Kendrick Marcel Overton v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00036-CR

Kendrick Marcel Overton,

Appellant

v.

The State of Texas,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. 30147

MEMORANDUM Opinion

After Kendrick Marcel Overton pleaded guilty to possession of cocaine with intent to deliver, the court found him guilty, and a jury assessed his punishment at seventy-five years imprisonment and a $10,000 fine. Overton contends in three issues that the court abused its discretion by: (1) permitting a narcotics officer to offer expert testimony regarding the street value of cocaine; (2) permitting this officer to testify that narcotics dealers avoid Collin County because of the higher sentences typically imposed there in narcotics cases; and (3) admitting evidence that a loaded handgun was found in the trunk of the car he was riding in when arrested. We will affirm.

Expert Testimony

Overton contends in his first issue that the court abused its discretion by permitting a narcotics officer to offer expert testimony regarding the street value of cocaine. Overton s specific complaint is that the State failed to show that the officer had the requisite qualifications to provide expert testimony.

We review a trial court s ruling on the admissibility of evidence for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. The same standard applies when we consider a court s ruling on the admissibility of expert testimony. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006).

Before admitting expert testimony under Rule of Evidence 702, the trial court must be satisfied that: (1) the witness qualifies as an expert because of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006).

Here, Sergeant Michael Turner testified that he had been employed by the Department of Public Safety for twenty-four years at the time of trial.[1] He had spent a little more than nine years in the narcotics division. When he started in the narcotics division, he attended a four-week academy which focused on narcotics training and undercover work. In addition, he regularly participates in ongoing training in this field. He has participated in hundreds of drug investigations during his career and has made close to a thousand undercover drug buys.

Turner testified that on the occasion in question he and other officers established surveillance on Interstate 45 based on information that Overton had purchased a large quantity of cocaine in the Dallas area for distribution in Navarro County. He examined the three latex gloves filled with cocaine which had been removed from Overton s shorts when he was arrested and testified without objection that this is a common way for cocaine to be packaged. He testified, based on his experience (and without objection), that Overton had likely intended to take the 500 grams of powder cocaine seized from his shorts, convert it to crack cocaine, and then distribute it in the Corsicana area.

Overton objected to Turner s expert qualifications when the prosecutor asked him how much Overton had paid for the seized cocaine. The court asked the prosecutor to proffer testimony on Turner s qualifications. Turner testified that he has become familiar with the street value or wholesale value of drugs based on the drug schools he s attended and the drug buys he s done and that he is familiar with the value of cocaine in particular based on this training and experience. The court overruled Overton s objection. Turner testified that Overton likely paid about $9,000 for the one-half kilo of powder cocaine in his possession and that he could have grossed about $100,000 by converting it to crack cocaine and selling it in that form.

Texas courts have long held that officers with similar training and experience are qualified to provide expert testimony on various aspects of narcotics trafficking. See, e.g., Taylor v. State, 106 S.W.3d 827, 832-33 (Tex. App. Dallas 2003, no pet.); Williams v. State, 826 S.W.2d 783, 785 (Tex. App. Houston [14th Dist.] 1992, pet. ref d); Goodson v. State, 840 S.W.2d 469, 473-74 (Tex. App. Tyler 1991, pet. ref d); see also Holmes v. State, 135 S.W.3d 178, 182-84 (Tex. App. Waco 2004, no pet.) (blood spatter); DeLarue v. State, 102 S.W.3d 388, 396-97 (Tex. App. Houston [14th Dist.] 2003, pet. ref d) (accident reconstruction). Thus, we cannot say that the court abused its discretion by overruling Overton s objection to Turner s qualifications to provide expert testimony regarding the street value of cocaine. Accordingly, Overton s first issue is overruled.

Sentences in Collin County

Overton contends in his second issue that the court abused its discretion by permitting Turner to testify that narcotics dealers avoid Collin County because of the higher sentences typically imposed there in narcotics cases. Because Overton did not object to most of Turner s testimony on this subject, he contends that the admission of the testimony constitutes fundamental error.

After Turner testified about the street value of the cocaine, the prosecutor asked him about whether it was difficult to arrange drug buys in Collin County. Overton objected that the question called for speculation, was misleading, and was intended to taint the jury.[2] The court sustained the objection as to that question. Turner then testified without objection that narcotics dealers don t want to sell in Collin County because of the stiff sentences handed down by juries and that the dealers he s interacted with know where the Collin County line is.

Complaints regarding the admissibility of evidence do no present fundamental error. See Scott v. State, 167 S.W.3d 62, 66 (Tex. App. Waco 2005, pet. ref d). Accordingly, we overrule Overton s second issue.

Handgun Evidence

Overton contends in his third issue that the court abused its discretion by admitting evidence that a loaded handgun was found in the trunk of the car he was riding in when arrested.

Under article 37.07, section 3(a)(1) of the Code of Criminal Procedure, evidence may be admitted regarding any matter the court deems relevant to sentencing including evidence of the circumstances of the offense and evidence of any extraneous offense shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon 2006).

Despite the Legislature s use of the term relevant to describe evidence admissible during the punishment phase, the Court of Criminal Appeals has explained that the admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevance. Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). Determining what is relevant then should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Id. Under this standard, evidence may be admissible as a circumstance of the offense so long as that evidence has some bearing on the defendant s personal responsibility and moral guilt. Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex. Crim. App. 1991) (per curiam) (quotingMiller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990) (quoting Booth v. Maryland, 482 U.S. 496, 502, 107 S. Ct. 2529, 2533, 96 L. Ed. 2d 440 (1987)));[3] accord Jagaroo v. State, 180 S.W.3d 793, 798 (Tex. App. Houston [14th Dist.] 2005, pet. ref d); see also Rodriguez, 203 S.W.3d at 842 (noting that extraneous offenses committed by other parties to the offense were helpful to the jury in determining Appellant s moral blameworthiness ).

As stated, officers had Overton under surveillance. They stopped the car he was riding in because they knew he had outstanding traffic warrants. Over Overton s objection, one of the arresting officers testified that a loaded handgun was found in the trunk, and the handgun was admitted in evidence. However, Overton was not driving the car, and there is no evidence in the record that he had any ownership or possessory interest in the car. When overruling Overton s objection, the court commented that it was admitting the testimony as part of [the] res gestae of the offense.

The term res gestae is understood to refer to same transaction contextual evidence. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991); Moore v. State, 165 S.W.3d 118, 122 (Tex. App. Fort Worth 2005, no pet.); Carter v. State, 145 S.W.3d 702, 707 n.1 (Tex. App. Dallas 2004, pet. ref d). Same transaction contextual evidence refers to those events and circumstances that are intertwined, inseparable parts of an event that, if viewed in isolation, would make no sense at all. Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007).

Here, evidence of the handgun recovered from the trunk does not qualify under this test. See Peters v. State, 93 S.W.3d 347, 353 (Tex. App. Houston [14th Dist.] 2002, pet. ref d) (evidence of sawed-off shotgun found under bed in motel room where defendant arrested for possession of cocaine not admissible as same transaction contextual evidence ). It simply cannot be said that the evidence regarding Overton s possession of cocaine found in his immediate possession makes no sense without consideration of the fact that a handgun was recovered from the trunk.

Nor is there evidence providing sufficient affirmative links to connect Overton to the handgun recovered from the trunk. See Jenkins v. State, 76 S.W.3d 709, 715-19 (Tex. App. Corpus Christi 2002, pet. ref d) (evidence legally insufficient to support passenger s conviction for possession of marihuana found in trunk or possession of cocaine found under back seat due to lack of affirmative links). Other than Overton s presence in the car, there is no evidence connecting him to the handgun. Cf. id. at 715-18 (officer testified that amount of contraband seized was normally transported by more than one person and that such persons tended to travel with weapons ). Therefore, the evidence regarding the handgun is not admissible as same transaction contextual evidence or as an extraneous offense. Because there is scant evidence connecting the handgun to Overton, the evidence likewise has no bearing on Overton s personal responsibility and moral guilt. Thus, the evidence is not admissible as a circumstance of the offense under article 37.07, section 3(a)(1). For these reasons, the court abused its discretion by admitting the evidence regarding the handgun.

We must now determine whether this error requires reversal. The improper admission of evidence of an extraneous offense is non-constitutional error. Carter, 145 S.W.3d at 710; Peters, 93 S.W.3d at 354. Thus, we ask whether this error affected Overton s substantial rights. See Tex. R. App. P. 44.2(b). 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, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Shook v. State, 172 S.W.3d 36, 41 (Tex. App. Waco 2005, no pet.); accord Geuder v. State, 142 S.W.3d 372, 376 (Tex. App. Houston [14th Dist.] 2004, pet. ref d). We may also consider the jury instructions, the State s theory of the case, any defensive theories, closing arguments, voir dire, and the extent to which the State emphasized the erroneously admitted evidence. See Motilla, 78 S.W.3d at 355-56; Shook, 172 S.W.3d at 41; Geuder, 142 S.W.3d at 376.

In this analysis, we decide whether the error had a substantial and injurious effect or influence in determining the jury s verdict. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). If we have a grave doubt that the result [of the underlying proceeding] was free from the substantial influence of the error, then [we] must treat the error as if it [had a substantial influence on the outcome]. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

Because Overton pleaded guilty before the jury, the State no doubt abbreviated its presentation of evidence. The State did not refer to the handgun in its opening statement, focusing instead on the quantity of cocaine seized, the negative impact of drugs in the community, and Overton s prior record. The State s punishment evidence had four primary components: (1) Overton s prior criminal history, including a prior felony conviction for aggravated assault with a deadly weapon (for allegedly shooting the complainant in the face)[4] and prior misdemeanor convictions for riot, deadly conduct, evading arrest/detention, and criminal trespass; (2) the fact that Overton was arrested with a greater quantity of cocaine than anyone before in Navarro County (according to the detective s recollection); (3) the negative impact of drugs in the community; and (4) the handgun found in the trunk.

In closing argument, Overton s counsel commented that there was no evidence connecting Overton to the handgun and that the jury should not just assume it was his because he was carrying drugs. He asked for a minimum sentence because this was Overton s first drug-related conviction. The prosecutor emphasized Overton s prior convictions, focusing in particular on his conviction for shooting someone in the face, which, in the prosecutor s words, established him as a dangerous guy. The prosecutor encouraged the jury to consider the quantity of cocaine seized, the handgun found in the trunk, and the negative impact of drugs in the community, and, although he mentioned the handgun three times during his closing argument, he placed the greatest emphasis on this being the largest cocaine arrest in county history, Overton s prior convictions (all from Navarro County), and the negative impact of drugs in the community.

Though the punishment of seventy-five years imprisonment and a $10,000 fine is at the high end of the applicable range, the jury had ample legitimate grounds for assessing this punishment, and the prosecutor did not place excessive emphasis on the handgun evidence. Thus, having reviewed the record as a whole, we have fair assurance that the erroneous admission of the handgun evidence did not have a substantial and injurious effect or influence in determining the jury s verdict at the punishment phase. See Garcia v. State, 126 S.W.3d 921, 927-28 (Tex. Crim. App. 2004); Bain v. State, 115 S.W.3d 47, 51-52 (Tex. App. Texarkana 2003, pet. ref d); see also Peters, 93 S.W.3d at 354-55 (improper admission of evidence regarding sawed-off shotgun did not affect verdict of guilt even though prosecutor referred to this evidence in closing argument). Accordingly, we overrule Overton s third issue.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment without issuing a separate opinion)

Affirmed

Opinion delivered and filed February 13, 2008

Do not publish

[CRPM]

[1] Because of Overton s guilty plea, all the evidence was introduced during the punishment phase.

[2] However, Overton did not ask the court to strike Turner s initial response that drug dealers don t want to meet in Collin County [b]ecause of the sentences they get.

[3] The United States Supreme Court was quoting its earlier decision in Enmund v. Florida. See Booth v. Maryland, 482 U.S. 496, 502, 107 S. Ct. 2529, 2533, 96 L. Ed. 2d 440 (1987) (quoting Enmund v. Florida, 458 U.S. 782, 801, 102 S. Ct. 3368, 3378, 73 L. Ed. 2d 1140 (1982)).

[4] The prosecutor characterized the shooting in this manner in his questions but the witness being questioned about the prior conviction observed that the documentation offered in evidence does not indicate where the complainant was shot.