Rogers v. State

• Decision Date: 31 March 1993
• Docket Number: Nos. 0268-90,0269-90,s. 0268-90
• Citation: 853 S.W.2d 29
• Parties: John Hardie ROGERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 29

853 S.W.2d 29

John Hardie ROGERS, Appellant, v. The STATE of Texas, Appellee.

Nos. 0268-90, 0269-90.

Court of Criminal Appeals of Texas,

En Banc.

March 31, 1993.

Rehearing Denied May 12, 1993.

Tom Moran, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Linda A. West, Casey J. O'Brien, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING ON APPELLANT'S

PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was charged in a single indictment with having committed two separate burglaries of a habitation, TEX. PENAL CODE ANN. § 30.01, and with possession of a controlled substance, methamphetamine, weighing less than 28 grams, TEX. HEALTH & SAFETY CODE § 481.115(b). Appellant was convicted of all three offenses in a single trial. The jury assessed punishment at twenty years and a fine of ten thousand dollars for the possession offense and at thirty years for each of the burglary offenses, to run concurrently. The Court of Appeals for the Fourteenth Judicial District affirmed the judgment of the trial court in an unpublished opinion. Rogers v. State, Nos. C14-89-00429-CR, C14-89-00579-CR, slip op., 1990 WL 4645 (Tex.App.--Houston [14th Dist.] Jan. 25, 1990). Appellant filed a petition for discretionary review which we refused. Appellant subsequently filed a Motion for Rehearing. We granted two of appellant's four grounds for rehearing. ¹

On the night of January 14, 1989, several Houston Police Department officers went to appellant's residence with an arrest warrant for appellant in connection with a burglary of a habitation. Upon entering the house, the officers observed appellant sitting on a couch in the living room, pushing a package down between the cushions of the couch. The officers recovered the package from the couch and later determined it contained methamphetamine. Appellant was placed under arrest pursuant to the burglary arrest warrant. In the meantime, a search of the house was conducted and marijuana was recovered from between a mattress and box springs in a rear bedroom. Appellant informed the officers that the marijuana belonged to him.

At trial, the State offered appellant's written confession in which he admitted using and selling marijuana and methamphetamine. Appellant objected to the following portion of the confession as constituting irrelevant extraneous offense evidence:

I also have in my possession at my residence a quantity of marijuana approximately four ounces, I had put it in my mother's bedroom. I am a marijuana user and sell small quantities of it. I am also a methamphetamine dealer and sell quarter grams to finance my methamphetamine habit.

State's Exhibit No. 2A. The State argued that evidence pertaining to the marijuana was res gestae of the offense and that appellant's statements regarding the methamphetamine were admissible to show motive to commit the burglaries. The trial court overruled appellant's objections and the confession was admitted. Also admitted was testimony describing the recovery of the marijuana and appellant's oral statement that the marijuana belonged to him.

The court of appeals held that the trial court properly admitted the extraneous offense evidence concerning "the marijuana and the references to it in the confession ... because it was res gestae of the offense charged (possession of methamphetamine)." The court of appeals also concluded that since appellant had introduced evidence of the weight of the marijuana and the officer's opinion that the amount of methamphetamine recovered was not for personal use, appellant could not complain.

I. Extraneous Offense Evidence

Appellant argues in his motion for rehearing that the evidence was irrelevant extraneous offense evidence and inadmissible under the Rules of Criminal Evidence. ² We have recently addressed the doctrine of res gestae (or "background evidence" as it is now called) in light of Rules of Criminal Evidence 401 and 404(b), setting forth a two-part test to be applied in determining the admissibility of background evidence. Mayes v. State, 816 S.W.2d 79, 84-87 (Tex.Crim.App.1991). The first question to be addressed is whether the background evidence is relevant under Rule of Criminal Evidence 401. Id. at 84. If the background evidence in question is relevant, the next issue to be resolved is whether the evidence "should be admitted as an 'exception' under Rule 404(b)." ³ Id. at 85.

Applying the Mayes test to the instant case, our first step is to determine whether the evidence pertaining to the marijuana ⁴ was "relevant" under Rule of Criminal Evidence 401. Rule 401 provides that:

"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 be without the evidence.

TEX.R.CRIM.EVID. 401.

The relevancy of the marijuana to either of the instant offenses is a close question. Evidence that appellant uses and sells one type of a controlled substance (marijuana) could arguably make it more probable that appellant would also be inclined to be in possession of another type of illegal substance (methamphetamine). While this Court is not necessarily convinced of the relevancy of the marijuana evidence under that argument, we will not "superimpose [our] own judgment as to relevance over that of the trial court". Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App.1991) (op. on reh'g). As we have recognized, "[r]easonable men may disagree whether in common experience a particular inference is available" and we will not disturb a trial court's ruling as long as it is within the zone of reasonable disagreement. Id. at 391. We hold that it was within the zone of reasonable disagreement for the trial court to find that the evidence pertaining to the marijuana was relevant.

The next step under Mayes is to determine whether the background evidence at issue is admissible as an exception under Rule of Criminal Evidence 404(b). Although Rule 404(b) enumerates specific purposes for which "other crimes, acts or wrongs" are admissible, the Rule's list of "other purposes" is "neither exclusive nor collectively exhaustive." Montgomery, 810 S.W.2d at 388. The question, then, is for what purpose might background evidence be admitted under Rule 404(b). In addressing that question, Mayes distinguished between two types of background evidence: (1) evidence of other offenses connected with the primary offense, referred to as "same transaction contextual evidence" and (2) general background evidence, referred to as "background contextual evidence". ⁵ Mayes, 816 S.W.2d at 86-87.

The evidence pertaining to appellant's possession, use and sale of marijuana constitutes "same transaction contextual evidence" rather than "background contextual evidence", as such evidence is of "acts, words and conduct" of appellant at the time of his arrest. ⁶ See id. at 86-87 n. 4. Same transaction contextual evidence is admissible as an exception under Rule 404(b) where such evidence is necessary to the jury's understanding of the instant offense:

Same transaction contextual evidence is deemed admissible as a so-called exception to the propensity rule where "several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others." [citation omitted] The reason for its admissibility "is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose." [citation omitted] Necessity, then, seems to be one of the reasons behind admitting evidence of the accused's acts, words and conduct at the time of the commission of the offense. [citation omitted]

Id. at 86-87 n. 4. Necessity, then, is an "other purpose" for which same transaction contextual evidence is admissible under Rule 404(b). Only if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transaction contextual evidence be admitted. ⁷

In narrating appellant's arrest for the instant offenses it would not have been impracticable to avoid describing the recovery of the marijuana and appellant's confessed use and sale of marijuana. See id. The State could simply have described the events of appellant's arrest without mentioning that marijuana was found, in addition to methamphetamine. The jury's understanding of the instant offenses would not have been impaired or clouded had the State described appellant's arrest without including the evidence concerning the marijuana. Such omission would not have caused the evidence regarding the instant offenses (burglary and possession of methamphetamine) to appear incomplete. Further, omission of the objectionable portion of appellant's written confession would not have rendered the remaining portions of the confession confusing or questionable. We hold that the evidence concerning the marijuana was not "necessary" to the jury's understanding of the offenses of burglary and possession of methamphetamine and was therefore not admissible as same transaction contextual evidence under Rule of Criminal Evidence 404(b). ⁸ The court of appeals erred in holding that such evidence was admissible as "res gestae" of the offense.

II. Waiver

The court of appeals held that appellant waived any error ⁹ regarding the admission of the extraneous offense evidence by eliciting testimony that the amount of methamphetamine seized was not for personal use and by eliciting testimony as to the weight of the marijuana. Appellant claims that error was not waived because appellant elicited that testimony in an effort to "take the sting out of evidence...