RAFAEL MELENDEZ VILLEGAS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed; Opinion Filed October 27, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-04-01839-CR
No. 05-04-01840-CR
No. 05-04-01841-CR
No. 05-04-01842-CR
No. 05-04-01843-CR
 
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RAFAEL MELENDEZ VILLEGAS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F04-01350-NL, F04-49858-WL,
F04-49859-HL, F04-73805-QL, F04-73806-QL
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OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Francis
        Rafael Melendez Villegas was charged with four aggravated robbery offenses and one offense of possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams. Appellant entered open guilty pleas before a jury to the aggravated robberies and to the lesser-included offense of possession of cocaine in an amount of four grams or more but less than 200 grams. After finding appellant guilty, the jury assessed punishment at ten years in prison for cocaine possession and twenty years in prison for each aggravated robbery.         In three issues, appellant contends the trial court erred in permitting the State to introduce hearsay testimony and evidence of extraneous bad acts and in not permitting him to ask prospective jurors whether they could consider placing on probation a person convicted of four aggravated robberies. We affirm.
        In his first issue, appellant contends the trial court erred in permitting the State to introduce improper hearsay testimony into evidence. The disputed testimony was offered to rebut appellant's trial testimony. Appellant testified he participated in the robberies at the direction of fellow gang members. He described himself as a low-ranking gang member and crack cocaine addict who committed crimes for the gang in exchange for drugs. Although he was arrested while living in an apartment the gang used for drug sales, appellant testified his function was to clean the apartment while another gang member sold the drugs.
        Called to rebut appellant's testimony, Dallas Police Officer Jennifer Castleberg testified:
Prosecutor:
 
From what you have learned, what is [appellant's] position in the gang?
 
Counsel:
 
I am going to object, that question calls for a hearsay answer. Improper foundation.
 
Trial Court:
 
Overruled.
 
Witness:
 
I know that he is-we have heard and have seen things that indicate that he is a member of Junior Home Boys. I am not sure exactly, I couldn't tell you hierarchy, even if they have one. Somewhere in the middle. I know that he doesn't-we never saw him run the streets, you know the way they call it, he has always been inside. We have always heard that he dealt drugs from inside someplace. He is not a runner that goes around in the streets. From what I have learned from being a police officer, the lower ones are usually the ones on the street.
 
Counsel:
 
I am going to object, that is nonresponsive, object again it is hearsay.
 
Trial Court:
 
I will sustain what is not responsive.
 
Counsel:
 
I will ask that the jury disregard, that the last answer be stricken.
 
Trial Court:
 
I will ask you not to consider that last answer. Obviously you can't put it out of your mind, don't use it in your deliberation. Just answer the question, officer.
 
Witness:
 
I'm sorry.
 
Trial Court:
 
Question was, Where does he fit into the hierarchy, and you don't know?
 
Witness:
 
No, I don't.
 
Trial Court:
 
Okay.
 
        Appellant contends Castleberg's comment that officers “have always heard that he dealt drugs from inside someplace” is rank hearsay and is especially objectionable because the implied source was unidentified police officers. Although the trial court sustained his responsiveness objection, appellant contends the trial court's failure to specify what it deemed unresponsive left the jury to “play a guessing game regarding what portion of Castleberg's response to disregard and what portion to accept into evidence.”
        Appellant argues Castleberg's testimony mischaracterized him as a drug dealer to his detriment, citing as authority for reversal, Daniels v. State, 25 S.W.3d 893, 898 (Tex. App.-Houston [14th Dist.] 2000, no pet.). In Daniels, the trial court erroneously admitted, over the defendant's objection, a police officer's testimony that a confidential informant told him that the defendant was selling marijuana from her home. See id. Unlike Daniels, however, the trial court in the present case sustained appellant's objection to responsiveness and instructed the jury to disregard the challenged testimony.
        Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam); Williams v. State, 643 S.W.2d 136, 138 (Tex. Crim. App. [Panel Op.] 1982). An instruction to disregard does not cure error if the information was clearly calculated to inflame the minds of the jury and is so inflammatory as to suggest the impossibility of withdrawing its impression within the minds of the jurors. See Barnes v. State, 876 S.W.2d 316, 326 (Tex. Crim. App. 1994).
        The trial court sustained appellant's objection and instructed the jury to disregard the entire answer. Because the trial court instructed the jury to disregard the entire answer, we disagree with appellant that the instruction presented any ambiguity regarding what portion of the answer was unresponsive. To ensure the jury's understanding of its ruling, the trial court repeated the question to Castleberg and solicited her answer that she did not know appellant's position within the gang hierarchy. Finally, neither the State's question, unconnected to drug dealing, nor Castleberg's nuanced answer, appears calculated to inflame the minds of the jury. We conclude the trial court's instruction to disregard cured any error. We overrule appellant's first issue.
        In his second issue, appellant contends the trial court erred in overruling his rule 403 and 404(b) objections and admitting evidence of extraneous, illegal drug transactions. We review the trial court's determination to admit evidence under an abuse of discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
        Appellant was arrested while living in an apartment where drugs were being sold. When appellant was arrested, police recovered crack cocaine packaged for sale in nineteen baggies, another small baggie with powered cocaine, spare baggies, and two day timer pages. Officers also recovered plastic “zip” ties and identification documents relevant to appellant's aggravated robbery offenses. On a subsequent visit, officers recovered property taken from the aggravated robbery victims.
        Appellant contends the day timer sheets were inadmissible. In a hearing outside the jury's presence, arresting officer Robert D. Pollard, Jr. testified he found the day timer pages on a counter in the apartment's kitchen. Pollard described the day timer sheets as “bookie sheets” constituting a ledger of drug transactions. Pollard recognized the names of some of the persons recorded as drug addicts in the community. Pollard opined the presence of the bookie sheets indicate that drug sales are occurring at the location where they are found. Pollard could not say appellant authored the ledger, but, according to Pollard, only appellant and his mother lived in the apartment.
        Appellant objected to the drug ledger arguing (1) it was evidence of several extraneous offenses, (2) no proof established that he prepared the drug ledger and (3) its prejudicial effect outweighs its probative value. The trial court admitted the drug ledger into evidence, and Pollard delivered substantially the same testimony before the jury. Dallas narcotics officer Barry Ragsdale testified the packaged cocaine, drug ledger, and a supply of unused baggies suggests the person occupying the apartment was dealing cocaine.
        Evidence is relevant if it has any tendency to make more probable or less probable the existence of a consequential fact. See Tex. R. Evid. 401. Nevertheless, not all relevant evidence is admissible. Moses, 105 S.W.3d at 626. Evidence of extraneous offenses is not admissible as character evidence. See Tex. R. Evid. 404(b). Such evidence may be admissible, however, if the evidence has relevance other than to show character conformity. Moses, 105 S.W.3d at 626. Examples within the rules of evidence include “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .” See Tex. R. Evid. 404(b). Even relevant evidence offered for a permissible purpose under rule 404(b) may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; Moses, 105 S.W.3d at 626.
        Appellant contends the evidence was more prejudicial than probative because it was intended to prove he was dealing drugs rather than possessing them. Although the jury was free to draw its own conclusions, the State's witnesses did not expressly link appellant to the drug ledger. Pollard testified he did not know if appellant prepared the ledger. Ragsdale specifically denied any knowledge of drug transactions involving appellant. Furthermore, in his own testimony, appellant admitted drugs were being sold from the apartment by another gang member. Thus, introducing drug transaction evidence discovered in the apartment is not unduly prejudicial to appellant.
        While admitting the drug ledger into evidence was not unduly prejudicial, it was highly probative of appellant's guilt for the cocaine possession offense. The police officers recovered 4.03 grams of cocaine from the apartment. Thus, it was critical to the State's case to prove appellant knowingly possessed the entire amount found in the apartment. Although appellant entered a guilty plea to possession, he testified four other people lived in the apartment, his function was to clean the apartment, and another gang member sold the drugs. Evidence the drugs were being packaged and sold systematically, with records of the transactions, makes appellant's knowing and intentional possession significantly more probable. Thus, we conclude the probative value of the drug ledger evidence outweighs its prejudicial effect.
        Moreover, when the evidence of the trial offense is blended or closely interwoven with evidence of an extraneous offense, the extraneous offense evidence is admissible as same transaction contextual evidence necessary to show the jury the context and res gestae of the trial offense. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Pollard and the other officers entered the apartment while investigating complaints about drug transactions. While investigating the drug transaction reports, the officers discovered appellant in possession of cocaine. While searching the apartment for evidence related to drug transactions and appellant's possession offense, the officers discovered identification documents taken from the robbery victims. The drug transaction evidence assisted the jury in understanding how the officers linked appellant to the robberies and the circumstances under which appellant possessed cocaine. We conclude the drug ledger was admissible as res gestae of appellant's offenses. Accordingly, we cannot conclude that the trial court abused its discretion in admitting the ledger into evidence. We overrule appellant's second issue.
        In his third issue, appellant contends the trial court erred in not permitting him to ask the jury panel if they would consider probation for someone found guilty of four aggravated robberies offenses. Appellant contends the trial court deprived him of the opportunity to intelligently exercise his peremptory challenges by foreclosing questioning to ascertain the prospective jurors' attitudes and feelings about his commission of four aggravated robbery offenses.
        The trial court exercises broad discretion in jury selection. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). We review the trial court's determination to proscribe a defendant's voir dire question for an abuse of discretion. Id. The trial court abuses its discretion if the defendant's question sought to discover a prospective juror's view on an issue applicable to the case. Id.
        The State contends appellant's proposed question is an impermissible “commitment question” seeking to commit the prospective jurors to a particular verdict based on particular facts. See id. To determine whether a proposed question impermissibly commits a prospective juror, we consider (1) whether the question is a “commitment question,” (2) whether the question would lead to a valid challenge for cause, and (3) whether the question adds facts beyond those necessary for a challenge for cause. Standefer v. State, 59 S.W.3d 177, 179-82 (Tex. Crim. App. 2001).         Questions regarding whether prospective jurors can consider probation in a case are commitment questions. See id. at 181. Not all commitment questions, however, are improper. Id. Appellant's question is improper because he wanted to commit the prospective jurors to consider probation in the event they convicted him of all four aggravated robberies. Appellant is entitled to question the prospective jurors regarding their willingness to consider probation. See Mathis v. State, 576 S.W.2d 835, 839 (Tex. Crim. App. 1979). However, appellant cites no authority holding a juror unqualified to serve if the juror is unwilling to consider probation for an offender whose particular circumstances include four aggravated robbery convictions.
        A jury assessing punishment may consider whether the defendant has committed other crimes or bad acts. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a) (Vernon 2006). Because appellant's commission of other aggravated robberies would be a permissible consideration for the jury in assessing punishment on each case, appellant could not challenge a prospective juror for cause if that prospective juror indicated he or she would not consider probation under the particular facts of appellant's cases. See, e.g., Barajas, 93 S.W.3d at 40 (concluding defendant could not ask question seeking commitment to consider probation despite victim's young age); White v. State, 629 S.W.2d 701, 706 (Tex. Crim. App. 1981) (defendant not entitled to inquire whether prospective juror would not consider life sentence under circumstances of the case). Moreover, appellant's proposed question included more facts, convictions for four aggravated robberies, than was necessary to raise a challenge for cause on a prospective juror's willingness to follow the law on the punishment range for each aggravated robbery.
        We note the record shows the jury panel had already been questioned regarding their willingness to consider the full range of punishment, and one prospective juror had indicated an unwillingness to assess a probated sentence for aggravated robbery in any circumstance. We further note that the trial court stopped the State when it began a similar line of questioning regarding whether the prospective jurors could consider five years or ninety-nine years as punishment for a person pleading, “guilty to an aggravated robbery, four counts . . . .” After interrupting the prosecutor, the trial court impressed upon the jury panel that the inquiry was “[not necessarily in this case. We are talking in the proper case, whatever that case might be.”
        Because appellant's proposed question is a commitment question, would not lead to a valid challenge for cause, and includes facts beyond those necessary for a challenge for cause, we conclude the trial court did not abuse its discretion in precluding appellant from addressing it to the jury panel. See Standefer, 59 S.W.3d at 179-82. We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
041839f.u05