Finney, Larry Eugene v. The State of TexasAppeal from Criminal District Court No. 7 of Dallas County (memorandum opinion )

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MODIFY, REFOR1 1, and AFFIRM; and Opinion Filed July 8. 2013. In [lie (!tntrt of A4iiI1 .Fif1l! Jii1rtct of exao zi il1a No. 05-12-00057-CR No, 05- 12-00058-CR LARRY EUGENE FINNEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause Nos. F09-41136-Y and F11-00250-Y MEMORANDUM OPINION Before Justices O Neill, Francis, and Fillmore Opinion by Justice O Neill A jury convicted appellant Larry Eugene Finney of aggravated assault of a public servant with a deadly weapon (cause number F09-41136-Y) and evading arrest or detention (cause number Fl l-00250-Y). He was sentenced in each case to seventy-five years imprisonment. On appeal, he challenges the trial court s admission of an extraneous offense and the court-ordered payment of attorney s fees. We modify the judgment in cause number F09-41 136-Y to delete the court-ordered attorney s fees, but in all other respects, affirm the trial court s judgments. Factual Background On August 7, 2009, Officer Daniel Hargrove was working off-duty as a security officer for the Starplex movie theater in Mesquite, Texas. He observed a car parked near the ticket booth blaring loud music. He motioned to the driver to turn down the music. Officer Hargrove approached the car and told appellant he was parked in a fire lane and needed to move. At that time, Officer Hargrove noticed a faint smell of marijuana coming from the car. Officer Hargrove testified that as he looked inside the vehicle, appellant began to get agitated and said, I m just going to get out of here, man, I m just going to leave, Officer Hargrove said that in his experience this indicated appellant had something to hide, or he had a warrant out for his arrest. Officer Hargrove asked appellant for his car keys several times. Rather than cooperate, appellant began reaching between the car seats. Officer Hargrove thought appellant was trying to grab a weapon or something else that could cause injury. He testified he believed he had two options: (I) draw his weapon, drop back, and try to protect the other movie goers from potential danger or (2) physically grab appellant and prevent him from grabbing whatever he was reaching for. Officer Hargrove decided to grab appellant. Appellant hit Officer Hargrove in the face with what he described as a big piece of metaL Then the car started moving with Officer Hargrove s body still partially inside the window, He did not think the car went further than ten feet before appellant hit his arm and caused him to fall to the concrete. The fall caused Officer Hargrove s head to bleed. He required medical attention to treat a malar fracture to his eye, a hairline fracture to his collarbone, and a torn rotator cuff. Officer John Nance received the officer-in-distress call on the night in question and began searching in the direction appellant fled from the movie theater. He spotted appellant s car and began pursuit. Appellant eventually exited his car and proceeded to rnn on foot. Officer Nance lost sight of appellant, but other officers in the area eventually found appellant hiding under a tarp. When officers detained him, they discovered three baggies of marijuana in his left cargo pants pocket. When appellant s car was later searched, marijuana was found in the trunk, in the 2 door behind the drivers seat, and in the driver s seat. discovered some In the glove compartment, ofTicers documents. hooks. a digital scale, and a camera. i-\ppellant was arrested and charged with aggravated assault ol a public servant with a deadly weapon (cause number F0Q 411 36Y) and evading arrest or detent ion (cause number Fl 1 00250Y ). Before trial, appellant filed a motion to suppress the marijuana found on his person and in his car, The trial court overruled the motion and ruled the marijuana evidence will be admitted into this case as inextricably intertwined with the offense. The trial court further noted that even if the evidence was not inextricably intertwined, it would also admit it under Rule 404(b), perform the required halancing test under Beeclinin, find it s more probative than prejudicial and believe that it goes to show plan and motive ftr evasion and so lorth. The jury found appellant guilty of each charged offense and sentenced him to seventy five years confinement for each offense. The trial court assessed $200in attorney s fees as part of court costs in cause number F09-41 I 36-Y. This appeal followed. Admission of Extraneous Offense Evidence In his first issue, appellant argues the trial court abused its discretion by admitting testimony regarding the possession of marijuana on his person and in his car. He asserts the testimony was irrelevant and unnecessary to the jury s understanding of the charged offenses, and its probative value was substantially outweighed by its prejudicial impact. The State first responds appellant waived his argument, but even if he preserved it, the evidence is patently same transaction contextual evidence, evidence of motive to evade detention, and intent to evade detention. We review rulings on the admissibility of evidence under an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We will conclude a trial court abused its discretion if its ruling lies outside the zone of reasonable disagreement. Id. 3 The State irst argues appellant laded to preserve his issue br review because defense counsels request for a running objection to the introduction of the marijuana evidence did not include counsel s catchall 401. 403, and 404(b) objections. Therefore, the State contends appellant waived his argument when he failed to object during trial to Detective Hargrove s and Officer Nance s testimony. The following exchange occurred during the motion to suppress hearing: I Delense counsel I: Just as it relates to the Court s ru1ing -can I have a running objection to the or objection to any marijuana that may he introduced or any testimony that relates to the marijuana that was found on his person and found in the vehicle. And we would object under 401 and 403 and also 404(b), Your Honor. The Court: Okay. The request for a running objection is granted. All other objections are overruled, We cannot agree with the State that the record clearly indicates appellant s running objection did not include the catch-all objections. Rather, one could read the exchange to mean defense counsel was emphasizing that his request for a running objection was based on rules 401, 403, and 403(b). This interpretation is also supported by the trial court s prior statement that the marijuana was admitted as inextricably intertwined with the offense. The court s statement overruling all other objections could likewise refer to defense counsel s previous arguments regarding the lack of probable cause to support the search warrant for appellant s vehicle. Because the record does not clearly support waiver, we reject the State s argument. Therefore, we shall address the merits of appellant s complaint. Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. Tux. R. EvID. 404(b). Under certain circumstances, evidence may provide same transaction contextual evidence. Same transaction contextual evidence refers to those events and circumstances that are intertwined, -4- nseparahle lJrts of an event that, if viewed in isolation, would make no sense at all. See i)elgado v. State, 235 S,W3d 244, 253 (Tex, Crim. App. 2007); Thomas e. State, No. 05-0700266-CR, 2008 WL 3906393, at *4 (Tex, App. Dallas Nov. 19, 2008, pet. rerd) (not designated for publication). Such evidence is admitted to show the context in which the crime occurred under the reasoning thai events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so they may realistically evaluate the evidence. t)elgado, 235 S.W.3d at 253 n.36 (citing Alhrecht i . State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972)). however, only if the facts and circumstances of the instant olfense would make little or no sense without also bringing in the same transaction contextual evidence should that evidence be admitted. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Courts have applied a two-part test in determining the admissibility of same transaction contextual evidence. See Maves v.State. 816 S.W.2d 79, 84 87 (Tex. Crim. App. 1991). The first step is determining whether the presence of marijuana on appellant s person and in his car is relevant under rule of evidence 401. Id. at 85; see also Rogers, 853 S.W.2d at 32 (Tex. Crim. App. 1993). Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would he without the evidence. TEx. R. EVID. 401. Appellant argues the relevancy of the marijuana to the offenses of evading arrest or aggravated assault of a public servant with a deadly weapon is negligible, and his possession of marijuana does not make it more probable he would commit the offenses. We disagree. Appellant s possession of an illegal substance explains his possible motive for hitting Detective Hargrove and then fleeing the scene before the drugs could be found on him or inside his car. 5 See. e. Pe1 rvo,, v.Suiie. 36 SW2d 760. Th2 (Tex. App. concludin the trial court (lid iiot abuse its discretion El Paso I)92, pet. ref d> by admitting evidence of marijuana, a pistol, and ammunition because ii was relevant to show why the delendant assaulted an officer); Maughter v. State, No. l4M500863CR, 2006 WL 2805564, at *3 (Tex, App. Houston 114th Dist.{ Oct. 3, 2006. no pet) (niem. op., not designated for publication) (noting evidence of illegal drug possession helps prove why the defendant intentionally Fled from an officer and is therefore relevant evidence). Thus, the trial court acted within the zone of reasonable disagreement by determining the evidence was relevant. The liexi step in the 1wopart test is to determine whether the background evidence at issue is admissible as an exception under rule of evidence 404(b). Rogers, 853 S,W.2d at 33. Admission of same transaction contextual evidence is such an exception. Id. Appellant argues the marijuana evidence was not necessary to the jury s understanding of the charged offenses, and the State could have simply avoided describing the discovery of the drugs. We disagree. Here, appellant was not acting suspiciously until Detective Hargrove moved closer to the driver s side window, detected a faint smell of marijuana, and began glancing at the steering column, the floorboards, and the backseat of the car, Detective 1-largrove testified appellant began to get real defensive as he was looking inside the car and told Detective Kargrove, I m just going to leave. Detective I-largrove felt appellant was trying to hide something. It was shortly thereafter that appellant began reaching for something in between the seats, and Detective Hargrove felt he needed to protect himself and the bystanders outside the theater. Appellant s reaction to hit Detective Hargrove with an unknown object and drive away is further indication he did not want the marijuana found. Appellant s behavior provided a possible motive and intent for him to assault an officer and flee the scene. Evidence of an extraneous offense 6 vli ich shows an accused s inot ive or intent is admissible, ftx. R. hv in, 404(b): ec Peterson, $36 SW,2d at 762. Thus, the introduction of the marijuana evidence was admissible same transaction contextual evidence because the events and circumstances were clearly intertwined, inseparable parts of the charged offenses that. if viewed in isolation, would not make sense, See Delgado v. Stoic . 235 S.W.3d at 253 .And as coutis have recognized. events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission ol that act so they may realistically evaluate the evidence. 1(1. at 253 n.36. Accordingly, the trial court did not abuse its discretion by admitting the evidence. Appellant s first issue is overruled, Court-Ordered Attorney s Fees In his second issue, appellant argues the trial court erred by assessing $200in courtappointed attorney s fees in cause number F09-41 136-Y. Specifically, he claims the trial court twice made a finding of indigency before trial and again after trial, which resulted in him receiving court-appointed attorneys for trial and on appeal. Because there has been no material change in appellant s circumstances since his incarceration, he argues the evidence is insufficient to support an assessment of attorney s fees. The State responds appellant presumes the abbreviation APAT on the criminal court fee docket sheet means attorney s fees, but it asserts that without further evidence, this Court may not presume the meaning of the abbreviation. Therefore, the State argues the $200in fees must stand. We disagree with the State. Under Texas Code of Criminal Procedure article 26.05, a trial court may order a convicted defendant to pay the attorney s fees of his appointed attorney as costs [i]f the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided. TEx. CoDE CRIM. PROC. ANN. art. 26.05(a), (g) (West 7 Supp. 2012). It the trial [IC court has previously determined that the deleiidant is indigent, however. is presumed to remain indigent tor the remainder of the proceedings in the case unless a material chanee in the delendant s financial circumstances occurs. Id. art. 2.04( p). lhe State doeS not dispute appellant s m(ligency. but instead relies on the alleged insufficiency of the evidence to support the conclusion that APAT is an abbreviation for appointed attorney on the criminal court fte docket sheet. Considering the State has conceded in a previous case that APAT stands for appointed attorney, we will not allow it to now take a different position simply because we have nothing in the record before us explaining the meaning of APAT. See, e.g., Garza i . Slate. No. 05-1 1-01626-CR, 2013 WL 1683612, at *1 n. 1 (Tex. App.--- Dallas Apr. 18, 2013. no pet.) (mern. op.. not designated for publicalion) (noting parties agreed that APAT stands for appointed attorney ). Moreover, nothing in the record indicates a material change in appellant s financial circumstances. Accordingly, the evidence is insufficient to support the trial court s assessment of $200in attorney s fees as part of appellant s couil costs. We therefore sustain appellant s second issue and modify the judgment in cause number F09-4l 136-Y to delete the amount of $200assessed as attorney s fees. Conclusion After considering appellant s issues, we modify the judgment in cause number F0941 136-Y to delete the $200in court-ordered attorney s fees, but in all other respects, affirm the trial court s judgments. /Michael J. O Neill! MICHAEL J. O NEILL JUSTICE Do Not Publish TEx. R. App. P. 47 12005 7F.U05 8 ft 1 ( Z\ Q!niirt ni Anah .ifiIi ithitrirt uf t1 Jatta JUDGMENT LARRY EUGENE FINNEY, Appellant No. 05-12-00057-CR On Appeal from the Criminal District Court No. 7, Dallas County, Texas Trial Court Cause No. F09-41 136-Y. Opinion delivered by Justice O Neill, Justices Francis and Fillmore participating. V. THE STATE OF TEXAS. Appellee 10 Based on the Court s opinion of this date, the judgment of the trial court is MODIFIED delete $200.00 in court-ordered attorney s fees. As REFORMED, the judgment is AFFIRMED. Judgment entered this day of July. 2013. /Michael J. O Neill! MICHAELJ. O NEILL JUSTICE 9 Qtiurt Df Appaah Fift1! Jitrirt of ixa Lit t1a11a JUDGMENT LARRY EUGENE FINNEY, Appellant On Appeal from the Criminal District Court No, 7, Dallas County, Texas Trial Court Cause No. Fl 1-00250-Y. Opinion delivered by Justice ONeill, Justices Francis and Fillmore participating. No. 05-1 2-00058-CR THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is AFFIRi\IED. Judgment entered this Ih 8 clay of July, 2013. /Michael J. O Neill! MICHAEL J. O NEILL JUSTICE 10

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