Fleming, Guy Hampton v. State

Affirmed and Opinion filed _____________, 2002 Affirmed and Opinion filed September 26, 2002. In The Fourteenth Court of Appeals ____________ NO. 14-01-01030-CR ____________ GUY HAMPTON FLEMING, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 884,614 O P I N I O N A jury convicted appellant, Guy Hampton Fleming, of delivery of methamphetamine weighing between four and two-hundred grams and assessed a twenty-year prison term and a $5,000 fine. In two points of error, appellant argues the trial court erred in denying his request for a curative instruction and in admitting evidence of an extraneous offense. We affirm. On March 8, 2001, an informant and an undercover officer with the Harris County Narcotics Task Force arrived at appellant’s trailer to buy one ounce of methamphetamine for $1,000. The informant entered the trailer briefly, and upon leaving was seen being handed a package by appellant. The informer (who did not testify at trial) gave the package to the undercover officer, and later tests showed it contained methamphetamine. According to appellant (who did testify), he and the informant discussed purchase of a travel trailer, and the package of methamphetamine was supplied by the informant who wanted to use it as part of the purchase price. The undercover officer then approached appellant’s trailer, took out his wallet, and asked appellant “How much was it?” Appellant responded, “you know, $1,000. That’s what I told you.” Appellant was then arrested. The State sought to prove appellant was selling methamphetamine; appellant’s defense was that he was only selling a trailer. The jury agreed with the State. Instructions to Disregard In his first point of error, appellant argues the trial court should have granted his request for an instruction to disregard certain testimony from the undercover officer. The following exchange took place during the prosecutor’s direct examination of the undercover officer: Q: Did you search the rest of the trailer? A: No I did not. Q: What did you do? A: I mainly gathered the evidence and the information. Q: Okay. What evidence and what information? A: They found some more – some tablets of Xanax at that location. Q: Did you find any sort of prescription for the Xanax? A: No, Sir. Q: What did you do after gathering information and gathering the evidence? [DEFENSE COUNSEL]: I object to the evidence about the Xanax being introduced. THE COURT: Rephrase the question. Sustained. Q: What did you do after gathering the information? A: After gathering all the evidence – [DEFENSE COUNSEL]: Your Honor, I request that you instruct the jury to disregard all the information about the Xanax. THE COURT: That request is denied. Next question. Even assuming appellant’s request for an instruction was timely and the trial court erred in denying the request, we find no error requiring reversal. During presentation of the defense case, appellant testified that the informant was trying to set him up. The trial court had discretion to admit evidence of appellant’s possession of illegal contraband (Xanax without a prescription) on the ground that it was relevant as to whether he was inclined to possess and sell other contraband. See Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App. 1993). Although this evidence may have been premature during the state’s case, appellant’s subsequent testimony rendered its admission harmless. See Rubio v. State, 607 S.W.2d 498, 502 (Tex. Crim. App. 1980). Furthermore, we must disregard any error unless it affected the appellant’s substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Here, the only mention of Xanax was in this brief direct examination. It was not brought up again or referred to in either closing arguments or punishment. Consequently, we conclude that any error could not have had a substantial and injurious effect on the jury’s verdict. Appellant’s first point of error is overruled. Extraneous Offense In his second point of error, appellant asserts the trial court erred in admitting evidence that appellant sold methamphetamine to the undercover officer on a prior occasion. After appellant testified that he knew nothing about a sale of narcotics and had never seen the undercover officer before, the State recalled the officer to testify. In his rebuttal testimony, the officer testified he and the informant had purchased a much smaller amount of methamphetamine from appellant two months earlier, but had deferred making an arrest pending arrangements for a larger transaction. The State again argues that the appellant failed to preserve error. Although appellant objected several times to the prior offense testimony on grounds that the testimony was “irrelevant,” appellant never specifically objected based on Rule 404(b), the ground he asserts on appeal. But after his final objection, the trial court conducted a bench conference off the record, and then stated: THE COURT: Let the record reflect the objection to this testimony is overruled and that the defense has a continuing objection to this extraneous offense. When the specific basis for the objection can be determined from the context, a general objection may be enough to preserve error. Tex. R. App. P. 33.1; Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). It seems clear that the trial court understood appellant’s objection to be based on Rule 404(b). See Zillender, 557 S.W.2d at 517; McKee v. State, 855 S.W.2d 89, 91 (Tex. App.—Houston [14th Dist.] 1993, no pet.). Therefore, appellant has preserved error. We review the trial court’s ruling under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Appellant does not raise Rule 403 on appeal, and consequently we do not decide whether the evidence should have been excluded because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Rule 404(b) prohibits admission of character evidence solely to show that a defendant conformed to that character on this occasion. Tex. R. Evid. 404(b). While evidence of other crimes, wrongs or acts may have a tendency to show character in conformity, the rule allows such evidence when it also has relevance apart from proof of character conformity, such as rebuttal of a defensive theory. Powell, 63 S.W.3d at 439. In this case, appellant’s defense was that the informant was trying to set him up. Appellant’s prior contact with the undercover officer in the presence of the same informant and in the context of a narcotics transaction makes it less probable that appellant misunderstood what the officer was offering to purchase, or it is at least subject to reasonable disagreement that the evidence had probative value apart from character conformity. Thus, we overrule appellant’s second point of error and affirm the judgment of the trial court. /s/ Scott Brister Chief Justice Judgment rendered and Opinion filed September 26, 2002. Panel consists of Chief Justice Brister and Justices Hudson and Fowler. Do Not Publish — Tex. R. App. P. 47.3(b).