Shane Roy Baker v. The State of Texas--Appeal from 216th Judicial District Court of Kerr County

MEMORANDUM OPINION

No. 04-02-00232-CR

Shane Roy BAKER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 216th Judicial District Court, Kerr County, Texas

Trial Court No. A01-196

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 5, 2003

AFFIRMED

A jury found defendant, Shane Roy Baker, guilty of possession of a controlled substance, with intent to deliver. In four issues on appeal, defendant complains that the trial court erred in admitting hearsay testimony regarding a conversation between him and a confidential informant, by admitting testimony revealing a previous extraneous offense, by allowing the State to cross-examine him regarding his written statement, and by denying his motion for instructed verdict. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. 47.4. We affirm.

At approximately 10:30 a.m. on March 28, 2001, a confidential informant ("CI") purchased drugs from the defendant in exchange for $75 in currency that the police had previously photocopied. The conversation between the CI and defendant was overheard, via a "body bug," by narcotics investigator, James Hicks. At approximately 3:00 p.m. on that same day, police officers executed a search warrant on defendant's car, from which they confiscated two baggies of cocaine, one baggie of marijuana, and assorted baggies used for packaging narcotics for sale; defendant's wallet, from which they confiscated the same $75, plus an additional $555; and defendant's house, from which they confiscated gram scales, twenty-nine grams of cocaine, marijuana, and assorted packaging baggies.

INVITED TESTIMONY

In his first issue, defendant asserts the trial court erred in admitting into evidence Hicks's testimony about the conversation between himself and the CI.

On direct examination, Hicks said he recognized defendant's voice in the conversation with the CI, but he did not divulge the contents of the conversation. On cross-examination, Hicks admitted it was possible that defendant, who is a waiter, had obtained the $75 because he made change for the CI, also a waiter. Prior to re-direct and in accordance with a previously filed motion in limine, the prosecutor asked for a ruling on the admissibility of the contents of the conversation, arguing that the defense had "opened the door" to what was said between the CI and defendant based on defense counsel's hypothesis that defendant and the CI exchanged money to make change for tips or for customers. Over defense counsel's hearsay objection, the court allowed Hicks to testify that he overheard the following: the CI referred to the individual he was meeting with as "Shane," the CI asked "Shane" if the weight was correct on the narcotics the CI had purchased, and "Shane" responded "yeah, that's right."

The State is arguably correct that defendant opened the door to rebuttal testimony pertaining to how he came into possession of the $75. But, such a view has only one eye. "Opening the door" or "inviting" testimony that pertains to otherwise inadmissible subject matter does not mean the testimony is necessarily "invited" into evidence in any form, including hearsay. Kipp v. State, 876 S.W.2d 330, 337 (Tex. Crim. App. 1994) (plurality opinion). Therefore, we consider whether the evidence is admissible on any grounds. Id. Whether otherwise inadmissible hearsay evidence comes in under one of the exceptions or exclusions to the hearsay rule is a question for the trial court to resolve and is reviewable under an abuse of discretion standard. McNair v. State, 75 S.W.3d 69, 71 (Tex. App.--San Antonio 2002, no pet.).

Because Hicks testified to a statement made by the defendant ("Yeah, that's right."), defendant's statement was not inadmissible. See Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999)(criminal defendant's own statements, when being offered against him, are not hearsay); Tex. R. Evid. 801(e)(2). The CI's statement about the weight of the narcotics was not offered for the truth of the matter asserted, but was offered to show the context in which defendant made his statement, and therefore was not hearsay. See Kimball v. State, 24 S.W.3d 555, 564 (Tex. App.--Waco 2000, no pet.) (officer's testimony offered as background evidence or to show the context in which defendant made his "nursing a beer" statement was not hearsay); Tex. R. Evid. 801(d). Therefore, the trial court did not abuse its discretion in allowing this testimony into evidence.

Defendant also contends that the probative value of Hicks's testimony was strongly outweighed by its prejudicial effect. However, defendant failed to make this objection at trial; thus, it was waived. Castiblanco-Gomez v. State, 882 S.W.2d 564, 568 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

EXTRANEOUS OFFENSE

In his second issue, defendant asserts the trial court erred in admitting into evidence the testimony of Sue Pickett, a Narcotics Task Force investigator, about her purchase of $200 worth of cocaine from defendant on January 24, 2001.

At trial, defendant objected to Pickett's testimony on the basis of unfair surprise because he had not been given notice of this prior transaction. At a hearing outside the jury's presence, the prosecutor stated she was not aware of the extraneous offense until that morning, at which time she immediately informed defense counsel.

Texas Rule of Evidence 404(b) permits admission of extraneous offenses for certain purposes provided the State gives reasonable notice in advance after a timely request by the defendant. Tex. R. Evid. 404(b). The purpose of the rule is to apprise the defendant of extraneous offenses the State intends to introduce at trial. Webb v. State, 36 S.W.3d 164, 176 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). Defendant contends that, although he did not file a written Rule 404(b) motion, his motion in limine was considered at a pretrial hearing, at which time the State should have revealed the existence of the January 24th offense.

Defendant's motion in limine did not request information regarding extraneous offenses, and did not reference any specific extraneous offenses. At the pretrial hearing on the motion in limine, the State indicated it intended to prove up the March 28th meeting with the CI to impeach the defendant if he testified. No other extraneous offenses were discussed. However, at the time of this hearing, the prosecutor was unaware of the January 24th offense, and therefore, could not have brought it to the defendant's attention at this time.

Even assuming the State was aware of the January 24th drug transaction earlier than the date it sought to introduce the evidence, on appeal, defendant has not established how he was prejudiced by the State's failure to notify him earlier of its intention to use the evidence. Defendant did not request a continuance, and he does not indicate how the presentation of his case was prejudiced by the failure to receive more timely notice. A defendant must establish specific prejudice such as unfair surprise, the inability to effectively cross-examine State's witnesses, or that crucial testimony would have been given by a potential witness. Cf. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (no prejudice shown from denial of motion for continuance). Absent a showing of prejudice to the presentation of defendant's case, we cannot conclude the trial court abused its discretion.

CROSS-EXAMINATION OF DEFENDANT

In his third issue, defendant asserts the trial court should have suppressed his written statement and not permitted the State to use it to impeach him at trial.

Outside the jury's presence, defendant testified that although he was initially read his Miranda rights, each time he thereafter asked for an attorney, he was told he was not entitled to one. As a result, he gave a written statement conceding his knowledge of the drugs found in his car and home. The trial court did not rule on whether defendant's statement should be suppressed, but granted his motion in limine. At trial, defendant testified he did not tell Hicks there was cocaine and marijuana in his car or house. On re-direct and without objection, the prosecutor read portions of defendant's written statement, in which he told Hicks there were drugs in the car and his house, and the prosecutor questioned defendant about the inconsistencies between his written statement and his testimony at trial. Later, over objection, the statement itself was admitted into evidence. We hold that defendant has waived his objections on appeal because the content of the statement was read into evidence without objection. See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).

MOTION FOR INSTRUCTED VERDICT

In his fourth issue, defendant asserts the trial court erred in denying his motion for instructed verdict because the State failed, as a matter of law, to establish the elements of its case beyond a reasonable doubt. Defendant contends the State failed to prove actual care, custody, control, or management of the drugs found at the house, or that he knew the substance was contraband.

A challenge to the denial of a motion for directed verdict is essentially a challenge to the legal sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). In determining the merits of a legal insufficiency claim, we review the evidence in the light most favorable to the judgment to determine if any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). If the evidence is sufficient to sustain the conviction, then the trial judge did not err in overruling defendant's motion. Madden, 799 S.W.2d at 686. After considering defendant's arguments and having considered the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Dewberry, 4 S.W.3d at 740. Thus, the court did not err in denying defendant's motion for a directed verdict.

CONCLUSION

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH