William Lewis Swaggerty, Jr. v. The State of Texas--Appeal from Criminal District Court of Jefferson County

MEMORANDUM OPINION
No. 04-03-00526-CR
William Lewis SWAGGERTY, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the Criminal Judicial District Court, Jefferson County, Texas
Trial Court No. 86508
Honorable Larry Gist, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 3, 2004

AFFIRMED

William Swaggerty, Jr. was convicted of possession of marijuana and sentenced to fifteen years imprisonment. On appeal, Swaggerty raises four points of error asserting the trial court erred in denying each of the following: (1) Swaggerty's motion in limine regarding the testimony of a special agent because such testimony was inadmissible character evidence, (2) Swaggerty's motion in limine regarding the admission of Swaggerty's prior criminal history, (3) Swaggerty's motion for an instructed verdict as the testimony of the accomplice witnesses was not sufficiently corroborated by independent evidence; and (4) Swaggerty's objections to the pre-sentence investigation report. We affirm the trial court's judgment.

Background

Swaggerty was stopped by Sergeant Greg Fountain for a seat belt violation outside of Houston. At the same time, the police stopped another nearby vehicle driven by Jason Horner for an unsafe lane change. While Sergeant Fountain checked Swaggerty's Tennessee driver's license, another officer, Deputy Viator, ran a drug dog around Swaggerty's car, and the dog alerted on the car. The officers then searched Swaggerty's car, finding a two-way radio on the front seat of Swaggerty's car, but nothing else.

After releasing Swaggerty, the officers proceeded to Horner's vehicle. Horner identified Swaggerty as a "buddy of mine." While Sergeant Fountain checked Horner's Tennessee driver's license, Deputy Viator ran the drug dog around Horner's car, and the dog alerted to the trunk. When the officers searched the trunk, they discovered a large amount of marijuana. Sergeant Fountain also found a two-way radio in the front seat. Sergeant Fountain noted that the radios in the cars driven by both Swaggerty and Horner were tuned to the same channel. Sergeant Fountain then notified dispatch to stop Swaggerty's vehicle. Subsequently, the officers placed Swaggerty under arrest.

During Swaggerty's trial, both Horner and Josh Vandergriff testified that Vandergriff arranged a trip from Tennessee to Houston to purchase marijuana and that Swaggerty funded the trip. Vandergriff testified that many cell phone conversations occurred between Swaggerty and Vandergriff before and during the trip to Houston. Vandergriff arranged for Horner to drive the marijuana back to Tennessee, and he obtained hand-held radios to provide communication between his vehicle and the cars driven by Horner and Swaggerty. Vandergriff stated that he arranged for all three men to stay in a hotel in Houston and to rent a third car for Horner to drive on the return to Tennessee. Upon arriving in Houston, Swaggerty and Horner remained in the hotel while Vandergriff went to purchase the marijuana from his source.

Vandergriff further testified that when the three men left the hotel the next day, each car had a two-way radio to be used to warn each other if any of the men observed any danger of interception by the police. Vandergriff drove in the front, Horner drove the second car containing the marijuana, and Swaggerty drove the third car. When the police stopped Swaggerty and Horner, Vandergriff continued to travel to Tennessee.

Later in the trial, the State re-called Vandergriff as a witness. Vandergriff testified that Swaggerty paid for a rental car, the hotel, and gas money for the trip, but Swaggerty did not pay for the marijuana. Vandergriff also testified that Swaggerty was to receive an undetermined amount of the marijuana, estimated to be "20 to 30" pounds.

Jason Horner was also called as a witness and testified consistently with Vandergriff that he had been recruited by Vandergriff to transport marijuana from Houston to Tennessee in the vehicle between those driven by Vandergriff and Swaggerty. Horner also identified the receipts for the rental cars used in the trip. Horner stated that he believed Swaggerty was never in physical possession of or saw the marijuana that was transported.

Special Agent Fisher was an FBI agent who had been involved in an extensive investigation of certain individuals in Tennessee for alleged drug dealing. One of the individuals under investigation was Vandergriff. Agent Fisher had access to Vandergriff's cell phone records and testified that there were approximately eighty-one calls from Vandergriff to Swaggerty up to the day of the offense.

Sergeant Fountain identified Swaggerty's cell phone and charger removed from his car at the time of his arrest. Fountain also identified the electronic display on Swaggerty's cell phone, which showed that a call was made from Swaggerty's phone to Vandergriff on the day of the arrest immediately after the officers released Swaggerty from his first detention. Finally, Sergeant Fountain testified that he confirmed that Vandergriff had rented two rooms as Horner described.

The jury found Swaggerty guilty of possession of marijuana, and the trial judge assessed the punishment at fifteen years imprisonment. During the punishment phase, the judge reviewed evidence from a pre-sentence investigation report (PSI) submitted by the Pre-sentence Investigation Unit and heard testimony from Swaggerty.

Motion in Limine

Swaggerty contends that the trial court erred when it denied his motion in limine to exclude the testimony of Special Agent Fisher because it was inadmissible character evidence prohibited by Rule 404 of the Texas Rules of Evidence. It is well established that a ruling on a motion in limine is insufficient to preserve error for appellate review. Brumfield v. State, 18 S.W.3d 921, 923 (Tex. App.-Beaumont 2000, pet. ref'd) (citing McDuff v. State, 939 S.W.2d 607, 618 (Tex. Crim. App. 1997) (en banc)); see also Hatchett v. State, 930 S.W.2d 844, 849 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Rule 33.1 of the Texas Rules of Appellate Procedure requires that a party make a timely, specific objection when the subject is raised at trial in order to preserve a complaint for appeal. Tex. R. App. P. 33.1(a).

In this case, Swaggerty objected to the admission of Special Agent Fisher's testimony during the pre-trial motion in limine, and the trial judge overruled his objection. For error to be preserved, however, regarding "the subject matter of a motion in limine, it is absolutely necessary that an objection be made at the time when the subject is raised during trial." Hatchett, 930 S.W.2d at 849. The record indicates that Swaggerty made no objection when the State called Special Agent Fisher to testify nor did Swaggerty object to any aspect of Fisher's testimony. Thus, Swaggerty did not preserve this complaint for appeal.

Impeachment

Swaggerty contends that the trial court erred in denying his motion in limine regarding the admission of his prior criminal history. As previously stated, rulings on motions in limine are insufficient to preserve error on appeal. Brumfield, 18 S.W.3d at 923. Nonetheless, the trial judge, after Swaggerty objected during trial, ruled that the evidence concerning Swaggerty's criminal history was admissible under Rule 609. Tex. R. Evid. 609. Swaggerty does not argue in his brief that the judge's ruling during trial was erroneous, only that the denial of the motion in limine was erroneous. Assuming that the issue has been properly presented for our review, we will analyze the propriety of the trial court's decision to admit the evidence of Swaggerty's criminal history.

The standard of review for a trial court's admission of evidence is abuse of discretion, and wide discretion is afforded to the trial judge. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992) (en banc). The trial court's decision should be reversed on appeal only if there is a showing of a clear abuse of discretion. Theus, 845 S.W.2d at 881; Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.-Texarkana 1999, no pet.).

Generally, a defendant's past crimes may not be used as evidence in an unrelated case because the accused is not to be tried for some collateral crime. Tex. R. Evid. 404(b). However, when a defendant testifies, he may be impeached in the same manner as any other witness. Hammet v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986) (en banc). A two-prong test is applied to determine whether evidence of a conviction may be used to impeach a witness: first, the prior conviction must be either a felony or a crime involving moral turpitude; second, the court must determine that the probative value of the evidence outweighs its prejudicial effect. See Tex. R. Evid. 609; Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). In considering whether the trial court properly ruled, "the appellate court may presume that the trial judge conducted the balancing test, which need not be shown in the record." Bryant, 997 S.W.2d at 676; Stern v. State, 922 S.W.2d 282, 287 (Tex. App.-Fort Worth 1996, pet. ref'd).

In this case, the prior conviction used to impeach Swaggerty was his felony conviction of possession and distribution of cocaine. Since the offense was a felony, the first prong of the test was satisfied. Turning to the second prong of the test, the Texas Court of Criminal Appeals has suggested the following five factors to consider in weighing the probative value of evidence against its prejudicial effect: (1) the prior conviction's impeachment value, (2) its temporal proximity to the crime on trial, (3) the similarity between the prior offenses and the present offense, (4) the importance of the defendant's testimony; and, (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880. These factors are not exclusive but do provide assistance in deciding whether evidence of a prior conviction is admissible for impeachment purposes. Id. The proponent seeking to introduce evidence of past convictions must show that the probative value of the conviction outweighs its prejudicial effect. Id.

Applying the first factor, we note that the probative value of crimes that involve deception is greater for purposes of impeachment than those that involve violence. Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Cocaine possession does not involve the element of deception. See Dale v. State, 90 S.W.3d 826, 830 (Tex. App.-San Antonio 2002, pet. ref'd). Accordingly, the first Theus factor weighs against the admissibility of the prior conviction.

In examining the temporal proximity of Swaggerty's cocaine conviction to the offense for which he was being tried, the second Theus factor favors admission if the past crime was recent and Swaggerty has demonstrated a propensity for breaking the law. Theus, 845 S.W.2d at 881. Rule 609(b) states that a conviction is of sufficient proximity for impeachment purposes if less than ten years have elapsed since the date of the prior conviction or from the date of the witness's release - whichever is the later date. Tex. R. Evid. 609(b). Swaggerty was convicted of possession and distribution of cocaine on October 17, 1996, fined, and sentenced to eight years probation, which was set to expire in 2004. Evidence of Swaggerty's prior conviction was offered by the State in February of 2003. The ten year time limit had not elapsed. Therefore, the second Theus factor favors admission of Swaggerty's prior conviction.

The third Theus factor is the similarity of the crime on trial and the crime used for impeachment. Such a similarity militates against admission of the prior crime because it suggests the possibility that the jury would convict on the perception of a pattern of past conduct rather than on the facts of the charged offense. Theus, 845 S.W.2d at 881. This factor favors exclusion in this case because the conviction was for possession and distribution of cocaine which is comparable to possession of marijuana - the charged offense. However, instructing the jury to consider the prior conviction only for impeachment purposes, and not as evidence of guilt, is significant in weighing the third factor because this court should presume that the jury will follow the instruction. Gamez v. State, 737 S.W.2d 315, 324 (Tex. Crim. App. 1987); Simpson, 886 S.W.2d at 452. The jury charge in this case contained a limiting instruction. This instruction minimizes, at least partly, the prejudice that might arise from the similarity of the offenses. See Ex parte Menchaca, 854 S.W.2d 128, 131-32 (Tex. Crim. App. 1993) (en banc) (indicating that the failure to request a jury instruction limiting the scope of the jury's consideration of evidence of prior convictions is very prejudicial to the defendant). Therefore, although the third Theus factor favors exclusion, the prejudice is reduced by the limiting instruction.

The fourth and fifth Theus factors are related because both depend on the type of defense and the resources available to the defendant in proving that defense. Dale, 90 S.W.3d at 831. The fourth factor concerns the importance of a defendant's testimony at trial, while the fifth factor concerns the defendant's believability as a witness. Id. When the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility and testimony increases. Theus, 845 S.W.2d at 881. As the importance of the defendant's testimony increases, so does the need to permit the State an opportunity to impeach the defendant's truthfulness. Id. In this case, only Swaggerty and the State's witnesses testified about the trip from Tennessee to Houston and the contents of the car; therefore, Swaggerty's testimony was very important. Since Swaggerty's testimony was of great importance, the State's need to impeach him was also great. Jackson v. State, 50 S.W.3d 579, 593 (Tex. App.-Fort Worth 2001, no pet.). Thus, the fourth and fifth Theus factors favor admission of Swaggerty's prior conviction.

Having reviewed each of the Theus factors, we conclude that the trial court did not abuse its discretion in admitting Swaggerty's prior conviction for impeachment purposes.

Swaggerty further argues that his prior conviction is not admissible under Rule 609(c) because his probation was complete. See Tex. R. Evid. 609(c) (prohibiting admission of evidence regarding past crimes, for which the witness has completed probation). However, evidence was admitted that showed that Swaggerty's probation does not expire until October of 2004. Thus, the trial court did not abuse its discretion when it allowed testimony regarding Swaggerty's prior conviction.

Accomplice Witness Corroboration

Next, Swaggerty argues that the trial court erred in denying his motion for an instructed verdict because the accomplice witness testimony was not sufficiently corroborated by independent evidence. A challenge to the denial of a motion for an instructed verdict is essentially a challenge to the legal sufficiency of the evidence. Jackson v. State, 50 S.W.3d 579, 597 (Tex. App.-Fort Worth 2001, pet. ref'd). In analyzing the legal sufficiency of the evidence supporting a conviction, we must view the evidence in the light most favorable to the verdict. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992) (en banc). The next step is to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The jury's verdict may not be overturned unless it is clearly irrational or unsupported by proof beyond a reasonable doubt. Jackson, 50 S.W.3d 579 at 597; see also Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) (en banc).

In this case, Swaggerty is specifically challenging the legal sufficiency of the evidence corroborating the accomplice-witness testimony. Article 38.14 states that "a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). It is not necessary that the corroborating evidence directly connect the defendant to the offense or that it is sufficient alone to establish guilt; the non-accomplice evidence need only "tend to connect" the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999) (en banc); Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App 1988) (en banc); see also Thompson v. State, 691 S.W.2d 627, 631 (Tex. Crim. App. 1985) (en banc) (declining to require a higher standard of proof for accomplice evidence in capital murder cases). If all of the non-accomplice evidence together tends to connect the defendant to the charged offense, then Article 38.14 has been satisfied. Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991) (en banc).

An accomplice, as a matter of law, is defined as a person who implicates himself in a crime. Gill v. State, 873 S.W.2d 45, 47 n.3 (Tex. Crim. App. 1994) (en banc). In this case, both Vandergriff and Horner are accomplice witnesses because each admitted to participating in the charged offense. In order for the testimony of Vandergriff and Horner to be sufficient, other evidence must exist in the record that tends to connect Swaggerty to the charged offense. The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witnesses and then examine the testimony of other witnesses to ascertain if there is evidence which tends to connect the accused with the commission of the charged offense. Reed, 744 S.W.2d at 125.

In this case, Sergeant Fountain testified that Swaggerty was in a car near Horner when Horner was arrested after the marijuana was discovered. "Evidence that a defendant was in the company of the accomplice at or near the time or place of a crime is proper corroborating evidence." Cookrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App. 1988) (en banc). Also, Sergeant Fountain's further investigation revealed that Swaggerty and Vandergriff stayed at the same hotel the night before the police arrested the men. Furthermore, Swaggerty's demeanor when stopped by Sergeant Fountain indicated guilty knowledge. Sergeant Fountain testified that Swaggerty seemed nervous and that the drug dog alerted the car. "Furtive, nervous behavior, as an indicia of guilty knowledge, may be used to corroborate accomplice testimony." Id.; Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) (en banc). Moreover, Sergeant Fountain testified that the two-way radios in the cars driven by Swaggerty and Horner were on the same channel, indicating that Swaggerty was communicating with Horner while Horner was transporting the marijuana. Special Agent Fisher's testimony about the phone records of Swaggerty and Vandergriff revealed a multitude of cell phone calls between the two men throughout the time preceding the commission of the offense. The phone records also revealed that Swaggerty called Vandergriff immediately after the police stopped him the first time. This further indicates guilty knowledge which may circumstantially corroborate the testimony of both Vandergriff and Horner. Cookrum, 758 S.W.2d at 581.

All of this evidence, when taken as a whole, tends to connect Swaggerty with the possession of the marijuana and is legally sufficient to corroborate the testimony of Horner and Vandergriff. Thus, Swaggerty's third point of error is overruled.

Pre-Sentence Investigation Report

Swaggerty argues that the trial court erred in denying his objections to the pre-sentence investigation report (PSI). Article 42.12, section 9 of the Texas Code of Criminal Procedure states that before sentencing by a judge in a felony case, the judge shall direct a supervision officer to provide a written report regarding the circumstances of the crime with which defendant is charged, any adequate restitution amount to a victim, the criminal and social background of the defendant, and any other information relating to the crime charged or the defendant that the judge requests. Tex. Code Crim. Proc. Ann. art. 42.12 9(a) (Vernon Supp. 2004). Also, the judge must allow the defendant an opportunity to comment on the information in the PSI and to introduce evidence indicating factual inaccuracies in the report. Tex. Code Crim. Proc. Ann. art. 42.12 9(e) (Vernon Supp. 2004). When interpreting this statute, we must "look solely to the literal text of the statute for its meaning, unless the text is ambiguous or application of the statute's plain language would lead to an absurd result that the legislature could not possibly have intended." Fryer v. State, 68 S.W.3d 628, 629 (Tex. Crim. App. 2002).

Initially, Swaggerty argues that Wilson v. State clearly states that admission of hearsay information violates a defendant's constitutional and statutory rights. 108 S.W.3d 328 (Tex. App.-Fort Worth 2003, pet. ref'd). To the contrary, the holding in Wilson clearly defeats Swaggerty's argument. Although the court in Wilson does express some reservation about the PSI statute, it still holds that it is not error for a trial court to consider hearsay statements contained in a PSI report. Wilson v. State, 108 S.W.3d 328, 332 (Tex. App.-Fort Worth 2003, pet. ref'd); see also DuBose v. State, 977 S.W.2d 877, 879 (Tex. App.-Beaumont, 1998, no pet.); Williams v. State, 958 S.W2d 844, 844-45 (Tex. App.-Houston [14th Dist] 1997, pet. ref'd). The Wilson court followed the precedent set by the Texas Court of Criminal Appeals when it held that the PSI statute allows a judge to consider otherwise inadmissible hearsay in a sentencing hearing. Fryer, 68 S.W.3d at 629; Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972); see also McNeese v. State, 468 S.W.2d 800, 801 (Tex. Crim. App. 1971) (finding that a PSI may contain otherwise inadmissible evidence regarding an arrest record). Accordingly, Swaggerty's constitutional arguments regarding the PSI statute are without merit.

Swaggerty's objections to the admission of the PSI report on evidentiary grounds also fail. The Texas Court of Criminal Appeals recently held that the rules of evidence generally do not apply to the contents of a PSI report. Fryer, 68 S.W.3d at 631. This ruling means that the contents of the PSI report do not have to satisfy the evidentiary requirements of sworn testimony, personal knowledge, or hearsay exceptions.

Swaggerty further contends that the fact-finder, not the PSI officer, is the sole judge of the credibility of the witnesses. The defendant, however, has the burden of proving that information contained in a PSI report is inaccurate or incorrect. Garcia v. State, 930 S.W.2d 621, 623 (Tex. App.-Tyler 1996, no pet.). In this case the judge permitted Swaggerty to present evidence during sentencing to rebut the contents of the PSI report, and Swaggerty used that opportunity to testify. The trial judge, as fact-finder, evaluated all of the evidence before him in assessing the credibility of the information contained in the PSI report. Therefore, the trial judge as the fact-finder, and not the PSI officer, assessed the credibility of the totality of the evidence presented during sentencing. Finally, Swaggerty argues that the trial judge was required to believe the evidence in the PSI report beyond a reasonable doubt in order for it to be admissible. See Tex. Code Crim. Proc. Ann. art. 37.07 3(a)(1) (Vernon Supp. 2004) (requiring that evidence regarding the criminal record may be admitted during sentencing but may only be used to the extent that the fact finder believes the evidence beyond a reasonable doubt). When the trial court assesses punishment, as in Swaggerty's case, the trial judge acts as fact-finder. Williams, 931 S.W.2d at 954. In this role, the trial judge will first determine if evidence admitted during the punishment phase of the trial is relevant, and will use the evidence in assessing punishment only if the proponent proves the evidence beyond a reasonable doubt. Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (en banc). The law does not require the judge to announce on the record that he believed the evidence beyond a reasonable doubt. Id. Although the trial judge in this case did not state for the record that he believed the information contained in the PSI report was proven beyond a reasonable doubt, Swaggerty admitted that the PSI report accurately reflected his criminal record; therefore, the record does not reflect that the trial judge considered evidence in the PSI report that was not proven beyond a reasonable doubt. Therefore, Swaggerty's final argument is overruled.

Conclusion

We affirm the judgment of the trial court.

Alma L. L pez, Chief Justice

DO NOT PUBLISH