JAMES EDWARD LEWIS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 17, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00997-CR
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JAMES EDWARD LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-80515-05
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OPINION
Before Justices Morris, O'Neill, and Bridges
Opinion By Justice Morris
        In this case, James Edward Lewis challenges his conviction for possession of less than one gram of cocaine. In three issues, appellant complains the trial court abused its discretion in admitting evidence of previous convictions, evidence obtained during an alleged illegal search, and evidence he did not appear for a previous jury trial setting. We affirm the trial court's judgment.
Factual Background
        A police officer saw appellant exchange something with a known drug dealer in a high crime area. When the men saw the officer approach, they quickly parted. Appellant jumped into a nearby car, which immediately left the scene. The officer followed the car until it committed a traffic violation; he then stopped the car for the violation. As he approached the car, the officer saw appellant looking at him as appellant subtly reached his arm behind the center console and appeared to place something there.
        The officer spoke to the driver and appellant. The driver seemed calm, but appellant appeared nervous and excited. While they were speaking, appellant threw a cigarette butt out of his window, hitting the officer on the thigh. The officer had a “gut feeling” that appellant was hiding something, so he had him exit the car for a pat-down search for weapons. At this time, the officer had no specific, articulable facts to lead him to believe appellant was armed. The officer found a large amount of “Chore Boy” wire mesh in appellant's pocket. According to the officer, this dish scrubbing product is often used as a crack pipe filter.
        Afterward, the officer arrested appellant for littering, because he had thrown the cigarette butt onto the ground. During a search pursuant to that arrest, the officer found in appellant's pocket a crack pipe with white residue and more Chore Boy on one end. The officer believed appellant had something in his mouth. When he asked appellant about it, appellant began to swallow. After a struggle, the officer saw an off-white substance in appellant's mouth that he believed was crack cocaine. Appellant first told the officer he did not have anything in his mouth. He then claimed he was eating a caramel and finally claimed he had been eating a sandwich.
        The driver consented to a search of the car. Near the center console where the officer had seen appellant reaching, the officer found a small rock of crack cocaine. In the trunk, the officer found a pill bottle in a duffle bag. The bottle contained appellant's social security card plus what appeared to be trace amounts of crack cocaine.
Discussion
        In his first issue on appeal, appellant contends the trial court abused its discretion during the punishment phase of trial by allowing the State to prove appellant's previous convictions through judgments and a fingerprint expert. Appellant complains the court should not have admitted the evidence because the State had failed to disclose the name of the expert or the judgments in response to a discovery order in the case. Appellant was aware of the previous convictions, due to notices filed by the State pursuant to code of criminal procedure article 37.07 and rules of evidence 404(b) and 609.
        Evidence that is willfully withheld from disclosure under a discovery order should be excluded at trial. See Oprean v. State, 201 S.W.3d 724, 726. Nevertheless, we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard, giving almost total deference to the court's findings of fact based on credibility and demeanor. See id. Here, the trial court concluded, after defense counsel admitted he had received other notice of the previous offenses, that appellant could not have been put at a disadvantage by the State's failure to include the judgments in its response to the discovery order. We additionally conclude appellant could have reasonably anticipated the State would prove the previous offenses through a fingerprint expert.         It appears from the record the prosecutor did not mean to violate the discovery order but believed the notices of extraneous offenses he had given to appellant complied with the order. The prosecutor also offered to link appellant to the previous offenses through a photograph on his jail sheet, rather than through the fingerprint expert. Deferring to the trial court's findings, we conclude it did not abuse its discretion in permitting the State to use the evidence. We resolve appellant's first issue against him.
        In his next issue, appellant complains the trial court erred in failing to suppress the Chore Boy wire mesh obtained during the police officer's pat-down search of him. Appellant specifically argues the officer failed to give specific, articulable facts justifying such a search. The State responds, in part, that, even if the officer's testimony did not justify a weapons search pursuant to the investigative detention, the search was justified as incident to appellant's arrest for littering. We agree.
        Once appellant threw the cigarette onto the street, the officer had probable cause to arrest him for littering and search him pursuant to that arrest. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). The fact that the officer had not yet formally arrested appellant at the time he found the Chore Boy does not alter this analysis. See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). Probable cause to arrest exists where facts and circumstances within the knowledge of the arresting officer would warrant a reasonably prudent person in believing that a particular person has committed a crime. See State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). It is irrelevant that the arrest occurs after the search, so long as sufficient probable cause exists for the officer to arrest before the search. Id. Thus, the pat-down search in appellant's case was a legal search incident to his arrest. The trial court did not abuse its discretion in admitting the Chore Boy into evidence. We resolve appellant's second issue against him.
        Appellant complains in his final issue that the trial court erred in admitting evidence showing he had failed to appear for a previous jury trial setting. He complains the evidence was inadmissible under rule of evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. In a hearing outside of the presence of the jury, the trial court took judicial notice of two personal recognizance bonds in the case that showed he was homeless during some of the pendency of the case.
        We must review the trial court's decision on this matter under an abuse of discretion standard. See Montomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Here, the evidence supported a finding that appellant fled from trial, and therefore possessed some probative value in showing appellant's guilt for the charged offense. See Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987). Given the weight of the State's other evidence, appellant's failure to appear may not have contributed much to the State's case. But likewise, his failure to appear was “not the type of misconduct that can be said to have great unfair prejudicial danger.” Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.-Corpus Christi 1993, pet. ref'd). Under this record, we cannot say the trial court abused its discretion in admitting the evidence of appellant's failure to appear for a previous trial date. We resolve appellant's third issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060997F.U05