In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00126-CR ______________________________
STEVEN LEMOND DARDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 28095-B
Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross
O P I N I O N
Steven Lemond Darden appeals his conviction for unlawful possession of a firearm by a felon. Tex. Pen. Code Ann. § 46.04 (Vernon Supp. 2002). A jury found Darden guilty and assessed punishment at eight years' imprisonment. Darden appeals, contending the trial court abused its discretion by admitting evidence of an extraneous offense.
On May 15, 2000, Longview police attempted to serve an arrest warrant for Darden. The police had a tip Darden was at a particular residence wearing red clothing. When the police entered the residence, Officer Doug Binkley saw Darden, who turned and fled. While chasing Darden, the police saw Darden discard a gun, which the police retrieved. Darden successfully eluded arrest at that time. On July 14, 2000, Longview police arrested Darden on unrelated charges. On the occasion of this arrest, Darden again fled when he was stopped by the police, but was quickly apprehended.
At his trial for unlawful possession of a firearm by a felon, stemming from the May 15 incident, the court overruled Darden's objection to the admission of the extraneous offense of his attempted flight from police on July 14. Darden contends the trial court erred in allowing this evidence before the jury during the guilt/innocence phase of his trial.
The standard of review of a trial court's decision to admit or exclude evidence is abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 122 S. Ct. 127, 151 L. Ed. 2d 82 (2001). We review the trial court's ruling admitting the extraneous offense evidence under an abuse of discretion standard, meaning we uphold the trial court's decision if it is within "the zone of reasonable disagreement." Id.
Generally, evidence of other crimes, wrongs, or acts is inadmissible for the purpose of proving action in conformity therewith, unless it is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1990) (op. on reh'g) (identity is a valid purpose for admitting evidence under Rule 404(b)). As required, Darden timely requested notice from the State of its intent to introduce evidence of an extraneous offense. See Tex. R. Evid. 404(b). The State gave notice of its intent to introduce an extraneous offense.
The State sought the admission of this extraneous offense to show the identity of Darden. Before extraneous offenses may be admitted to show identity, identity must be an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985). Raising the issue of identity does not automatically render extraneous offenses admissible. Lane, 933 S.W.2d at 519. "To be admissible to show identity, an extraneous offense must be so similar to the offense charged that the offenses are marked as the accused's handiwork." Id.; Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993). Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Lane, 933 S.W.2d at 519; Ransom v. State, 503 S.W.2d 810 (Tex. Crim. App. 1974).
The offense charged in this case was possession of a firearm by a felon. The extraneous offense admitted was of Darden attempting to evade arrest. The trial court erred in admitting the evidence of Darden's attempted evasion from the police on July 14, 2000. Even if Darden put his identity into issue as the State claims, this extraneous offense evidence does not fit within the permissible extraneous offense evidence allowed to show identity. By raising a defensive theory, a defendant opens the door for the state to offer rebuttal testimony regarding an extraneous offense if the extraneous offense has common characteristics with the offense for which the defendant is on trial. See Bell v. State, 620 S.W.2d 116, 126 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g); Faison v. State, 59 S.W.3d 230 (Tex. App.-Tyler 2001, pet. ref'd). However, evidence admitted for the purpose of proving identity must demonstrate a much higher degree of similarity to the charged offense than extraneous acts offered for other purposes, such as intent. Bishop, 869 S.W.2d at 346. Without such similarity, the probative value of such evidence would be substantially outweighed by its prejudicial effect. Id. The fact Darden ran on another occasion does not help demonstrate he was a felon in possession of a firearm, the offense for which he was charged.
We find the trial court erred in allowing into evidence at the guilt/innocence phase of trial an extraneous offense unrelated to the offense charged. Having determined error, we now turn to the harmfulness of the error. We consider this type of error to be nonconstitutional. It must be disregarded if it does not affect Darden's substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the record shows the error had 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) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)). Thus, we review the entire record to determine whether the error had more than a slight influence on the verdict. Veteto v. State, 8 S.W.3d 805, 815 (Tex. App.-Waco 2000, pet. ref'd); Fowler v. State, 958 S.W.2d 853, 866 (Tex. App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex. Crim. App. 1999).
The question is, did the admission of the extraneous offense have more than a slight influence on the verdict. A review of the entire record shows that Binkley positively identified Darden before Darden ran on May 15 and that the police witnessed Darden throwing the gun as he ran. In light of this unchallenged evidence, we cannot say the admission of this extraneous offense evidence had more than a slight influence on the verdict.
Darden also contends the trial court's error in admitting this extraneous offense evidence was compounded by the prosecutor's statements during closing argument concerning Darden's possession of marihuana on the occasion of his arrest on July 14. However, a review of the record shows that, while Darden objected to the prosecutor's reference to cocaine, he failed to make a timely complaint concerning the reference to marihuana. Error has not been preserved. Tex. R. App. P. 33.1.
We overrule Darden's point of error and affirm the judgment.
Donald R. Ross
Justice
Date Submitted: January 17, 2001
Date Decided: February 14, 2002
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ted was classified by the Legislature as a Class A misdemeanor, not a felony. Because of this contradictory evidence, the court held that the evidence was legally sufficient, but factually insufficient to prove the underlying offense was a felony.
The evidence in this case is stronger and clearer than that in Burns. Here, Jacobs' bond makes no affirmative statement about the classification of the offense, but it does have an underlining of the word "misdemeanor" that appears on the printed form of the bond. All of the other evidence, however, shows the underlying charge against Jacobs was a felony. The district court bailiff testified that Jacobs was required to appear on a felony theft charge. At the defense counsel's request and with the prosecutor's agreement, the trial court took judicial notice of its own records, noting that the docket sheet for the case against Jacobs showed that the case was docketed as a felony.
We find legally sufficient evidence to support the trial court's finding that the offense for which Jacobs was required to appear was a felony. Jacobs has not raised a factual insufficiency challenge on this issue. The trial court did not err in refusing Jacobs' motion for a finding of not guilty.
Jacobs also contends the trial court erred in allowing the State to introduce evidence of numerous other failures of Jacobs to appear in court when required to do so, as well as several bond forfeitures in other cases. The trial court found that Jacobs "opened the door" to this evidence when he testified that it was not true that he had a habit of failure to appear, and that he had missed only once and had not had any bond forfeitures. Jacobs' voluntary testimony included the following:
[Prosecutor]: And in this particular case, you were getting pretty close to trial on that case, were you not, with Mr. Verschoyle [Jacobs' previous attorney]?
[Jacobs]: And as I understand, the day I didn't get here, they said somebody stood up and said I'm in the habit of doing this, which that's not true.
[Prosecutor]: That wasn't the question. You were getting pretty close to trial, were you not, before Mr. Verschoyle got out? That week, or shortly, within a couple or three weeks of trial, were you not, on your theft charge? You don't know?
[Jacobs]:No, sir.
[Prosecutor]: Well, since you brought up "in the habit of it," you've missed court a few times in the past, have you not?
[Jacobs]: One other time. I've never had a bond forfeiture.
[Prosecutor]: Never? So if the computer says you've missed seventeen times, it's wrong?
[Jacobs]: Yes, sir.
The trial court did not err in allowing the State to introduce evidence of Jacobs' other failures to appear and bond forfeitures.
Finally, Jacobs contends that he established as a matter of law that he had a reasonable excuse for his failure to appear.
Jacobs testified and admitted he knew he was required to attend court on the underlying charge on June 16, 2003, at 1:00 p.m. Jacobs testified that on that day he had no vehicle because his truck was impounded by the police department. He was in Atlanta, some fifteen miles from the courthouse in Linden. He said he left Atlanta at 9:30 a.m. walking on Highway 59 toward Linden trying to hitch a ride. He got one ride, but it took him only a short distance. He was unable to get any other ride. He said he made six telephone calls, three to the district clerk's office and three to the district attorney's office, to tell them he could not get there.
However, Jacobs admitted and there was undisputed testimony from Juanita Watson, Jacobs' bond maker, that Watson and Jacobs had a longstanding relationship, Watson regularly made bonds for Jacobs, and if he ever needed a way to get to court, she would come get him and take him. Jacobs knew he could call Watson at any time and get a ride to court. Jacobs admitted, however, and Watson testified, that he did not try to contact Watson to get her to take him to court, although he had ample advance notice of the court setting to contact her and get a ride. Furthermore, he testified that he did not telephone the court or district attorney's offices until around three o'clock the afternoon of his appearance day, some two hours after the scheduled time for his appearance.
Considering all this evidence, it is clear that Jacobs did not establish as a matter of law that he had a reasonable excuse for failing to appear. Nor is the trial court's finding that he had no reasonable excuse against the great weight and preponderance of the evidence.
For the reasons stated, we affirm the judgment of the trial court.
William J. Cornelius*
Justice
Date Submitted: May 31, 2005
Date Decided: July 27, 2005
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*Chief Justice, Retired, Sitting by Assignment