Saenz v. State, 1205-90

• Decision Date: 25 November 1992
• Docket Number: No. 1205-90,1205-90
• Citation: 843 S.W.2d 24
• Parties: Horencio Fernandez SAENZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 24

843 S.W.2d 24

Horencio Fernandez SAENZ, Appellant, v. The STATE of Texas, Appellee.

No. 1205-90.

Court of Criminal Appeals of Texas En Banc.

Nov. 25, 1992.

Mary E. Conn, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and J. Harvey Hudson, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was charged by indictment with the offense of possession of less that 28 grams of cocaine, alleged to have occurred on or about November 26, 1985. On September 18, 1986 in the 177th Judicial District Court of Harris County, appellant was found guilty by a jury and sentenced by the court to "eight years confinement in the state penitentiary." ¹ We granted appellant's sole ground for review which averred, "The Court of Appeals erred in holding that the admission of testimony about an uncharged sale of cocaine at a location different from the location where the offense charged occurred was not an extraneous offense, and thus finding it admissible."

I. SUMMARY OF PERTINENT FACTS

The record reveals that on November 26, 1985, officers of the Pasadena Police Department executed a search warrant at a particular apartment. Appellant had been observed previously entering and exiting that apartment. On the day that the warrant was executed, he was also observed entering and exiting the apartment. He was shortly thereafter stopped and taken into custody on a driveway at the complex and returned to the apartment where the warrant was being executed. When he was arrested, certain currency was recovered from his pocket. At that apartment a substance determined to be cocaine was discovered. Also, a Houston Lighting & Power Company bill and a Texas Vehicle Registration were found there, both of which were addressed to appellant, but at two different addresses in La Porte, Texas.

Testimony indicated that the currency recovered from appellant belonged to the Pasadena Police Department. This money had been given "to a subject" earlier that same day. The testifying officer had last seen the money "less than an hour" before appellant was arrested and the money recovered. That this was the same money was verified by comparing it to previously made photocopies. The officer also testified that he "recovered a quarter ounce of cocaine." It is very unclear from whom or from where this quarter ounce was recovered. ² An exhibit was later marked and identified as "a quarter ounce of cocaine" but no testimony ever specifically described wherefrom it came, nor was it ever actually introduced into evidence. ³ Appellant vigorously and repeatedly objected to the above-described testimony regarding the money based upon such being collateral extraneous matter, extraneous offenses, and that the prejudicial effect would outweigh any probative value. He even sought and received "a running objection to [that] line of testimony."

II. APPELLANT'S CLAIM

Appellant claims on appeal that the above-described testimony indicated that prior to his arrest he had met with "the subject" and somehow acquired marked police money while "the subject" acquired cocaine and that such was inadmissible extraneous offense evidence, specifically of a prior drug purchase/sale. The State responded that the recovery of the money from appellant does not, in and of itself, constitute evidence of an extraneous offense, and if the recovery of such money is not connected to an extraneous offense then such is an irrelevant detail which is neither probative of any issue in the case nor prejudicial to appellant. The State also claims that appellant's sale of cocaine to an undercover agent a short time before the execution of the search warrant would seem to irrefutably link appellant to the contraband found in the apartment, thus such evidence was admissible and the trial court erred in limiting the testimony to vague references of "marked" money rather than permitting the State to introduce every detail of the extraneous drug sale.

The Fourteenth Court of Appeals disagreed with appellant's extraneous offense claim. Fernandez Saenz v. State, 802 S.W.2d 765, 766 (Tex.App.--Houston [14th Dist.] 1990). It held that the trial court did not err in admitting the evidence, ostensibly because such was "probative evidence linking appellant to the contraband found in the apartment." Id. at 767.

III. EXTRANEOUS OFFENSE ANALYSIS

In Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991) (Opinion on Rehearing), we recently explicitly detailed the proper analysis of extraneous offense evidence, at both the trial and appellate levels, per Article IV of the Texas Rules of Criminal Evidence. ⁴ Without belaboring the canons explicated in Montgomery, suffice it to say that after appropriate objections, to be admissible, extraneous offense evidence must be relevant apart from supporting an inference of character conformity and such evidence's probative value must not be substantially outweighed by the danger of unfair prejudice or other negative attributes (e.g. confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence). We review a trial court's actions regarding the admissibility of such evidence under an abuse of discretion standard.

Appellant's above-noted objections were quite sufficient to properly bring his complaint to the trial court's attention. The record does not reflect that there was any discussion or argument by the State in favor of the challenged evidence, although as the witness first mentioned recovering money, appellant requested a bench conference, whereupon an unrecited "[o]ff-the-record discussion" took place. The trial court simply overruled appellant's objections. ⁵

Appellant's complaint relates to "testimony about an uncharged sale of cocaine at a location different from the location where the offense charged occurred;" i.e. that appellant's possession of "marked" money coupled with the testimony about the recovery of the mysterious "quarter ounce of cocaine" insinuated that he had acquired that money by somehow being involved in a cocaine sale. The State now claims that such an inference was properly placed in evidence before the jury to prove the requisite affirmative link to the contraband recovered in the apartment. As such an inference could certainly logically provide such a link, we conclude that by reasonable perception of logic and common experience the trial court could have reasonably concluded that the challenged evidence served some purpose other than character conformity; therefore there was no abuse of discretion in finding such. Montgomery v. State, 810 S.W.2d at 391; Tex.R.Crim.Evid. 404(b). So after concluding that there was no error in the trial court's implied finding that the challenged evidence had relevance apart from character conformity, we must now decide whether there was any abuse of discretion in admitting the evidence in light of appellant's objection "that the prejudicial effect would outweigh any probative value."

We have stated that evidence of other crimes, wrongs, or acts may create "unfair prejudice" if under the circumstances a jury would be more likely to draw an impermissible character conformity inference than the permissible inference for which the evidence is relevant, or if it otherwise distracts the jury from the specifically charged offense and invites them to convict on a moral or emotional basis rather than as a reasoned response to the relevant evidence. Montgomery v. State, 810 S.W.2d at 395. We must also make an inquiry into the State's need for the evidence. Id.

The State claims that it needed the evidence to provide an affirmative link between appellant and the cocaine found in the apartment. The record reflects that the previously mentioned vehicle registration and electric service bill indicate out-of-town addresses for appellant, though both appear to be for periods prior to November of 1985. ⁶ The cocaine was recovered from the same bedroom as were the registration and electric service bill. The cocaine was found in several small clear plastic bags in a quantity of "residue and small amounts of white powder." The lab report and examination sheet indicate that the total combined weight of the cocaine recovered in the apartment was .30016 grams. (These were in separate quantities of .2308, .0686, .00007, .00009, and .00060 grams respectively.) ⁷ Drug paraphernalia, specifically hemostats, pipes, plastic glass, and a cigarette roller, was also found in the apartment. Some of the paraphernalia was recovered in the previously mentioned bedroom while some was found in the living room area. Additionally, a straw, funnel, glass tube, and razor blades, all of which contained white powder residue, were recovered from "various parts of the [previously mentioned] bedroom and the living room." A set of weights to a scale was also recovered. The officer testified that the above-described paraphernalia was not examined and tested for fingerprints.

The officer admitted that he did not know how long the cocaine had been in the apartment or who had brought it there. He also admitted that he had never seen appellant in any bedroom in the apartment nor in possession of or using any of the paraphernalia. He did testify that he had observed appellant at that apartment "probably four or five times" during surveillance and saw him entering it "maybe two or three times," and on at least one occasion using a key. He also testified that a woman and a two-year-old boy were present during the search, and that that woman and another woman who was not present were named on the lease agreement for that apartment. As stated previously appellant was arrested outside the apartment.

We observe that the probative value of the complained of testimony, i.e. that regarding appellant's possession of the "marked" money, was rather low, particularly in...