RUSSELL FOY, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed as Modified; Opinion Filed November 4, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00321-CR
............................
RUSSELL FOY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F06-66848-NL
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OPINION
Before Chief Justice Thomas and Justices Moseley and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The trial court convicted Russell Foy of possession of cocaine with the intent to deliver in the amount of four grams or more but less than 200 grams, found one enhancement paragraph true, and assessed a fifteen-year sentence in the Institutional Division of the Texas Department of Criminal Justice. In two points of error, appellant complains (1) the trial court erred in allowing a witness to testify to his opinion of appellant's truthfulness and credibility and (2) the judgment incorrectly shows appellant entered a plea of guilty. We affirm the trial court's judgment as modified.
BACKGROUND
 
        Kenneth Francis, an undercover Dallas police officer with the narcotics division, was investigating a complaint about drug activity. In the course of his investigation, he used a confidential informant to buy drugs from a suspected drug house. These buys led to the issuing of a search warrant. In executing the warrant, the officers found crack cocaine and a small plastic bag of marijuana.
        Michael McGee, a Dallas police officer, who was not involved in the search, interviewed appellant and videotaped his interview. During McGee's testimony, he opined that his interview showed appellant participated in the sale of drugs from the searched drug house.
OPINION TESTIMONY
 
Appellant argues that the officer who observed the interview gave his opinion on whether appellant told the truth on what he was doing in the drug house. Additionally, appellant maintains the only purpose of McGee's testimony was to show appellant could not be believed-an issue only for the factfinder.
The State responds that the complained-of testimony was only an “opinion related to appellant's involvement in the offense, not directly to his credibility” and not a “comment on the truth of . . . appellant's claims.” Also, the State argues McGee's testimony described his observations “about which he had personal knowledge.”
1. The Testimony
a. Kenneth Francis
 
Francis, a Dallas police detective, testified that when a citizen complains about drug activity in his or her neighborhood, the narcotics division sets up surveillance and attempts to make “buys.” If the undercover officers are unable to buy drugs, they use a confidential informant (C.I.) who “fits” into the neighborhood. The C.I. had made his drug buys out of the north bedroom window.
Francis testified that the suspected drug house's doors and windows were barricaded and a pit bull lived in the back yard. The police had previously “run” several warrants at this same house, but the occupants had always escaped out the back door. This time, two teams went to the house to execute the search warrant-one in front and one in back.
When the police entered the residence, they found three occupants, crack cocaine, marijuana, and scales. Additionally, appellant had $1341 in cash in his pocket. The house had neither food nor the ability to prepare food and no furniture or running water-it was unlivable. In the bathroom, a bucket of water sat by the commode. Francis explained that the bucket of water enabled the occupants to flush drugs. The north bedroom window had bars that formed a cage on the outside of the window. As the police entered the suspected drug house, they saw appellant coming out of the north bedroom.
The police took the three occupants downtown for interviewing. Sometimes, during a drug raid, the police find people in a suspected drug house who have not been selling drugs; they are “just there.” The police use interviews to establish whether people found when executing warrants are dealing drugs or “just there.” Francis always used Detectives McGee and Shepherd to do his interviews because they had been trained in interview techniques. Their interviews excluded one of the three men found in the drug house. Additionally, while interviewing the other two occupants, both confirmed that the third man was “just over there.” After reviewing the videotapes, Francis opined that appellant, however, “was there for the purpose of selling narcotics, not for possessing them.”
Appellant objected to Francis giving his opinion of appellant's interview because he was not qualified as an expert. The trial court overruled appellant's objection. On cross examination, Francis explained that his affidavit relied on a C.I.'s twice buying drugs from the north side window. When making a buy, the buyer can only see a hand come through the window. At each of these buys. the police had the suspected drug house and the C.I. under audio and video surveillance.
b. Michael McGee
 
McGee, a Dallas police narcotic's detective, testified he and Detective Shepherd conducted the interview of appellant and videotaped that interview. Although appellant had “no objection” to the videotape being admitted into evidence, the trial court conditionally admitted the videotape “subject to . . .the ongoing motion to suppress.”   See Footnote 2 
McGee testified to his special training and experience in neurolinguistic response. Although the State asked McGee if that training taught him what to look for to determine if someone is telling the truth, McGee responded that training taught him how to assess eye movement and body language as a baseline to “narrow” down common sense. Next, the State questioned McGee on his opinion on appellant's involvement or “whether he was just there.” Appellant objected to McGee giving his opinion, stating if it was just common sense, the trial court had common sense. The trial court overruled appellant's objection and stated it would not base its decision “on what the officer said.” The trial court then stated, “I can see the tape.” The State offered appellant's and Shepherd's videotapes, appellant had no objection, and the trial court admitted both videotapes.
Kurt Carroll
 
Carroll, a Dallas police narcotics officer who participated in the execution of the search warrant at the suspected drug house, testified in response to a hypothetical question containing the facts of this case-a fortified house, no running water, sparse furniture, controlled buys from an arm coming through a caged window, appellant seen coming out of that room, and plastic bags containing crack cocaine-that appellant was “involved in selling narcotics.” And, he would file a possession with intent to deliver charge.
On cross examination, appellant posed a hypothetical reciting the facts of this case and asked if Carroll could say beyond a reasonable doubt that a person was in “possession of narcotics.” Carroll responded if that person could not see the drugs, never knew the drugs were there, and you believed him, Carroll could not say beyond a reasonable doubt that the person was in possession of narcotics. But, even if the person was in another room, he could potentially be in possession of narcotics.
d. Appellant
 
Appellant testified that he had only been in the house for thirty minutes when the police came. He had gone to the house to sell marijuana to Ron and Patrick. The police never questioned him at the house, they only questioned him downtown.
Appellant explained his possession of the large sum of money he had on him as his sister's money and money he made selling marijuana to the two guys in the drug house. His sister had given him a thousand dollars to buy a “cash car” and he sold the marijuana for twenty dollars.
Appellant maintained he never said anything about selling cocaine. He admitted that he had sold marijuana. Appellant denied that anyone had come to the window while he was at the house.
On cross examination, the State questioned appellant about his statement on the videotape that he had never been at the house when drugs were being sold. Appellant insisted that he had said he had never been at the drug house when the police came. The State then questioned why appellant would walk around for two days with a thousand dollars in his pocket looking for someone who would sell him a car. Next, the State questioned appellant why he told police during his interview that he might have touched the plate, but in court, told his attorney that he did not even know where the plate was in the house. Appellant explained that his prints could be on the plate because earlier he had “snorted cocaine” from a plate in that house.
1. Standard of Review
 
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). We reverse only if that decision was clearly wrong and outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We uphold a trial court's ruling if it is correct on any theory the evidence supports. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We do so even if the trial judge gives the wrong reason for its decision. See Osbourn, 92 S.W.3d at 538 (citing Salas v. State, 629 S.W.2d 796, 799 (Tex. Crim. App. 1981)).
2. Applicable Law
 
It is generally improper for a witness to give his opinion to the truthfulness of another witness. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Because such testimony decides a issue that is only for the factfinder, it is inadmissible. Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). The rules require scientific, technical, or other specialized knowledge which assists the factfinder to understand the evidence or determine a fact in issue and a witness qualified by knowledge, skill, experience, training, or education to give his expert opinion. Tex. R. Evid. 702. The rules limit a lay witness's opinion testimony to opinions or inferences that have as its basis a witness's perception-a witness's interpretation of information acquired through his or her own sense or experiences at the time of the event. See Osbourn, 92 S.W.3d at 535 (citing Tex. R. Evid. 701). A police officer can testify about opinions using his personal training and first- hand experience without being qualified as an expert under Rule 702. Hollis v. State, 219 S.W.3d 446, 467 (Tex. App.-Austin 2007, no pet.) Training and experience does not automatically make a witness an expert. See Osbourn, 92 S.W.3d at 539. A police officer can testify as both an expert and a lay witness. Franks v. State, 90 S.W.3d 771, 804 (Tex. App.-Fort Worth 2002, no pet.)(citing Thomas v. State, 916 S.W.2d 578, 580-81(Tex. App.-San Antonio 1996, no pet.); Austin v. State, 794 S.W.2d 408, 411 (Tex. App.-Austin 1990, pet. ref'd)).
When an appellant allows evidence to be introduced from a source without objection, he forfeits any subsequent complaint of the same evidence from another source. See Reyes v. State, 84 S.W.2d 633, 638 (Tex. Crim. App. 2002). Other evidence of the same opinion on the same facts renders harmless error in admitting the complained-of evidence under a point of error. Long v. State, 821 S.W.2d 216, 217 (Tex. App.-Houston [14th Dist.] 1991, no pet.)
4. Application of Law to the Facts
 
Officers Francis, McGee, and Carroll opined that appellant's purpose in the drug house was to sell drugs. Appellant objected to Francis's and McGee's giving their opinions and to the trial court's overruling and admitting their testimony. Appellant did not object to Carroll's opining, in response to a hypothetical question reciting the facts of this case, that he had no doubt that appellant was involved in selling drugs at the suspected drug house.
On appeal, appellant only complains of the trial court admitting McGee's opinion over his objections. Assuming without deciding, that the trial erred in admitting McGee's opinion, that complained-of evidence is cumulative of both Carroll's and Francis's testimony and appellant does not complain of their testimony on appeal. Appellant suffered no harm. We overrule appellant's first point of error.
We agree the judgment shows appellant entered a plea of guilty and the record shows appellant pleaded not guilty. We modify the judgment to reflect that appellant entered a plea of not guilty. We affirm the trial court's judgment as modified.
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 At the conclusion of testimony, the trial court overruled appellant's motion to suppress.