Opinion issued October 30, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00576-CR
JOSE CARLOS LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 876259
MEMORANDUM OPINION
Appellant, Jose Carlos Lopez, was charged by indictment with possession with intent to deliver at least 400 grams of cocaine. A jury found appellant guilty, and the trial court assessed a sentence of 30 years’ confinement. Appellant filed a timely motion for new trial, which was overruled by operation of law. On appeal, appellant contends that (1) the trial court erred in failing to give the jury an application paragraph in the charge on the issues of voluntary consent to search and illegally obtained evidence, (2) the trial court erred in admitting appellant’s driving record into evidence when several extraneous offenses were visible on the record, and (3) the trial court erred in admitting evidence of appellant’s failure to appear on a trial date. We affirm.Background
On May 2, 2001, two undercover narcotics officers informed Houston Police Officer James Gratz of traffic violations committed by appellant and requested that appellant be stopped. Officer Gratz stopped appellant for failure to signal and for failure to have a front license plate on his car. Officer Gratz determined that appellant’s driver’s license was suspended and, after reading appellant his Miranda rights, placed him into custody. The undercover narcotics officers spoke to appellant and obtained his signature on a consent-to-search form. The consent authorized the search of appellant’s vehicle and his home at 310 Plymouth. Appellant did not dispute that he signed the form without coercion, but claimed at trial that the police added the house to the consent form after he signed it. Officer Gratz, the narcotics officers, and appellant then drove to 310 Plymouth. The officers entered the residence using a key from appellant’s key ring. Upon entering, the officers saw marijuana, cocaine, and various drug paraphernalia in the living room. More cocaine was found in the kitchen, along with products used to make crack cocaine and a digital scale. Appellant’s identification card and his previously expired driver’s license were both in close proximity to the cocaine.
Appellant’s motion to suppress was heard during the trial and appellant argued that the search of 310 Plymouth was illegal. He testified that the consent form only included a search of his car when he signed it and that the police officers must have added the residence later. Appellant stated that he had not lived at 310 Plymouth for a month. Appellant also elicited testimony from Robert Torres, a passenger in appellant’s car when it was stopped, that appellant told the officers that they could not search the house and that the officers said that the consent form was only for the car.
Appellant requested a jury instruction on article 38.23 of the Texas Code of Criminal Procedure regarding illegally obtained evidence. The instruction was placed in the jury charge, along with definitions of consent and effective consent, but the court refused to add an application paragraph applying the general law to the specifics of this case.
The State entered appellant’s driving record into evidence at trial to prove that appellant’s driver’s license was suspended at the time of the stop and to show that, according to that record, appellant lived at 310 Plymouth. Appellant objected to the admission of the document because it contained traffic offenses and a DWI conviction. The State refused appellant’s offer to stipulate that 310 Plymouth was the address on the driving record. The trial court ordered that the evidence of the DWI conviction be redacted and allowed the document to be admitted as redacted. The court also instructed the jury to disregard any traffic offenses except to the extent that they affected appellant’s credibility. With this limiting instruction and the redaction of the DWI conviction, the driving record was submitted to the jury.
Appellant’s failure to appear at a previous trial setting and his arrest by United States Customs was also entered into evidence, despite an objection from defense counsel. Appellant argues that the evidence of his failure to appear and subsequent detainment was more prejudicial than probative and that it should have been suppressed by the trial court.Jury Charge
In his first point of error, appellant contends that the trial court erred by failing to include an application paragraph, instead allowing the jury charge to proceed with an abstract statement of article 38.23. Article 38.23 requires the exclusion of evidence “obtained by an officer or other person in violation of any provisions of the Constitution or law of the State of Texas.” Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2003).
Appellant testified that he did not live at 310 Plymouth and that he had not lived there for a month. He also stated that workers from Mexico had been living in the house since he left and that he was currently living at 311 Plymouth. “It is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury.” Fuller v. State, 829 S.W.2d 191, 201 (Tex. Crim. App. 1992). Further, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000) (citing Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 425 (1978)). Here, appellant disclaimed any possessory interest in 310 Plymouth and the contents therein, so he had no reasonable expectation of privacy in the residence and therefore had no standing to challenge the legality of the search. Because appellant had no standing to contest the search, he had no right to an article 38.23 instruction at all. The trial court did not err in refusing to give any further instructions regarding article 38.23. We overrule appellant’s first point of error.Improperly Admitted Evidence
In his second and third points of error, appellant asserts that the trial court erred when it admitted appellant’s driving record and evidence that appellant failed to appear for a trial setting. The admissibility of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).
Admission of Driving Record
In his second point of error, appellant asserts that the trial court erred in admitting his driving record into evidence. Appellant argues that his driving record contained extraneous offenses and that the admission of his driving record into evidence was more prejudicial than probative, was misleading to the jury, and caused him harm.
Rule 403 of the Texas Rules of Evidence states that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403. When considering a Rule 403 objection, the trial court weighs the probative value of the evidence against the potential for unfair prejudice. There is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion and we will uphold the ruling. Santellan, 939 S.W.2d at 169. A Rule 403 balancing test by the trial court includes the following considerations:
(1) The extent to which the extraneous evidence serves to make a fact of consequence more or less probable;
(2) the potential the evidence has to impress the jury “in some irrational but nevertheless indelible way”;
(3) the time the proponent will need to develop the evidence; and
(4) the force of the proponent’s need for this evidence to prove a fact of consequence, and whether the proponent has other evidence that can be used to establish the same fact.
Goldberg v. State, 95 S.W.3d 345, 375, (Tex. App.—Houston [1st Dist.] 2002) (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)).
The State asserts that it introduced the driving record into evidence to prove that the license was suspended, which bore on appellant’s motion to suppress, and to prove that the address listed on the license was 310 Plymouth. The case against the appellant was circumstantial as the drugs were not found in his possession, so the driving record supported the State’s case by linking the appellant to the address where the drugs were found and lending credence to the testimony of the officers. Further, the extraneous offenses contained in the record, namely numerous traffic misdemeanors, were unlikely to impress the jury “in some irrational, but nevertheless indelible way.” See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)). The State required no additional time to present this evidence and the jury was not likely to be confused by its presentation. The trial court did not abuse its discretion in admitting this evidence. We overrule appellant’s second point of error.
Failure to Appear for Trial Setting
In his third point of error, appellant asserts that the trial court erred in allowing the State to present evidence of his failure to appear for a trial setting and his subsequent arrest in Brownsville. Appellant contends that the probative value of the evidence was greatly outweighed by the potential for unfair prejudice. Appellant testified that he failed to appear at the court because he was mistaken about the court date and that he had just returned from Mexico, where he had been searching for witnesses.
Evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994). Here, the failure of the appellant to appear at his trial setting and his subsequent arrest in Brownsville could indicate, as the State suggests, that appellant was fleeing his trial or, as appellant would have us believe, that he was seeking to garner witnesses for a successful defense. In either case, the evidence has some relevance to the case. Appellant has not shown that the possible prejudicial effect of this information was great enough to outweigh the probative value of the evidence to the jury. Therefore, we overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).