor in these four cases, a deal similar to the one between Agent Routh and Perez. When appellant began testifying about a conversation he had with Agent Routh while appellant was in jail awaiting trial, the State objected. After a hearing outside the jury=s presence, the trial court sustained the State=s objection under TEX.R.EVID. 408.

A trial court=s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Cr.App.2001). An appellate court will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, supra at 615.

Although the trial court sustained the objection under Rule 408, this rule does not apply to these facts. Rule 408 concerns admissibility of compromise and offers to compromise and is limited on its face to evidence which is presented to prove Athe validity for or invalidity of [a] claim or its amount.@ Smith v. State, 898 S.W.2d 838, 843 (Tex.Cr.App.1995). Rule 408 does not apply to criminal plea negotiations. Nothing in appellant=s offer to Amake cases@ for Agent Routh during his attempted plea negotiation concerns the validity or invalidity of a claim or its amount. Rule 408 does not apply to the plea negotiation between appellant and Agent Routh.

Nevertheless, if the trial court's decision was correct on any theory of law applicable to the case, it will be sustained. Smith v. State, supra at 843; McFarland v. State, 845 S.W.2d 824, 846 n.15 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993); Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App.1990); Calloway v. State, 743 S.W.2d 645, 652 (Tex.Cr.App.1988).

Under TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a) (Vernon Supp. 2002), the State and the defendant may offer evidence during the punishment phase of a trial as to Aany matter the court deems relevant to sentencing,@ including but not limited to the prior criminal record of the defendant, his general reputation, or his character. Although the definition of Arelevant evidence@ in TEX.R.EVID. 401 is helpful in determining what evidence is relevant under Article 37.07, section 3(a), the definition is not a perfect fit in the punishment context. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Cr.App.1999). Rather, admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy. As a matter of policy, plea negotiations are not admissible for a number of reasons. Smith v. State, supra at 844. The trial court did not abuse its discretion in excluding appellant=s testimony about his attempt to plea bargain with the prosecutor through Agent Routh. Appellant=s first point is overruled.

Limited Cross-Examination of Criminal History

Appellant complains in his second point that the trial court abused its discretion by limiting his cross-examination of Agent Routh concerning the details of the criminal history of Perez. Agent Routh testified that Perez had pleaded guilty to possession with intent to distribute methamphetamine and had received a 48-month sentence in federal court. After Agent Routh told the United States Attorney about Perez=s cooperation, Perez=s sentence was reduced to 3 years probation.

During cross-examination of Agent Routh, appellant attempted to elicit details of Perez=s criminal convictions. The State objected, and the trial court conducted a hearing outside the jury=s presence. Appellant wanted to establish that Perez was a major drug dealer who possessed with intent to distribute more than 20 pounds of illegal drugs, that Perez had been sentenced to 48 months in the Federal Correction Institute, and that his sentence had been reduced after cooperating with Agent Routh. Appellant wanted to use that information as a mitigating factor in his sentencing because he had sold a smaller quantity of drugs than Perez. The trial court allowed appellant to show that Perez received a probated sentence but excluded all evidence about the details of Perez=s previous convictions.

As stated earlier, a trial court=s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Burden v. State, supra at 615. An appellate court will not reverse a trial court=s ruling unless that ruling falls outside the Azone of reasonable disagreement.@ Article 37.07, section 3(a) allows the admission of evidence that the trial court finds relevant to sentencing. The trial court determined the details of Perez=s offense as not being relevant to the sentencing of appellant. We agree. The penalties imposed on Perez were based on the individualized facts of his offense. So must appellant=s sentence be based on the individualized facts of appellant=s cases. The trial court did not abuse its discretion in excluding the evidence. Appellant=s second point of error is overruled.

This Court=s Ruling

The judgments of the trial court are affirmed.

TERRY McCALL

JUSTICE

October 31, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.