DREW AARON CALLAHAN, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND and Opinion Filed May 28, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00780-CR
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DREW AARON CALLAHAN, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2006-1-1555
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OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice O'Neill
        Appellant Drew Aaron Callahan appeals his conviction for failing to change his address on his driver's license. After a jury found appellant guilty of the offense, the trial court assessed punishment at a $250 fine. Appellant presents five issues on appeal. He asserts the trial court erred in permitting certain cross-examination, in excluding evidence to correct a false impression, and in denying a motion to quash the information. He also asserts the evidence is legally and factually insufficient to support his conviction and that the punishment assessed is void. Because we conclude the trial court abused its discretion in excluding certain evidence, but the evidence is legally sufficient to support appellant's conviction, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.         Appellant was involved in a motor-vehicle accident in Sherman, Texas. Officer Charles Smith was called to the scene and in association with his investigation, obtained appellant's driver's license. Appellant's driver's license showed an address in Bonham, Texas. Smith asked appellant if everything on the drivers license was “correct.” Appellant told the officer that the address on his license was his mother's address and that he had been living in Sherman for a couple of months. Smith ticketed appellant for failing to change the address on his license.
        Smith acknowledged that a person can have more than one address and that if appellant had told him he was a student attending college in Sherman, he probably would not have given appellant a ticket. Appellant, however, never told Smith he was a student. In fact, when Smith asked appellant what his occupation was, appellant told him only that he worked at Sears.
        Appellant testified that after he graduated high school in Bonham, he attended Grayson County College in Sherman. At the time he was involved in the motor vehicle accident, he attended college and worked at Sears. Appellant nevertheless claimed his parents' residence in Bonham remained his “home.” He said he never “moved” from the Bonham residence and that he never planned on permanently staying in Sherman. Appellant still received important mail at the Bonham address and it was the address he used for the Internal Revenue Service and Grayson County College.
        Appellant's mother testified in his defense. According to Mother, appellant lives with her in Bonham. Appellant did attend college in Sherman for a while and when he did, he kept his bedroom in Bonham, kept many of his belongings there, and often returned home for weekends. Appellant also continued to receive important mail in Bonham.
        In his fourth issue, appellant contends the evidence is legally insufficient to support his conviction. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The jury, as trier of fact, is the exclusive judge of the witnesses's credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        Under section 521.054(a) of the transportation code, if a person “moves from” the address shown on their driver's license, they must notify the department of the change within thirty days of the change. Tex. Transp. Code Ann. § 521.054(a) (Vernon Supp. 2007). Here, the State presented evidence that appellant's driver's license showed a Bonham address at the time he was involved in a motor vehicle accident. In response to a question whether the information on the license was correct, appellant told the officer the Bonham address was his mother's address and he lived in Sherman. Although appellant presented defensive evidence that he did not “move” from the Bonham address, the jury, as trier of fact, was not required to believe that evidence. Moreover, that appellant was a student does not necessarily establish appellant did not move from the Bonham address. Viewing the evidence in the light most favorable to the prosecution, we conclude the evidence is legally sufficient to support appellant's conviction. We resolve the fourth issue against appellant.
        We now turn to appellant's second issue complaining of the trial court's exclusion of evidence. The evidence consisted of defense counsel's testimony concerning whether he had told the prosecutor before trial that appellant was a student and still lived with his parents. The evidence was presented to respond to the following evidence the prosecutor elicited while cross-examining appellant:
                [Prosecutor]:
 
Why didn't you tell the officer that you were just going to school here?
 
                [Appellant]:
 
I didn't feel - I didn't - I just didn't think about it.
 
                [Prosecutor]
 
You didn't know you needed to is what you told the jury. You didn't feel you needed to. Okay. Why didn't you tell somebody in my office that that was the reason that you had a different address because you were a student here?
 
                [Defense Counsel]:
 
I'm going to object, Your Honor. He's not under a duty to, and it certainly invades the attorney-client privilege. He was represented by counsel at all times when the county attorney's office was involved in this case.
 
                [Trial Court]:
 
Overruled.
 
                [Appellant]:
 
Could you repeat the question?
 
                [Prosecutor]:
 
Why didn't you tell anybody, me or anybody from my office, that that was the reason why you had a different address.
 
                [Appellant]:
 
Well, before the court I didn't know you, ma'am. I didn't know anybody in this office.
 
                [Prosecutor]:
 
But you had seen me in court a couple of times. We've had some pretrial hearings; have we not?
 
                [Appellant]:
 
We have.
 
        The prosecutor's questioning left the jury with the impression that the prosecutor was surprised by evidence appellant was a student. It further suggested appellant, a criminal defendant represented by counsel, should somehow have personally communicated this information to the prosecution. This questioning undercut appellant's defense in that it implied the defense was fabricated.
        Appellant's trial counsel then called himself to the stand. After being sworn, appellant's trial counsel stated that, as appellant's attorney, it was his responsibility to discuss the case with the prosecutor and that he did personally tell the prosecutor, at least twice, that appellant was a student and appellant had not moved from his parents' residence. The prosecutor then told the trial court that she disputed trial counsel's recitation. After taking a recess, the trial court struck trial counsel's testimony and instructed the jury to disregard.
        We review a trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (op. on reh'g). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principals. Id. at 380. That is, whether the act was arbitrary or unreasonable. Id.
        All relevant evidence is admissible except as otherwise provided by Constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402. Evidence which is not relevant is not admissible. Id. Evidence is relevant if it logically makes elemental facts, such as intent or knowledge, more or less probable, or if it makes the defense's evidence, attempting to undermine these elemental facts, more or less probable. Montgomery, 810 S.W.2d at 387-88. Evidence that is otherwise inadmissible may be admitted to correct a false impression left by the questioning of a witness. Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002); Miller v. State, 196 S.W.3d 256, 270 (Tex. App.-Fort Worth 2006, pet. ref'd).
        The question we must first decide is whether evidence that appellant's trial attorney had told the prosecutor that appellant was a student was relevant. Before appellant proffered this evidence, the prosecutor attempted to suggest to the jury that appellant's defensive evidence - that he was a student and that he never “moved” from his parents' residence in Bonham - was not credible because appellant had never communicated this fact to the prosecutor. We conclude evidence that appellant's attorney, the appropriate person for communicating such information to the prosecutor, had given the prosecutor this information became relevant to rebut the State's suggestion. Thus, the only remaining issue is whether such evidence is otherwise excluded by Constitution, by statute, by the rules of evidence or other rules prescribed pursuant to statutory authority. See Tex. R. Evid. 402.
        The State's only argument for exclusion of otherwise relevant evidence is that it would be improper for appellant's attorney to take on the dual role of attorney-witness. The rule preventing an attorney from being a witness is a disciplinary rule. See Tex. Disciplinary R. Prof'L Conduct 3.08. The proper remedy for such a violation would be disqualification of appellant's attorney. See Gonzalez v. State, 117 S.W.3d 831, 845-46 (Tex. Crim. App. 2003). In this case, creation of trial counsel's “dual role” was of the prosecutor's own making. Irrespective of whether disqualification may have been required, we conclude the “dual role” problem cannot be utilized to prevent appellant from presenting his defense. Based on the unique facts of this case, and the prosecutor's unorthodox questioning of appellant, we conclude the trial court abused its discretion in excluding appellant's attorney's testimony.
        We now turn to whether appellant suffered any harm. Rule 44.2(b) provides that any non-constitutional error which does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission or exclusion of evidence “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). However, if the reviewing court harbors “grave doubts” that an error did not affect the outcome, the court must treat the error as if it did. Webb v. State, 36 S.W.3d 164, 182 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In determining harm, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla, 78 S.W.3d at 355; Delapaz v. State, 228 S.W.3d 183, 202 (Tex. App.-Dallas 2007, pet. ref'd).
        The State's case was not particularly strong. Officer Smith admitted that a person can have more than one address and that if he were aware that appellant was a student, he would not have ticketed him for failing to change his address. He acknowledged he had no reason to doubt appellant actually was a student at the time he ticketed him. Appellant's defensive evidence showed he was a student and continued to use his parents' house as his permanent address. He received mail at his parents' home and in particular used that address as his permanent address for Grayson County College and the IRS.
        Although appellant's defensive evidence was virtually unchallenged, the trial court permitted the State to suggest the defense was fabricated because he had failed to inform the prosecutor before trial of his theory. The trial court would not then allow appellant to respond to the State's suggestion with testimony that his attorney had informed the prosecutor of his defensive evidence. After reviewing the entire record, we are left with grave doubt over whether the error effected the outcome. Therefore, we resolve the second issue in appellant's favor. Because of our disposition of this issue, we need not reach appellant's remaining issues.
        We reverse appellant's conviction and remand this case to the trial court.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070780F.U05