Charles Lester v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00215-CR

Charles Lester,

Appellant

v.

The State of Texas,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F40872

MEMORANDUM Opinion

Charles Lester was charged with two counts of possession of a controlled substance, cocaine and methamphetamine, with the intent to deliver. A jury found him guilty of the lesser offenses of possession of a controlled substance, cocaine and methamphetamine. The jury found an enhancement paragraph to be true and assessed punishment at 85 years in prison. We affirm.

After conducting surveillance on Lester s residence, law enforcement officers obtained a search warrant and entered the residence. In the residence, they found scales, baggies, a drug ledger, a loaded shot gun, over $1400 in cash, cocaine, and methamphetamine. The cocaine totaled 114.81 grams and the methamphetamine totaled 7.87 grams. Lester was arrested at the residence and admitted that the drugs found were his and that he had the drugs to sell.

Hearsay

In his first issue, Lester asserts that the trial court erred in admitting testimony by N.H. Laseman, a deputy chief with the Cleburne Police Department, over Lester s hearsay objection. Specifically, Lester complains about Laseman s testimony that he became familiar with 1308 South Brazos[1] because neighbors were complaining about drug activity and that drugs were being sold in the street.

Testimony by an officer that he went to a certain place or performed a certain act in response to generalized "information received" is normally not considered hearsay because the witness should be allowed to give some explanation of his behavior. Poindexter v. State, 153 S.W.3d 402, 408 n. 21 (Tex. Crim. App. 2005). But details of the information received are considered hearsay and are inadmissible-unless the officer's conduct has been challenged, for instance, as lacking probable cause. Id. The appropriate inquiry focuses on whether the "information received" testimony is a general description of possible criminality or a specific description of the defendant's purported involvement or link to that activity. Id. Laseman s testimony that he became familiar with 1308 South Brazos because neighbors were complaining about drug activity and that drugs were being sold in the street is a general description of possible criminality and is not hearsay. Therefore, the trial court did not err in overruling Lester s objection. His first issue is overruled.

Lester also contends that Laseman s testimony regarding complaints that Lester was buying stolen property and selling drugs, that drug users and women were coming and going from the residence, and that burglaries were occurring in the area that had not happened before, was hearsay. However, Lester failed to preserve this complaint for our review because he did not object to any of this testimony. Tex. R. App. P. 33.1; Martinez v. State, 98 S.W.3d 189, 192 (Tex. Crim. App. 2003). His second issue is overruled.

Lester further complains about Laseman s testimony regarding information he received that Lester possibly bought stolen air conditioners. Lester s objection was sustained. He did not further pursue his objection to an adverse ruling. To preserve a complaint for review, a defendant must receive an adverse ruling on his objection. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991); Darty v. State, 709 S.W.2d 652 (Tex. Crim. App. 1986). Therefore, Lester failed to preserve his complaint because he did not receive an adverse ruling on his objection. Issue three is overruled.

In his fourth issue, Lester argues that testimony from Adam King, a supervisor with the S.T.O.P. Special Crimes Unit, that Lester traded drugs for sex was inadmissible hearsay. Lester objected to King s testimony and the objection was overruled. However, Lester elicited the same testimony later from King. Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. Lucero v. State, 246 S.W.3d 86, 102 (Tex. Crim. App. 2008); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Lester s fourth issue is overruled.

Extraneous Offense Evidence

In his fifth and final issue, Lester argues that the trial court erred in admitting into evidence a shotgun found in the master bedroom of Lester s residence. Specifically, he contends the testimony about the shotgun and the admission of the shotgun itself were inadmissible extraneous offense evidence.

The State initially asserts that Lester failed to preserve this issue because he did not continue to object to the testimony about the shotgun and did not object when the shotgun was admitted into evidence. With two exceptions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury. Id. Lester requested and obtained a hearing outside the presence of the jury regarding the admissibility of the shotgun. After the hearing, the trial court overruled his objections. Thus, his issue as to the admission of the shotgun is preserved.

Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005); accord Gilbert v. State, 808 S.W.2d 467, 471-72 (Tex. Crim. App. 1991). A trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005); accord Montgomery v. State, 810 S.W.2d 372, 391-392 (Tex. Crim. App. 1991). We assume though, without deciding, that the trial court erred in admitting evidence of the shotgun and move to a harm analysis.

Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." Tex. R. App. P. 44.2(b). Under that rule, we may not reverse for non-constitutional error if, after examining the record as a whole, we have a fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). The erroneous admission of an extraneous offense is non-constitutional error. Coleman v. State, 188 S.W.3d 708, 726 (Tex. App. Tyler 2005, pet. ref'd); see Herrera v. State, No. 10-06-00181-CR, 2007 Tex. App. LEXIS 910, *12 (Tex. App. Waco Feb. 7, 2007, no pet.) (mem. op.).

Lester was charged with possessing cocaine and methamphetamine with the intent to deliver those drugs. Even with the additional evidence of a vicious dog kept by Lester, a surveillance camera outside his residence, scales, baggies, and a drug ledger, the jury found him guilty of the lesser offenses of possession of cocaine and methamphetamine. The jury did not find that he had the intent to deliver the drugs.

Lester argues that his lengthy term of confinement was a result of the admission of the shotgun. We do not agree. Although the State reintroduced all the testimony and evidence from the guilt/innocence phase, the fact that Lester had guns was only mentioned in passing in the opening portion of the State s final argument. What possibly influenced the jury in their assessment of an 85 year prison term was that Lester had been previously convicted twice for possession with intent to deliver a controlled substance. He was placed on probation for one of the convictions, which was revoked. The jury also found the enhancement paragraph of a conviction for possession of a controlled substance to be true.

After reviewing the record as a whole, we have a fair assurance that the admission of the shotgun did not have a substantial and injurious effect or influence on the jury s verdict. Lester s fifth issue is overruled.

Having overruled each of Lester s issues on appeal, we affirm the trial court s judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment with a note)

Affirmed

Opinion delivered and filed August 6, 2008

Do not publish

[CRPM]

* (Because I read Poindexter and Schaffer v. State, 777 S.W.2d 111 (Tex. Crim. App. 1989), upon which Poindexter relies, differently than the majority, I believe the trial court erred in allowing hearsay statements of Officer Laseman into evidence. Based on a review of the entire record, however, I would find the error harmless, so I concur in the judgment.)

[1] This is Lester s residence.