James Heard v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAMES HEARD,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-02-00280-CR

Appeal from the

Criminal District Court No. 2

of Dallas County, Texas

(TC#F-0200814-VI)

MEMORANDUM OPINION

James Heard appeals from two convictions by a jury, both for the offense of burglary of a habitation, each offense occurring on the same day. The two offenses were tried together before a jury, which found Heard guilty, and, after hearing evidence concerning prior convictions, found enhancement allegations to be true and assessed his punishment at ninety-nine years for each offense. In two issues, he contends that the trial court erred by admitting testimony of an extraneous auto theft because its probative value was substantially outweighed by the danger of unfair prejudice and that the trial court erred in failing to grant his challenge for cause against a venireperson who had reached a conclusion as to his guilt for the offenses charged, thereby establishing a bias and prejudice against him. We affirm.

Heard contends in Issue One that the trial court erred by admitting evidence of an extraneous offense of auto theft because any probative value was substantially outweighed by the danger of unfair prejudice. The standard for reviewing a trial court s ruling on the admission or exclusion of evidence is abuse of discretion. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). As long as the trial court s ruling is within the zone of reasonable disagreement, there is not an abuse of discretion. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). We will uphold the trial court s decision if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

One of the complainants returned to her residence and discovered it had been burglarized and numerous items taken. On the same date, perhaps about a mile away, a repairman at the residence of the second complainant observed a suspicious person near that residence that had also been burglarized. The repairman identified Heard as the man he observed. When the suspect fled, the repairman recorded the license plate number of the getaway vehicle. Police arrested Heard in that vehicle. The State offered testimony that the getaway vehicle had been stolen.

The State maintains that evidence that the truck Heard was driving was stolen was admissible as same-transaction contextual evidence. Such evidence is that which concerns other offenses connected to the primary offense and which is necessary for the state to logically present evidence of the charged offense. Sparks v. State, 935 S.W.2d 462, 466 (Tex. App.--Tyler 1996, no pet.).

Evidence presented showed that Mitchell D. Gatson, the Dallas police officer who arrested Heard, had received both notification that the car driven by Heard was stolen and that it was involved with the burglaries at issue here. Gatson testified that he arrested Heard for driving a stolen car. We hold that the evidence of the stolen car was connected with the offense in question and was necessary for the State to logically present evidence of the charged offenses.

Once the trial court determines that evidence of an extraneous offense is admissible as same-transaction contextual evidence, the court must, upon proper objection, balance the probative value of the evidence against the danger of unfair prejudice. Id. A Rule 403 balancing test includes the following factors: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable--a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).

Under the circumstances of this case, the fact that the vehicle in question was stolen was not a fact of consequence in this prosecution for burglary; the evidence had the potential to impress the jury in some irrational but nevertheless indelible way; it took the proponent little time to develop the evidence; and the fact is not related to an issue in dispute. We hold that the trial court erred in overruling Heard s Rule 403 objection to evidence that the car Heard was driving was stolen.

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. Inasmuch as the error is not constitutional, we apply Rule 44.2(b) and disregard the error if it does not affect the appellant s substantial rights. Id.; see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh g). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In making this determination, we review the record as a whole. Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248 (1946).

There were several references before the jury to the fact that the vehicle Heard was driving was stolen. Counsel for Heard mentioned this in his final argument, while the prosecutor did not. The jury was instructed to consider extraneous offenses only if they found the defendant committed them, and then it might only be considered in determining the defendant s motive, opportunity, intent, plan, identity, knowledge or absence of mistake, if any, alleged against him in the indictment. Both Heard and the vehicle he was driving were positively identified as being present at one of the burglaries; Heard made a statement acknowledging his participation in the burglaries as a party; and he was in possession of property taken in the burglaries at the time of his arrest. We hold that, given the entire record, the admission of the evidence that Heard was driving a stolen car during the burglaries and at the time of his arrest did not affect his substantial rights. We overrule Issue One.

Heard urges in Issue Two that the trial court erred in failing to grant his challenge for cause against a venireperson who had reached a conclusion as to his guilt for the offenses charged and who had established a bias and prejudice against him. During the voir dire examination, the venireperson in question testified that he could hear Heard tell his counsel, If I m going to get some time, let s just get on with it. He said it bothered him. He also related that Heard made a derogatory remark about another venireperson when the panel was being questioned about whether they could accept the minimum and maximum punishments. When asked if knowing what he knew would maybe cause him to prejudge the evidence, the venireperson replied, If I was sitting in this chair, I don t think if I was innocent, I would say, If I m going to get some time, let s just get on with it. The venireperson related that he was fine with the law. The trial court overruled Heard s challenge for cause.

To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; (5) he identified an objectionable juror; and (6) he claimed he would have struck the objectionable juror with a peremptory strike if he had one to use. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003). Heard asserted a clear and specific challenge for cause; he used a peremptory strike against the venireperson in question; he exhausted all of his peremptory challenges, and the trial court denied his request for additional peremptory challenges. At the time the trial court denied Heard s challenge for cause, counsel for Heard stated to the court, And we state that we were -- at this time, we were required to accept jurors who were not acceptable to us in that -- not acceptable to the defense. Counsel did not identify to the court any particular juror who was objectionable. An appellant fails to preserve error with respect to a challenge for cause where he or she identifies the objectionable juror in the appellate court, but not at the trial court level. Id. at 282-83. In the case at bar, Heard does not identify the objectionable juror at either level. Consequently, we hold that he has waived his right to complain on appeal that the trial judge erroneously overruled his challenge for cause. We overrule Issue Two.

The judgments are affirmed.

JOHN HILL, Chief Justice (Ret.)

November 18, 2004

Before Panel No. 5

Hill, C.J. (Ret.), McClure, and Chew, JJ.

Hill, C.J. (Ret.) sitting by assignment

(Do Not Publish)