Johnathan L. Toliver v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-06-00388-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHNATHAN L. TOLIVER, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Johnathan L. Toliver appeals his conviction for delivery of a controlled substance, cocaine, in an amount of four grams or more but less than 200 grams, including any adulterants and dilutants, a first degree felony.1 In three issues, Appellant contends that the evidence was legally and factually insufficient to support the jury s verdict and that the trial court erred in allowing evidence of extraneous offenses to be admitted at trial. The State did not file a brief. We affirm.

Background

For quite some time in the early part of 2006, the Tyler Police Department investigated Appellant as a suspected drug dealer. Appellant was believed to have operated crack cocaine or trap houses in the past and was suspected of still doing so. To aid in its investigation, the Tyler Police Department enlisted the services of Jimmy Wallace, a known drug user, as a confidential informant. Wallace contacted Appellant and set up a meeting with Appellant at a hotel in Tyler for the purpose of purchasing crack cocaine. After completing that transaction, Wallace contacted Appellant and set up a meeting at Appellant s house in Tyler, again for the purpose of purchasing crack cocaine. On May 25, 2006, Ronnie Tekell, an investigator with the Tyler Police Department s Narcotics Unit, drove Wallace near Appellant s house. Tekell searched Wallace and found no drugs on him. He placed an audio/video camera on Wallace s shirt button and gave Wallace $175 to purchase crack cocaine from Appellant. Then, Wallace went to Appellant s house. The camera on Wallace s shirt button recorded his presence and activities in Appellant s home. However, because of the position of the camera, the video recording did not show any drugs changing hands. When Wallace returned to Tekell, Wallace did not have the $175, but did have more than four grams of crack cocaine. After this transaction, the Tyler Police Department continued to investigate Appellant.

Several months later, Appellant was indicted for delivery of a controlled substance, cocaine, in an amount of four grams or more but less than 200 grams, including any adulterants and dilutants. This charge was based on the May 25 transaction between Appellant and Wallace that occurred at Appellant s home. Appellant pleaded not guilty, and the case proceeded to trial. At the conclusion of the evidence, the jury found Appellant guilty of delivery of a controlled substance, namely cocaine, as alleged in the indictment. Further, Appellant pleaded true to the enhancement paragraph in the indictment, and the jury assessed his punishment at life imprisonment and a fine of $10,000.2 This appeal followed.

Sufficiency of the Evidence

  In his second issue, Appellant contends that the evidence was legally and factually insufficient to support his conviction. Specifically, Appellant argues there is no evidence that he actually transferre[d] crack cocaine to Wallace.

Standard of Review

  Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

In reviewing factual sufficiency, we consider all the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Id.; see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).

Under either the legal sufficiency or factual sufficiency standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. As limited by the indictment, a person commits the offense of delivery of a controlled substance by knowingly delivering a controlled substance, namely cocaine, in an amount of four grams or more but less than 200 grams, including adulterants and dilutants. See Tex. Health & Safety Code Ann. 481.112 (a), (d) (Vernon 2003).

Legal Sufficiency

In his legal sufficiency argument, Appellant argues that Wallace is a known drug user who cannot be trusted and there is no other evidence that Appellant actually delivered the crack cocaine to Wallace. However, Appellant admits Wallace testified that Appellant delivered crack cocaine to him. In addition, Tekell testified that he searched Wallace before Wallace went to Appellant s home and that there were no drugs on his person. Tekell then gave Wallace $175, and Wallace went into Appellant s home. Upon his return, Wallace had more than four grams of crack cocaine.

Viewing the evidence in the light most favorable to the jury s verdict, we conclude that, from this evidence, a rational trier of fact could have found the elements of delivery of a controlled substance, namely cocaine, in an amount of four grams or more but less than 200 grams, beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. Therefore, the evidence is legally sufficient to support the jury s verdict.

Factual Sufficiency

A neutral review of all the evidence reveals some evidence contrary to the jury s verdict. Specifically, the video recording does not show an exchange of drugs between Appellant and Wallace. Additionally, as Appellant points out, there were reasons that the jury might have doubted Wallace s testimony. Appellant presented evidence that Wallace was motivated to assist the police because he had a pending drug charge, and Wallace admitted that he had used drugs in the recent past. Nonetheless, we must consider this evidence in the context of the record as a whole. Tekell explained the scope of his search of Wallace conducted prior to Wallace s entering Appellant s home. Wallace had no crack cocaine on his person before entering Appellant s home, and then afterwards, he had more than four grams of crack cocaine. Wallace testified that Appellant gave him crack cocaine in exchange for $175.

Generally, it is for the jury to determine the weight to be afforded the testimony of a witness and to resolve any conflicts in the evidence. See Wesbrook, 29 S.W.3d at 111; see also Watson, 204 S.W.3d at 409 (noting that articles 36.13 and 38.04 of the Texas Code of Criminal Procedure are often cited for the proposition that jury verdicts should not ordinarily be disturbed when supported by competent evidence, but that criminal appellate courts in Texas have never interpreted them to wholly prohibit the limited factual review that is otherwise inherent in their appellate jurisdiction). The jury could have believed Wallace s testimony, and while the video recording does not show the actual transfer of crack cocaine, there is nothing on the video recording that is inconsistent with a drug purchase.

We have reviewed the record in its entirety, giving consideration to all the evidence both for and against the jury s finding. Our review has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. See Ortiz, 93 S.W.3d at 87; see also Watson, 204 S.W.3d at 417; Sims, 99 S.W.3d at 601. Therefore, the evidence was factually sufficient to support the jury s guilty verdict. Accordingly, Appellant s second issue is overruled.

Extraneous Offenses

In his first issue, Appellant contends that the trial court erred in admitting evidence of extraneous offenses. Appellant claims that such evidence was inadmissible based on Texas Rules of Evidence 403 and 404(b).

Standard of Review

A trial court s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Montgomery v. State, 810 S.W.2d 372, 390 91 (Tex. Crim. App. 1990). The trial court is in the best position to decide questions of admissibility, and we will uphold a trial court s decision to admit or exclude evidence if it is within the zone of reasonable disagreement. Rodriguez, 203 S.W.3d at 841. A determination is beyond the zone of reasonable disagreement if by no reasonable perception of common experience could it be concluded that the proffered evidence had a tendency to make the existence of a fact of consequence more or less probable than it would be otherwise. Montgomery, 810 S.W.2d at 391. If the trial court s ruling on the admission of evidence is correct under any theory of law, the trial court s decision should not be disturbed even if the trial court gives the wrong reason for its ruling. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Applicable Law

Rule 404(b) of the Texas Rules of Evidence provides in pertinent part as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

Tex. R. Evid. 404(b). Thus, extraneous offense evidence may be admissible if relevant to prove some other fact. Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). The list contained in Rule 404(b) is not exhaustive. Id. Extraneous offense evidence, therefore, may be admissible because it is relevant to an affirmative defense raised by the defendant or a defensive issue that negates an element of the crime. Id.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Evidence that is not relevant is inadmissible. Tex. R. Evid. 402. In Rankin, the court of criminal appeals explained the relevancy inquiry necessary under 404(b) as follows:

Under Montgomery, then, it appears that fact of consequence includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred. An evidentiary fact that stands wholly unconnected to an elemental fact, however, is not a fact of consequence. A court that articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how the evidence makes a fact of consequence in the case more or less likely.

Rankin v. State, 974 S.W.2d 707, 709-10 (Tex. Crim. App. 1996). [A] simple plea of not guilty does not make issues such as intent relevant issues of consequence for relationship evidence Rule 404(b) purposes . . . . Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002). But cross examination of the State s witnesses or presentation of various defensive theories can place intent at issue. Id.; see also Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).

Extraneous offense evidence may be admissible to show identity when it is an issue in the case. See Lane, 933 S.W.2d at 519. To be relevant to identity, evidence of an extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant s distinctive and idiosyncratic manner of committing criminal acts, akin to a signature. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006). Extraneous offense evidence may be admissible to demonstrate absence of mistake. See Johnston, 145 S.W.3d at 219. Furthermore, evidence of extraneous offenses may be admissible to rebut a defensive theory. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

When a defendant makes a Rule 403 objection as well, even if the trial court determines that the evidence of extraneous offenses is admissible, the court must conduct a balancing test to determine if the probative value of the evidence is substantially outweighed the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. See Rodriguez, 203 S.W.3d at 843; see also Tex. R. Evid. 403. Factors to be considered in making this determination include the probative value of the evidence, the potential of the evidence to impress the jury in some irrational, but nonetheless indelible way, the time needed to develop the evidence, and the proponent s need for the evidence. Rodriguez, 203 S.W.3d at 843.

Analysis

In his brief, Appellant complains of five instances where extraneous offenses were admitted into evidence. Specifically, Appellant complains that the trial court allowed evidence that he operated a crack cocaine house on Walnut Street, operated a known trap or crack house on North Hill Street where a search warrant was executed and he was placed under arrest for possession, sold crack cocaine to Wallace at a hotel in Tyler, was served with a search warrant at his residence on Kennedy Street, and sold drugs to an undercover officer at his residence on Walnut Street.

Regarding the extraneous offense of selling crack cocaine to Wallace at a hotel in Tyler, Appellant complains the trial court erred in admitting State s Exhibit 1A3 and State s Exhibit 4. State s Exhibit 1A is an audiotape of the conversation between Appellant and Wallace setting up the drug deal at a hotel in Tyler. After the evidence was offered, Appellant made no Rule 404(b) objection and the trial court admitted the evidence. Only after the State began publishing the exhibit to the jury did Appellant make a Rule 404(b) objection. The trial court then determined that the evidence was relevant to prove opportunity, intent, motive, and lack of accident or mistake on the part of Appellant. Appellant has offered no explanation for his failure to raise a Rule 404(b) objection prior to Exhibit 1A being admitted.

Generally, in order for an appellant to argue on appeal that a trial court erred in admitting evidence, he must have preserved the error at trial by making a proper objection and securing a ruling on the objection. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also Tex. R. App. P. 33.1 (describing the necessary steps to preserve error for appellate review). An objection should be made as soon as the ground for objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Generally, this occurs when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If a party fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived. Id. Similarly, if a party fails to object until after an objectionable exhibit has been admitted into evidence, his objection is untimely and error is waived. Darnell v. State, No. 03-95-00647-CR, 1997 Tex. App. LEXIS 1807, at *11-12 (Tex. App. Austin Apr. 10, 1997, no pet.)(not designated for publication)( Appellant s objection was not voiced when the exhibit was introduced into evidence. The objection was not timely and any error in the admission of [the exhibit] was waived. ); see Perry v. State, 689 S.W.2d 256, 257 (Tex. App. Waco 1985, no pet.). Because Appellant did not timely make a Rule 404(b) objection to the admission of State s Exhibit 1A, any error in the admission of this evidence is waived.

State s Exhibit 4 is the video recording of the drug deal between Appellant and Wallace at the hotel in Tyler, which occurred prior to the incident described in the indictment. The trial court determined that the evidence was relevant and admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. However, the State did not explain how evidence of this drug deal was relevant when it argued for admission of the evidence to the trial court, nor has the State presented any such arguments to this court. The trial court did not explain the relevance of the video recording to prove some other facts in ruling that the evidence was admissible, and we fail to see the relevance of this evidence. See Johnston, 145 S.W.3d at 219. Further, Appellant was not contesting motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Thus, these issues would not be a fact of consequence in this case. See Rankin, 974 S.W.2d at 709-10. Therefore, the decision to admit the video recording of the drug deal at the hotel in Tyler was outside the zone of reasonable disagreement. See Rodriguez, 203 S.W.3d at 841.

But a determination that error occurred is only one part of the analysis. A nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). The erroneous admission of the extraneous offense evidence in this case is nonconstitutional error. See id. It is well established that the improper admission of evidence is not harmful error if the same facts are proved by other properly admitted evidence. SeeMcNac v. State, 215 S.W.3d 420, 425 (Tex. Crim. App. 2007);Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).

Here, Appellant failed to object to testimony that Appellant had sold drugs to Wallace at a hotel in Tyler and waived objection to the audiotape of the telephone conversation setting up this drug sale. Thus, the same facts shown on the video recording are proved by other properly admitted evidence. We conclude that the trial court s error in admitting the video recording of the drug sale to Wallace at the Tyler hotel is harmless. See McNac, 215 S.W.3d at 425; Brooks, 990 S.W.2d at 287; Anderson, 717 S.W.2d at 628.

We address Appellant s remaining complaints regarding the admission of extraneous offenses by focusing on the harm issue. Appellant did not object to other testimony that he was known to run crack cocaine or trap houses, was involved in drugs, sold crack cocaine, was reported by other narcotics officers regarding his activities at his residence on Turner Street, had a residence on North Hill Street that was a known crack house, sold drugs to undercover officers at his residence on Walnut Street, was served with a search warrant after June 14, 2006, at his residence on Kennedy Street, had a search warrant executed on him at his residence at North Hill Street, was involved in a sale of drugs on May 24, 2006,4 and was a long time drug dealer. Thus, any error in admitting evidence that Appellant operated a crack cocaine house on Walnut Street, operated a known trap or crack house on North Hill Street where a search warrant was executed and he was placed under arrest for possession, was served with a search warrant on Kennedy Street, and sold drugs to an undercover officer at his residence on Walnut Street is harmless because Appellant did not object when the evidence was offered in another form. See Saldano v. State, 232 S.W.3d 77, 102 (Tex. Crim. App. 2007), cert. denied, 76 U.S.L.W. 3454 (U.S. Feb. 25, 2008) (No.07-7815); Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998).

Appellant s first issue is overruled.

Disposition

Having overruled Appellant s two issues, the judgment of the trial court is affirmed.

BRIAN HOYLE

Justice

Opinion delivered March 19, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1See Tex. Health & Safety Code Ann. 481.112(a), (d) (Vernon 2003).

2 An individual adjudged guilty of a first degree felony shall be punished by imprisonment for life or for any term of not more than ninety-nine years or less than five years and, in addition, a fine not to exceed $10,000. See Tex. Penal Code Ann. 12.32 (Vernon 2003).

3 Incorrectly identified as State s Exhibit 2 in Appellant s brief.

4 This was the sale of crack cocaine to Wallace at a hotel in Tyler.