Pickens, Dennis Earl v. The State of Texas--Appeal from 195th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DENNIS EARL PICKENS, )

) No. 08-02-00163-CR

Appellant, )

) Appeal from the

v. )

) 195th District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0153823-HN)

)

OPINION ON REMAND

Dennis Earl Pickens was convicted by a jury of possession of cocaine, and assessed punishment at 25 years= imprisonment. On July 15, 2004, this Court affirmed Appellant=s conviction. Pickens v. State, No. 08-02-00163-CR, 2004 WL 1576783 (Tex.App.--El Paso July 15, 2004, pet. granted)(not designated for publication). Appellant filed a petition for discretionary review, which was granted by the Court of Criminal Appeals. On June 22, 2005, the Court of Criminal Appeals issued an opinion, which affirmed in part and reversed in part our prior decision. See Pickens v. State, 165 S.W.3d 675 (Tex.Crim.App. 2005). The Court of Criminal Appeals remanded the case to this Court for further analysis on Appellant=s fourth issue, in which he complained of jury charge error by failure to include an instruction pursuant to Article 38.23. Id. at 680-81.

In our prior opinion, this Court summarized the facts as follows:

On June 19, 2001, the Dallas Police Department received several citizen=s complaints about illegal drug sales at a car wash in the 2400 block of Starks in South Dallas. Officers Thomas Peterson and Scott Sayers were working on special assignment in the area and were dispatched to investigate the drug complaints. Officer Peterson conducted field surveillance on foot some distance from the scene while his partner stayed in the patrol car at another location. Officer Peterson concealed himself behind some cut tree limbs in the backyard of a nearby residence and observed the activities at the car wash with a pair of binoculars.

From the hidden location, which was about fifteen to twenty yards away from the car wash, Officer Peterson observed Appellant standing out in the parking lot, engaging in what appeared to be a hand to hand drug transaction with personal property exchanged for something Officer Peterson could not see. The officer then saw Appellant walk over to a vehicle, get into the driver=s seat, and lean the seat back. Appellant was the only passenger in the vehicle and he kept the door of the vehicle open. An unknown individual then approached the vehicle and handed Appellant money. Officer Peterson observed Appellant lift up the plastic cup holder console and remove a clear plastic baggie which contained several capsules. Appellant shook a few of the capsules into the palm of his hand and the unknown individual removed several capsules and left. In a period of ten to fifteen minutes, Officer Peterson observed two other similar hand to hand transactions. Based on previous experience, Officer Peterson knew from the packaging that such capsules typically contain powdered heroin and powdered cocaine.

After witnessing what he believed to be a felony in progress, Officer Peterson radioed Officer Sayers a description of Appellant and told him to get backup. Officer Sayers later radioed and told Officer Peterson that he was en route to detain Appellant until backup arrived. Officer Peterson then observed Officer Sayers approach Appellant and ask him to exit the vehicle. Officer Sayers testified that when he approached the vehicle, Appellant was sitting on the driver=s side with his legs hanging out of the vehicle and the door open. When Appellant exited the vehicle, Officer Sayers frisked him for weapons. Appellant was taken into custody and backup officers at the scene conducted an inventory search of the vehicle prior to having it towed to the city pound.

The officers recovered from the vehicle a plastic bag with white and brown pills from underneath the cup holder and discovered additional drugs in the glove box. The drugs tested positive for cocaine and heroin. The drug analysis report showed the drugs recovered were controlled substances, which consisted of 59 capsules of brown powder, containing heroin and weighing 9.9 grams, and 31 half pink capsules, containing cocaine and weighing 2.2 grams. Money inside an organizer, totaling $540, was also seized from inside the vehicle.

Appellant testified that in the morning on the day he was arrested, he called a wrecker to pick up his car and take it to a mechanic's garage for wiring repair. Appellant led the tow truck driver to the garage in another vehicle he had purchased the day before. After leaving the garage, Appellant planned to take the vehicle he was driving back to the seller for brake work. Appellant arranged for an acquaintance, Wayne Pratt, to follow him to the seller=s business, so he could drop the vehicle off and not have to sit around and wait for the repairs to be done. Appellant left with Mr. Pratt and another person named Charles Frazier. Mr. Pratt was driving them around, making stops on their way back to South Dallas. At the intersection of Starks and Bexar, Mr. Pratt pulled into a car wash and Appellant got out of the vehicle to talk with a friend.

Appellant was talking with his friend when Officers Peterson and Sayers pulled into the car wash and parked by a dryer. People started running away. The officers left and went to another building down the street. Appellant continued talking with friends. Officer Sayers then returned to the car wash by himself. Officer Sayers pointed at Appellant, who was standing by a Suburban van, called him over and asked him what he was doing. The officer told Appellant to stand at the back of the vehicle that Mr. Pratt had been driving. Officer Sayers got into the car and started to look around for a few seconds. The officer then exited and told Appellant to go stand at the front of the vehicle. Officer Sayers then handcuffed Appellant and escorted him to the patrol car.

Appellant testified that the vehicle the police searched that day was not his. Appellant explained that his organizer was on top of the vehicle. The cash in his organizer was money he earned by driving around a handicapped woman. Appellant denied possessing the heroin and cocaine. The vehicle was registered to someone named Pamela Jean Conley who lived at 4927 Bonnie View. Appellant admitted that he lived at that address prior to his incarceration, but did not know the individual listed as the owner. Appellant knew nothing about the drugs found in the vehicle.

On original submission, Appellant complained that the trial court erred by failing to include an Article 38.23 instruction. The Court of Criminal Appeals has remanded this case to us to determine under the appropriate jury charge error analysis if there was a factual dispute warranting an Article 38.23 instruction, and if so, error which would be subject to a harm analysis.

When an appellant alleges jury charge error on appeal, our first task is to determine whether error actually exists in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). If there is jury charge error, we must then determine if the error caused sufficient harm to warrant reversal. Hutch, 922 S.W.2d at 170-71; Almanza, 686 S.W.2d at 171. Preservation of charge error does not become an issue until we assess harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury charge error unless the record shows Aegregious harm@ to the defendant. Id. at 743-44; Almanza, 686 S.W.2d at 171.

Article 38.23 provides that no evidence obtained by an officer or other person in violation of the laws or constitutions of Texas or the United States shall be admitted in evidence against the accused on the trial of any criminal case. See Tex.Code Crim.Proc.Ann. art. 38.23 (Vernon 2005). It also provides that where the legal evidence raises such an issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained by such a violation, then it shall disregard any such evidence. Id. An Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004). A fact issue concerning whether the evidence was legally obtained may be raised A>from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.=@ Id. If a defendant successfully raises a factual dispute over whether evidence was illegally obtained, inclusion of a properly worded Article 38.23 instruction is mandatory. Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996).

Here, Appellant asserts that his testimony shows that while he and his companions were talking and washing the car, Officer Sayers without any justification, probable cause, or reasonable suspicion, simply started searching the car. According to Appellant, he was drinking beer and talking with friends at the car wash and never re-entered Mr. Pratt=s vehicle after it was parked. In contrast, Officer Peterson testified that he observed a felony in progress, that is, he witnessed Appellant conduct hand-to-hand drug transactions and enter the vehicle and remove capsules, which he believed to be narcotics, from a plastic baggie kept in the vehicle=s console. Based on Officer Peterson=s account, the officers thus had probable cause to arrest Appellant and conduct a search incident to arrest. We conclude the Appellant=s testimony raised a factual dispute as to how the evidence was obtained, in that if believed, it negated the facts Officer Peterson had asserted as grounds for probable cause to arrest him and the validity of the subsequent search.

Because the evidence raised a factual dispute, the trial court erred in failing to include an Article 38.23 instruction in the jury charge. Having found error, we must next determine whether the error resulted in egregious harm. See Hutch, 922 S.W.2d at 171 (egregious harm analysis required when charging error is not preserved). Errors that Aresult in egregious harm are those which affect >the very basis of the case,= deprive the defendant of a >valuable right,= or >vitally affect a defensive theory.=@ Hutch, 922 S.W.2d at 171, quoting Almanza, 686 S.W.2d at 172. Reversal is warranted only if the error is so egregious and created such harm that Appellant did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. In our analysis, we assess the degree of harm in light of: (1) the entire jury charge; (2) the state of the evidence including contested issues and the weight of the probative evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171. Further, the record show must that a defendant has suffered actual, rather than merely theoretical harm from the jury instruction error. Ngo, 175 S.W.3d at 750; Almanza, 686 S.W.2d at 174.

We first consider the entire jury charge. The charge instructed the jury that Appellant was charged with possession of a controlled substance and that A[u]nless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the charge of possession of a controlled substance, and so say by your verdict.@ The charge contains general language, informing the jury that: (1) the defendant is presumed innocent; (2) the prosecution has the burden to prove the defendant guilty by proving every element of the offense beyond a reasonable doubt; (3) the burden of proof rests on the State throughout the trial and never shifts to the defendant; and (4) the jury is the exclusive judges of the facts proved, of the credibility of the witnesses, and the weight of their testimony. While the charge was erroneous by omission of an Article 38.23 instruction, we find that as a whole the jury charge did not further compound any harm suffered.

With regard to the state of the evidence, Appellant=s testimony created a fact issue as to whether Officer Peterson witnessed Appellant conducting drug transactions at the car wash. After reviewing the entire record of the trial, we conclude that Appellant=s testimony served primarily to negate his guilt for the offense, thus creating a contested issue, which was related to the jury charge error. However, no harm can be shown on this basis. Despite the lack of an Article 38.23 instruction, the conflicting testimony which created the factual dispute was clearly resolved in favor of the State. Appellant argues that if the jury determined that the search was illegal, the State would have had no case because the drugs founds in the car could not have been considered. To the contrary, if the jury believed Appellant=s testimony that he was just talking and drinking beer, and thus committing no drug offense at all, then the jury would have discredited Officer Peterson=s testimony that he witnessed Appellant conducting drug transactions in a vehicle, resulting in a not guilty verdict because no crime had occurred. Under the particular facts of this case, the factual dispute arises from Appellant=s complete denial of wrongdoing. Thus, if the jury had believed Appellant=s denial, it would have never reached the issue of the legality of the search incident to his arrest. We conclude that any showing of harm on this basis would amount to theoretical, rather than actual harm.

We next consider the arguments by counsel and other relevant information from the trial record. We observe that defense counsel did not expressly contest the legality of the search in either opening or closing argument. Rather, the focus of the defense theory was on attacking the credibility of the police officers and their investigative procedures. In his brief, Appellant asserts that the State=s voir dire focused on the legality of arrest, and effectively, the search. However, Appellant only refers this Court to the State prosecutor=s explanation to the jury during voir dire that unlike on television, Miranda rights are not always read right when someone is arrested. Appellant also claims that the trial court Awas careful to explain to the jury the law regarding the legality of the arrest, and effectively, the subsequent search,@ however, the record shows the trial court merely explained to the jury that as a general rule any admission or confession while in custody cannot be used against the accused unless he has been first apprised of his Miranda rights. After reviewing the record, we find no support for Appellant=s claim that the issue of the legality of the arrest and search was stressed to the jury by either party during voir dire.

Appellant also claims that the State used one of its peremptory challenges on a venire members because it was concerned that the venire member would Asecond guess the legality of the arrest@ and that the first trial had ended in a mistrial because one of the jurors had

second-guessed the legality of the actions of the police officers. We disagree with Appellant=s broad reading of the record in this regard. Rather, the record shows that in providing a race neutral purpose for striking of an African-American venire member, the State argued that it was striking him because he was a security guard and that it did not want Asomeone second-guessing what the police officer does in regard to his profession.@ The State then explained that a juror in security in the first trial was one of the jurors who was not able to come to a verdict, A[s]o the State=s position is we don=t want security second-guessing what police officers do during the trial.@ We conclude that the record on the peremptory challenges does not support Appellant=s egregious harm claim.

After reviewing the entire record under the appropriate Almanza harm analysis standard, we find that egregious harm has not occurred in this case. Accordingly, we overrule Appellant=s fourth issue, the only issue for review on remand.

We affirm the trial court=s judgment.

March 30, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)