Albert Salazar, Jr v. The State of Texas--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-96-115-CR

ALBERT SALAZAR, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 9443

OPINION ON REMAND

A jury convicted Albert Salazar, Jr. of possessing a deadly weapon in a penal institution and sentenced him to ten years in prison. Tex. Pen. Code Ann. 46.10 (Vernon 1994). He appealed, asserting the trial court erred in failing to instruct the jury to disregard a statement that made reference to gang material in his cell. We affirmed the lower court, holding: 1) the reference to gang material was not evidence of extraneous conduct under Rule 404(b), and 2) Salazar failed to assert a timely objection, thus failing to preserve error under Rule 403. Tex. R. Crim. Evid. 403, 404(b). The Court of Criminal Appeals reversed and remanded in an unpublished per curiam opinion, stating: a rational jury could believe that gang affiliation is a bad act, and that [Salazar s] possession of an item inscribed with gang symbols evidenced his affiliation with a gang. [Salazar] is also correct that he preserved his Rule 403 argument. Salazar v. State, No. 465-97 (Tex. Crim. App. August 13, 1997). We now reconsider the merits of Salazar s complaint.

The objectionable comment came from Earnest Dobbs, the officer who searched Salazar s cell. He testified:

Well, the thing that I picked up the first time, it was a piece of cardboard it had markings on it like symbols and stuff that really couldn t read; but you could tell its--I mean, like you see in gang material. I was throwing it out of his house and when I did, I noticed it was way too heavy for a piece of cardboard, I knew substantially too heavy for a piece of cardboard, so, I got out of the house and picked it back up off the floor where I threw it.

(Emphasis added). Upon hearing the remark, defense counsel approached the bench and requested a hearing out of the presence of the jury. Defense counsel asked the judge to instruct the jury to disregard the comment and requested a mistrial. She also asked the court to balance the probative value of the gang reference against its prejudicial impact, as per Montgomery v. State, 810 S.W.2d 372, 387-97 (Tex. Crim. App. 1990)(on rehearing). The court denied the requests for an instruction and a mistrial, but agreed to conduct a Montgomery hearing in order to weigh the probative value of the evidence against its prejudicial effect. The court determined, I think [Dobbs] was trying to explain why he looked, took another look at that piece of cardboard. He gave two reasons, the weight and the peculiar scribblings on the cardboard and that s the reason that it was introduced. Impliedly, the court determined that the probative value outweighed the prejudicial impact of the evidence and overruled Salazar s Rule 403 objection.

RULE 404(b): WAS IT ERROR?

Rule 404(b) limits the admissibility of other crimes, wrongs, or acts. Tex. R. Crim. Evid. 404(b). Normally, the State is entitled to introduce evidence of the facts and circumstances surrounding the charged offense, i.e., the background evidence. Mayes v. State, 816 S.W.2d 79, 85 (Tex. Crim. App. 1991). This evidence is admissible because it illuminates circumstances otherwise dimly perceived by the factfinder. Id. However, it may not be admitted on the sole justification that it is background evidence. Id. at 88.

A relationship between evidence of the extraneous conduct and the evidence necessary to prove the accused committed the crime for which he stands charged must be shown. Harris v. State, 790 S.W.2d 568, 583 (Tex. Crim. App. 1989) (citing Phillips v. State, 659 S.W.2d 415, 418 (Tex. Crim. App. 1983)). Even though evidence of an extraneous offense may be relevant to the proceeding, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to be the perpetrator. Harris, 790 S.W.2d at 583; Phillips, 659 S.W.2d at 418; Thompson v. State, 615 S.W.2d 760, 761 (Tex. Crim. App. 1981). There was no clear showing that Salazar was affiliated with a gang as indicated by Dobbs testimony.

When extraneous offenses are so tightly linked with the principle offense that their introduction enables the jury to view the charged offense in its proper setting, it establishes the context of the offense and therefore may be introduced into evidence. Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986). However, the extraneous offense and the offense charged must be so blended or closely interwoven that they constitute one continuous episode. Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986). This exception exists because it is impracticable to avoid describing the other offense, not because the other offense has any evidentiary purpose. Mayes, 816 S.W.2d at 87 n.4. We can find no such connection between the alleged gang symbols and Salazar s possession of a deadly weapon. Introducing evidence of symbols like you see in gang material could not aid the jury in deciphering the facts surrounding Salazar s possession of a deadly weapon. The trial court should have instructed the jury to disregard the statement. Having not done so was error.

RULE 404(b): WAS THE ERROR HARMLESS?

In Fowler, we addressed the application of Rule 44.2(b) to harm which flows from non-constitutional error. See Fowler v. State, No. 10-96-190-CR, slip op. at 18-21 (Tex. App. Waco Nov. 26, 1997, no pet. h.); Tex. R. App. P. 44.2(b). After thorough research regarding the new rule, we concluded the entire record must be reviewed to determine whether the error had more than a slight influence on the verdict. Fowler, slip op. at 21. If we find that it did, we must conclude that the error affected the defendant s substantial rights in such a way as to require a new trial. Id. If we have grave doubts about the error s effect on the outcome, we must find that the error was such as to require a new trial. Id. Otherwise, we should disregard the error. Id.

ANALYSIS

Applying the standard to this case, we conclude that the introduction of the extraneous conduct had no more than a slight influence on the verdict; thus, Salazar s substantial rights were not affected. The state showed that an item which the defense conceded could be used as a deadly weapon was found in Salazar s cell. Considering that the defense stipulated that the piece of metal was a deadly weapon, the only question for the jury (as stated in defense counsel s closing argument), was whether Salazar was guilty beyond a reasonable doubt of possessing the weapon. The record shows that Salazar lived in a private cell; he did not share it with anyone. On cross examination, Dobbs stated that the cardboard never left his sight. As he picked up the cardboard and threw it out of Salazar s cell, he realized it was too heavy for cardboard, so he immediately walked over and picked it up a second time. There was testimony that Salazar started acting suspicious when Dobbs began to do a shake down of his cell, and Salazar offered to give up certain contraband (namely a mirror) in order to avoid having his cell investigated. We believe the evidence clearly shows that Salazar had the weapon in his care, custody, and control and that the error did not substantially influence the jury s verdict. Therefore, we find that the trial court s failure to instruct the jury to disregard Dobbs non-responsive statement after Salazar s 404(b) request must be disregarded. Tex. R. App. P. 44.2(b); Fowler, slip op. at 18-21.

RULE 403: WAS IT ERROR?

Salazar s second argument addresses the prejudicial impact of the reference to gang material. Normally, having determined that the trial court s failure to give a 404(b) instruction was error, we would not address the 403 objection. However, the Court of Criminal Appeals has directed us to consider it. Thus, we now look to the record to see if it demonstrates that the trial court judge abused his discretion in refusing to give an instruction to disregard after balancing the probative value against the prejudicial impact of Dobbs statement. // We find that his refusal was error. The prejudicial impact of the statement outweighed any probative value that it might have had. The trial court should have instructed the jury to disregard the statement, and not doing so was error. As the judge commented out of the presence of the jury, he believed the evidence was relevant to the facts surrounding how Dobbs came to find the shank. We find the probative value to be minimal on the question of possession in light of the prejudicial impact of the statement. However, any error committed by the trial court in refusing to give a jury instruction was harmless, as previously discussed under Rule 404(b).

Having determined that the reference to gang scribblings was not harmful, we overrule Salazar s point of error and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 26, 1997

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