Procella, Phillip Rogers v. The State of Texas--Appeal from 203rd Judicial District Court of Dallas County (opinion )
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MODIFY and AFFIRM; Opinion issued January 17. 2013. In The (Cmirt uf pcahi FiftI! tHtrirt uf rxa at Litta No. 05-11-01290-CR No. 05-11-01291-CR PHILLIP ROGERS PROCELLA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 203rd Judicial District Court I)allas County, Texas Trial Court Cause Nos. F10-5 1420-P & F10-54196-P OPINION Before Justices Murphy and Richter 1 Opinion By Justice Murphy Phillip Rogers Procella pleaded not guilty to one count of possession with the intent to deliver between four and 200 grams of cocaine with a deadly weapon in a drug-free zone and one count of aggravated assault against a public servant with a deadly weapon. See TEx. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010); id. § 481.134(c) (West Supp. 2012); TEx. PENAL CODE ANN. § 22.02(a)(2), (h)(2)(B) (West 2011). After the jury returned a guilty verdict on both counts, the trial court sentenced Procella to two concurrent terms of forty years in prison. In two The Honorable Martin E. Richter. Retired Justice, silting by assignment, The Honorable Joseph Morris was on the panel and participated at the submission of this case. Due to his retirement from this Court on December31, 2012, he did not participate in the issuance of this Opinion See TL.x. R. APP. P.41.1(a), (h). points of error. Procella contends the trial court abused its discretion by allowing one of the State s witnesses to testify as an expert witness and by admitting photographs showing another persons tattoos during the punishment phase of trial. In two additional points ol error, Procella asserts the judgment in each case should be modified to reflect that the trial court assessed his punishment. We modify the trial court s judgments as requested and affirm the udgmcnis as moditied. I. Admission of Expert Witness Testimony Procellas first point of error relates only to the drug possession case (No. 05 1 1 -01 290 C RL Procella complains the trial court erred by admitting the testimony of Joel Wasinger because he was not qualified to testify as an expert about whether the offense occurred within a drug tree zone. We review a trial court s ruling on the admissibility of expert testimony br an abuse of discretion. Ti//mw, v. State, 354 S.W.3d 425,435 (Tex. Crim. App. 2011); Cob/c v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). As with other types of evidentiary rulings, we will uphold the trial court s decision as long as it lies within the zone of reasonable disagreement. Til/man, 354 S.W.3d at 435. A. Background As charged in the indictment, the State was required to prove Procella committed the possession offense within a drug-free zone that is, within 1,000 feet of any real property that is owned, rented or leased to a school. specifically James Bowie Elementary School. Proof of the drug-free zone allegation triggers application of health and safety code subsection 481.134(c), which increases the minimum punishment for the offense by five years and doubles the maximum fine. See TEX. HEALTH & SAFETY CODE ANN. § 481. 134(c). Subsection 481 .134(c) does not create a separate offense; its only effect is to raise the penalty when an enumerated olfense is committed in a designated place. See Willianis i. State, 127 S.W.3d 442. 445 (Tex. App. Dallas 2004, pet. rcf d). 2 As part of its proof that the offense took place within a drugfree zone, the State offered es.hihit 19A, a map of the area. which was admitted through another witness without objection. The exhibit wa an aerial photograph showin1 the Iocaton of the oliense at 6 I I N. Marsal is Avenue outlined in yellow, the location of Bowie Elementary School at 330 N. Marsalis Avenue outlined in green. and a red perimeter line drawn out from the school premises: the location of the olfense was depicted on the exhibit as within the perimeter. The map included a scale, showing that a one inch measurement was the equivalent of a distance of 100 feet. The State also 1 the testimony of Wasinger. the geographic information systems )resented coordinator for Dallas County Public Works. At a hearing held outside the presence of the jury, Wasinger testihed his job involves making maps, analyzing geographic data, and managing geographic-related databases. lie stated he (lid not prepare the drug- free zone map for this case. but he explained how such maps are created using data from the county appraisal district and mapping software. Procella objected to Wasinger s proposed testimony, arguing Wasinger should not be allowed to give opinion testimony because there was no showing of sufficient background. training. Ion preparation for this witness to be held as an expert. He also argued that Wasinger should not he allowed to testify because we do not have betbre us the people that set this up, put in play and prepare(l for court. The trial court oven uled the objection and allowed Wasinger s testimony to be presented to the jury. During his testimony, Wasinger referred to exhibit 49A and testified that the red perimeter line on the exhibit represented a thousand-foot boundary. 1-Ic explained that the perimeter was a product of taking the parcel in the middle, the elementary school, and telling the [mapping j software we want to go a thousand feet in all directions around it and {the softwarej draws a line. Wasinger then simply testified that anything inside the boundary line was within 1 .000 feet of any property 3 owned by that school. The jury found by special issue that Procella committed the drug of tense w jib in I ,1 )0() feet ol a school. B Analysis In ruling on the admissibility of expert testimony, a trial court must determine that (1) the expert is qualified as an expert by reason of his knowledge. skill, experience, traimng. or education; (2) the subject matter of the testimony is an appropriate one for expert testimony: and (3) admitting the expert testimony will assist the factfinder in deciding the case. S e Tux. R. EvID. 702; VeIn v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). These conditions are commonly referred to as qualification, reliability, and relevance, VeIn. 209 S.W.3d at 131. The conditions raise distinct questions and issues, and an objection based on one of the conditions does not preserve error as to another .See Id. (stating qualifications of expert witness are distinct from reliability and relevance and, therefore, should he evaluated independently ); Sliaw v. State, 329 S.W.3d 645, 655 (Tex. App. Houston 114th Dist.j 2010. pet. ref d): Turner i . Slate. 252 S.W.3d 571. 584 n.5 (Tex. App. Houston 114th I)ist. I 2008. pet. rcf d) (objection based on expert s qualifications did not preserve reliability issue). Procella argues on appeal that the trial court abused its discretion by allowing Wasinger to testify as an expert about the drug-free zone because the trial court failed to conduct a proper inquiry into whether Wasinger had the necessary qualifications. He also raises an additional argument about the reliability of Wasinger s expert opinion, arguing there was no testimony to establish that the data behind the drug-free zone map was accurate. But the reliability of Wasinger s opinion based on the data behind the map was not raised to the trial court: rather Procella s objection covered qualification only. Procella s reliability complaint therefore was not preserved for our review. See TEx. R. App. P.33.1(a); Vela. 209 S.W.3d at 131; Turner, 252 S.W.3d at 584 n.5. -4- Regarding his complaint about Wasinger s qualifications. Procella asserts there was very ittl iiiquii S lillo his hR Lu mmd itid Ii niling oi iii it V islngel s b tLLgl ound ss is cenhi ii to (hR drug-free zone map evidence, The State responds that the trial court properly exercised its discretion hecause Wasinger adequately explained his specialized experience with maps and mapmaking of this type. The State also asserts that because GIS measuring techniques are known to the courts to he widely used and are generally considered sufficiently reliable in foundation it is questionable whether Wasinger was required to testify as an expert Although the State cites no Texas case for iii is proposition, we will assume expert testimony was required to assist the jury in understanding the drug-free zone map. our opinion, however, should not be construed as a determination on the merits of whether expert testimony is required to show an offense occurred within a drug-free zone. See, e.g., TEx. HEALTH & SAFETY CODE ANN. § 481 .135(d)(i), (2) (State may rely on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 481.134, including using or introducing a map or diagram admissible un(ler the rules of evidence): Youn,ç r. State. 14 S.W.3d 748.754 (Tex. Crim. App. 2000) (concluding maps produced by city planning department and officer testimony was sufficient forjury to find offenses occurred within zone; maps were probative proof of drug-free zone boundaries); Perez r. Staie, 332 S.W.3d 700. 703 04 (Tex. App. Amarillo 2011. pet. ref d) (satellite photo depicting area and testimony of engineer and officers that offense took place within drug-free zone); Haagensen v. State, 346 S.W.3d 758, 764 65 (Tex. App. Texarkana 201 1. no pet.) (officer testimony that drug transaction occurred within zone based on map obtained from city hail and by using Google Earth). Under rule 702, a person may be qualified to testify as an expert by knowledge, skill, experience. training, or education. mx. R. EvID. 702. The qualification inquiry involves two parts: whether the witness has a sufficient backruuiid in a particular I ield and whether that background goes to the very matter on which he will give an opmion. Vela, 209 S,W.3d at 131. Because the possible spectrum of education. skill. and training is so wide, a trial court has great discretion in determining whether a witness POSSeSSeS sufficient qualifications to assist the jury as an expert on a specihc topic in a particular case. Rodgers, 205 S.W.3d at 527 28. The focus is on the lit between the subject matter at issue and the expert s familiarity with it. ¼ Ia, 209 S.W.3d at 133. Was inger testified regarding his background that he has been in the GIS industry for twenty wars and has spent most of those twenty years analyzing geographic data. He began his career working for a software company that manufactured a GIS application. He also has taken independent courses in (]IS and computer science. Wasinger testified he has made several drug-free zone maps like exhibit 49A. stating lilt s something that any of us can do. He also described the map-making process, explaining that a drug-free zone map is created on a computer by overlaying Cartesian planes of latitude and longitude and using plot lines maintained by the county appraisal district. He described it as a simple process. He explained that either he or one of the other GIS technicians takes the two locations in question. With the school as the center point, and using the mapping software, a thousand-foot perimeter is drawn around the lines for that piece of property. The location of the crime then is indicated on the map to see if it lies within the thousand-foot perimeter. Regarding his specific opinion in this case, Wasinger testified that the distance from the school grounds to the location of the offense was less than a thousand feet. Wasinger s familiarity with the mapping software and how drug-free zone maps are created using the software put context to exhibit 49A. Based on his review of the map, he testified the offense occurred within the drug-free zone. We conclude the trial court acted within the zone of reasonable disagreement in determining that Wasinger s training, education, and experience 6 regarding nmpinaking and anal viing C IS data qual i lied him to offcr the opinion that Procella committed the dmg offense within the drug free zone. Although Procella, on appeal, crIticizes the accuracy of the underlyini data from which the map was produced. this is 1101 a valid ohjection to Wasinger s qualifications. Importantly, Procella did not object to the admission of the map at trial. Accordingly, we overrule Procella s lirsi point ol error. IL Admission of Photographs Procella argues in his second point of error, which relates to both cases, that the trial court abused its discretion when it admitted three exhibits during the punishment phase of trial. The challenged exhibits are State s exhibits 76. 77. and 78, which are photographs of gang-related tattoos on another person, Keithian Brown, who was found with Procella at the scene of the offenses and also arrested. The photographs of Brown s tattoos were taken during his interview with a police detective shortly after he was arrested. Exhibit 76 showed a tattoo on Brown s back depicting the words Rolling 60s : exhibit 77 showed a second tattoo on what appears to be Brown s arm with the initials RSC presented in Old English script: exhibit 78 is too dark to discern a particular tattoo, and there was no specific testinlony describing that tattoo. Detective Barrett Nelson, who had spent fourteen years working with the gang unit of the Dallas Police Depamirnent, testified that the tattoos shown in the photographs represented a criminal street gang called the Rolling 60 Crips based in the southern Oak Cliff area of Dallas. Procella objected, based on relevance, to the admission of the photographs and to any testimony about Brown. The trial court overruled Procella s objections and stated that it would only consider the relevant portions of the photographs and not consider the testimony if it was not linked to Mr. Procella in any way. Procella argues on appeal that photographs of Brown s tattoos have no bearing on his cases 7 and the State was attempt ilig to puwe he a gang member through the pictures ol gang tattoos as on another person. He further claims that his forty-year sentence indicates he was ultimately pumshed flr I3rown s had character, We need not decide, however, whether admission of the photographs of Brown s tattoos during the punishment phase was error. Even assuming any error occurred. we conclude such error did not affect Procella s substantial rihts and would have provided nothing more than a slight influence on the trial court s punishment determination, if any influence at all, See TEX, R. App. P. 44.2(b) (providing we must disregard any error, defect. irregularity, or variance that does not affect substantial rights ). The record before us shows that Procella s membership in a gang, and specifically. the Rolling 6() Crips, was not proven through the pictures of Brown s gang tattoos. Rather, testimony was admitted without objection to Procella s own affiliation with the Rolling 60 Crips. Nelson explained during his testimony the various criteria, including self-admission and tattoos, police use to determine whether someone is a member of a gang. Nelson testified that tattoos found on members of the Rolling 60s are very prevalent. When asked to look at the tattoo of a 60 on the side of Procella s head. Nelson identified that tattoo as being very consistent with the Rolling 60 Crips. 1-Ic added, lylou re not gonna put a 60 on the side of your head unless you re promoting a gang.... To see that, that s self-admission itself. Procella got that tattoo while in jail after being arrested for these offenses. Nelson also testified about the gang s criminal activities, which include narcotics, aggravated assault, murders, and car thefts, and provided general testimony about gang affiliation and the relationship between gang affiliation and drug dealing: he testified Itihat s how gangs survive; they sell narcotics and rob people. Contrary to Procella s assertions that the Stale focused almost solely on Brown s gang tattoos, Nelson s testimony was not specific to Brown s acts or character or otherwise linked to Brown. 8 Procella (li(i not oblect to Nelson s testimony related to the 60 tattoo on his head or Nelson s identification of that tattoo as being consistent with membership in the Rolling 60 Crips. In closing, Procella s counsel agreed that the I g lang niemhership is not good. Nor did Procella object to Nelson s general testimony related to the criminal activities of the RoIling 60 Crips or the importance of gang life to drug dealing. Under article 37.07 of the Texas Code of Criminal Procedure, a trial court has broad discretion to admit evidence the court (leems relevant to sentencing, including evidence of prior crimes, reputation, character, or the circumstance of the ollense. Tux. CouECRIM. PROc. ANN. art. 37.07 3(a)( I) (West Supp. 2012): Hayden i . State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009), Evidence of membership in or affiliation with a gang, such as the Rolling 60 Crips, would fall under the type of bad acts relevant to sentencing, and article 37.07 allows the introduction of such evidence to show the defendant s character. See Beaslev v, State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); Sierra v. State, 266 S.W.3d 72. 79 (Tec App. Houston jI st Dist.I 2008. pet. ref d); see also Ho L.StQte, 171 S.W.3d 295.305 (Tex. App. l-louston 114th Dist. 2005, pet. ref d) ( Even if appellant was no longer affiliated with the gang at the time of the shooting. evidence that he was a gang member is relevant and thus admissible at punishment because it relates to his character. ). The trial court had before it evidence of Procella s own gang membership and evidence of that gang s character and reputation. as well as other testimony, upon which to base its punishment determination. See Doris i . State, 329 S.W.3d 798, 805 (Tex. Crim. App. 2010); Beasley, 902 S.W.2d at 456 57 ( evidence concerning appellant s gang membership is relevant because it relates to his character and noting that it is not necessary to link the accused to the bad acts generally engaged in by gang members). ThUS. even if it was error to admit the photographs showing tattoos on another person, we conclude that error did not have a substantial effect or otherwise influence the 9 1 na! cc nut s decision about the appropriate punishment for Procella. We overrule Procella s second p( )iflt Of CII . r. III. Modification of the Judgments in ii is two remaining points ol error. Proud Ia asks this Court to modify the trial court s written judgments to reflect that the trial court, not the jury. assessed Procella s punishment in each case. The State agrees the judgments should be modified in the manner Procella requests. The judgment in each case incorrectly recites that Procella s punishment was assessed by the Jury. The clerk s record for each case, however, contains an election of punishment. in which Procella requests that the judge assess his punishment in the event the jury finds him guilty. In addition, the reporter s record shows that the trial court asked Procella if he understood that he elected to have the judge set punishment rather than the jury; Procella indicated he understood his election. This Court has the power to correct a clerical error on a judgment to reflect what occurred in the trial court. as shown by the record. See TEX. R. Api. P. 43.2(b); Biglev v.Staie, 865 S.W.2d 26. 27 28 (Tex. Crim. App. 1993: Asberrv i.. State. 813 S.W.2d 526. 529 (Tex. App. Dallas 1991, pet. ref d) (en hanc). We therefore sustain Procella s third and fourth points of error and modify the judgment in each case to reflect that Procella s punishment was assessed by the trial court. We affirm the trial court s judgments as modified. / I I .1 / MARY MPHY JUSTICE Do Not Publish TEx. R. App. P.47 11 1290F.U05 10 I.I I i. (J !Initrt ni Fi1tI! Ditrir1 nf axa at 1tlla JUDGMENT PHILLJP ROGERS PROCELLA, Appellant No. 05 I 10I 290CR V. THE STATE OF TEXAS. Appellee Based on the Court s follows: opinion Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10-5 l420P). Opinion (lelivered by Justice Murphy, Justice Richter participating. of this date, the trial court s judgment is NiOI)IFIEI) as The Punishmem Assessed by is modified to read: Court. As modified, the judgment of the trial court is AFFIRMED. Judgment entered January 17, 2013. MARY MPHY JUSTICE I Qtnirl if ia15 *iftli Jistrirt uf Lixu it tI11tai?i JUDGMENT PHILII P ROGERS PROCELLA, Appellant No. 051 L0l291CR V. TIlE STATE OF TEXAS, Appellee Appeal from the 203rd Judicial District Court of Dallas County, Texas. (TrCLNo. Fl054l96P). Opinion delivered by Just ice Murphy. Justice Richter participating. Based on the Court s opinion of this date. the trial Courts judgment is MOflIFIED as follows: The I->unishment Assessed by is modified to read: Court. As modified, the judgment of the trial court is AFFIRMED. Judgment entered January 17, 2013. , I / MARY MUHY v JUSTICE ( 1 J
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