COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JOSE LUIS MORA, ) No. 08-04-00090-CR
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Appellant, ) Appeal from
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v. ) 143rd District Court
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THE STATE OF TEXAS, ) of Reeves County, Texas
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Appellee. ) (TC# 02-06-06647-CRR)
O P I N I O N
Jose Luis Mora appeals his conviction for possession of marijuana in an amount over fifty pounds but less than two thousand pounds. A jury found Appellant guilty and sentenced him to twelve years in the Texas Department of Criminal Justice--Institutional Division, together with a fine of $3,000. Finding no error, we affirm.
FACTUAL SUMMARY
On May 10, 2002, Pecos Police Officer Kevin Roberts was working Interstate 20 in Reeves County as part of the Trans Pecos Drug Task Force. Around 10:30 that morning, Roberts observed a red 1993 Chevrolet Beretta traveling eastbound at 78 miles per hour in a 75 mile per hour zone. Roberts initiated a traffic stop and found two occupants in the vehicle. The driver was identified as Stanley Michael Drennon. The passenger sitting in the front seat was identified as Appellant.
After asking for identification, Roberts requested proof of insurance. Drennon stated he did not have his insurance but did have registration for the car. The car was registered to Ivonne Perez Sanchez. Roberts then requested that Drennon step to the rear of the vehicle and he asked who owned the vehicle. Drennon responded that he had recently purchased the car from a neighbor in El Paso for $2,100. Roberts then asked Drennon where he and Appellant were heading. Drennon told him they were traveling to Odessa to visit friends for a few days. Drennon was then directed to stay in front of the patrol car while Roberts spoke with Appellant.
Roberts asked Appellant the same questions. Appellant said that the car belonged to his aunt. But when Roberts asked her name, Appellant paused, tilted his head back, rolled his eyes like he was thinking, and finally said her name was Mrs. Perez. Appellant explained that he and Drennon were going to Odessa to look at cars with friends for a few hours. Appellant had known Drennon for four to five months. Appellant did not appear not overly nervous during the questioning and was cooperative.
Roberts then returned to speak to Drennon and again asked who owned the vehicle. Drennon insisted he had purchased the car for $2,100. He claimed he had known Appellant for several years. After speaking once again to Appellant, Appellant said he planned to sell his aunt’s car to Drennon for $1,600.
After receiving these conflicting stories, Roberts ran their licenses. Roberts approached Drennon and explained that his job was highway interdiction--recovering stolen property, weapons, large sums of money, and drugs. He asked Drennon whether he had any of those items in the car. When Drennon answered no, Roberts asked for permission to search the vehicle. Drennon gave consent. Roberts did not ask Appellant since Drennon claimed he had purchased the vehicle, Drennon was the driver of the vehicle, and Drennon had care, custody, and control of the vehicle at the time of the stop.
Roberts asked Appellant to exit the vehicle and started his search on the front passenger’s side. In examining the plastic trim running along the bottom where the carpet tucks into the floorboard, Roberts noticed that there was no dirt or debris in the screws, which he would expect in a vehicle of such poor condition. He also noticed that the screws had fresh tool marks like someone used a screwdriver to remove them, and the carpet looked fairly new. In inspecting the anchor bolts under the seats, Roberts found they were new and extended two to three inches higher than normal. Roberts then stepped back to examine the floorboard and found it went straight across. The seats were set too high for the console and the driving pedals. When Roberts hit the floorboard with his baton, he found that it had a lot of give instead of being solid. Roberts then asked Drennon again whether there was anything in the vehicle. Roberts wanted to take the car into town to continue his investigation and Drennon and Appellant said they would be willing to go. Roberts told them that for purposes of officer safety, they were not to use a cell phone. But when he turned around, one of them already had a cell phone in his hand. Since Roberts knew that sometimes chase vehicles followed, he believed it was necessary to pull up the floorboard at the scene. He discovered numerous bricks wrapped in cellophane and red axle grease, and Drennon and Appellant were arrested. Roberts placed one brick on the hood of the patrol car in the presence of Appellant. Appellant did not show surprise nor did he deny knowing about the marijuana.
Once the seats, carpet, and padding were fully removed at the sheriff’s office, Roberts recovered sixty-one bricks of marijuana and axle grease, which is frequently used as a masking agent. By this time, Drennon and Appellant had been booked into the Reeves County Jail and Roberts went to speak with them. Of significance to this appeal is a statement Appellant made to him during this visit. Appellant said that he worked for a large organization out of Mexico and could give him load information and vehicle description for vehicles coming through with loads of narcotics.
At trial, Drennon testified that he met Appellant when working at the Valley Lodge in El Paso. The pair were on their way to Oklahoma to deliver marijuana when they were pulled over in Reeves County. The plan was initiated when Appellant told Drennon to pick up the car with marijuana in it at the motel approximately a week before the trip. Appellant did not know who dropped off the car. Appellant asked Drennon to drive the car to Oklahoma. Originally, Drennon was to make the drive alone, but at the last minute Appellant wanted to accompany him. They were to split $3,000 for making the run. Appellant knew there was marijuana in the car and that once they arrived in Oklahoma, they were to leave the car in a motel parking lot and call someone to pick it up. Neither man had brought luggage along since they were to fly back to El Paso immediately after the drop.
ADMISSION OF MEXICAN CONNECTION
In Point of Error Two, Appellant complains of the admission of his statement regarding his involvement in a Mexican drug organization. Generally, a trial court has broad discretion in determining the admissibility of evidence, and the reviewing court should not reverse unless a clear abuse of discretion is shown. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831, 114 S. Ct. 101, 126 L. Ed. 2d 68 (1993). As long as the trial court’s ruling was at least within the zone of reasonable disagreement, we should not reverse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh’g).
When the State inquired about the conversation between Roberts and Appellant, defense counsel objected on hearsay grounds. During a hearing outside the presence of the jury, Appellant again objected that the statement was hearsay and added that the probative value of the testimony did not outweigh its prejudicial effect. The judge found that the testimony was relevant to Appellant’s mens rea and to his guilty knowledge of possession of marijuana. The judge also found the statement was an admission against interest.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex.R.Evid. 403. In conducting a balancing test, the trial court must weigh the testimony’s probativeness to see if it was substantially outweighed by the potential for unfair prejudice. See Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997); Massey v. State, 933 S.W.2d 582, 586 (Tex.App.--Houston [1st Dist.] 1996, no pet.). Factors to be considered include (1) the evidence’s inherent probative value, (2) its potential to impress the jury in some irrational but indelible way, (3) the amount of trial time the proponent needs to develop such evidence, and (4) the proponent’s need for the evidence. Montgomery, 810 S.W.2d at 389-90.
The first factor looks to probativeness, or how compelling the evidence serves to make a fact of consequence more or less probable. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). There is a presumption that relevant evidence is more probative than prejudicial. Santellan, 939 S.W.2d at 169. Although Appellant asserts that the testimony was irrelevant and lacked probative value as to whether he possessed the marijuana, his affiliation with a Mexican narcotics organization is relevant as to whether he knew the marijuana was concealed in the car. It also demonstrates motive and intent.
The second factor asks whether the evidence has a potential to impress the jury in some irrational but indelible way. Mechler, 153 S.W.3d at 441. Rule 403 does not exclude all prejudicial evidence; rather, it focuses only on the danger of “unfair” prejudice. Id. Unfair prejudice pertains only to relevant evidence’s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Id. Appellant argues that the testimony constituted highly prejudicial character conformity evidence and resulted in the jury’s rejection of his defense that he knew nothing about the marijuana.
The potential improper basis would be the use of affiliation with the narcotics organization to show that Appellant was a bad person and that he acted in conformity with his bad character. See Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002). However, there is no indication that the testimony had the potential to impress the jury in some irrational but indelible way or would cause “unfair” prejudice.
The third factor concerns the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense. Mechler, 153 S.W.3d at 441. Appellant contends that the trial was lengthened by admission of the testimony since a hearing had to be held outside the presence of the jury which distracted the jury.
Appellant objected to the elicitation of testimony from Officer Roberts and requested a hearing outside the presence of the jury. The trial court then dismissed the jury for lunch and held the hearing. After the jury returned, the State quickly elicited the testimony from the witness without taking needless time to develop the testimony. There is no indication that the testimony distracted the jury in any way from the indicted offense.
In determining need, the trial court examines the availability of other evidence to establish the particular fact of consequence, the strength of that other evidence, and whether the fact of consequence is related to an issue in dispute. Montgomery, 810 S.W.2d at 389-90. Appellant complains that the State had no need for the evidence since it offered the accomplice testimony of Drennon and the testimony did not corroborate Drennon’s testimony.
Contrary to Appellant’s contentions, the State needed the evidence to establish intent and motive and to show that Appellant had knowledge of the presence of the marijuana in the car. The testimony is corroborating in that it tends to connect Appellant to the offense. After evaluating all these factors, we conclude they weigh in favor of admissibility. We find no abuse of discretion in the admission of testimony regarding Appellant’s affiliation with a Mexican drug organization. Point of Error Two is overruled.
CORROBORATION OF ACCOMPLICE TESTIMONY
In Point of Error One, Appellant argues that his conviction cannot stand since the State failed to corroborate the accomplice testimony of Drennon. Appellant asserts that the non-accomplice testimony merely establishes that he was seated in the front passenger compartment of the vehicle where the marijuana was found. He claims that the State failed to prove he exercised care, control, and management over the drugs and knew that the matter possessed was drugs.
A person commits the offense of possession of marijuana if that person knowingly or intentionally possesses a usable quantity of marijuana. Tex.Health & Safety Code Ann. § 481.121(a)(Vernon 2003). The offense is a second degree felony if the amount of marijuana possessed is 2,000 pounds or less but more than fifty pounds. Tex.Health & Safety Code Ann. § 481.121(b)(5). Here, Appellant was convicted of second degree felony possession of marijuana. At trial, Drennon, an accomplice to the crime, testified for the State.
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 2005). We must eliminate from our sufficiency consideration the evidence offered by the accomplice and examine the other evidence to determine if there is incriminating evidence which tends to connect Appellant to the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999), cert. denied, 528 U.S. 1082, 120 S. Ct. 805, 145 L. Ed. 2d 678 (2000); Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1988). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462; Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991), cert. denied, 509 U.S. 922, 113 S. Ct. 3035, 125 L. Ed. 2d 722 (1993).
The mere presence of an accused in the company of the accomplice during the commission of the crime is not, by itself, sufficient to corroborate accomplice testimony. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996); Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App. 1992). However, proof that an accused was at or near the place where the crime occurred at or about the time that it happened, along with evidence of other circumstances, can be sufficient corroboration. Cox, 830 S.W.2d at 611. Other circumstances which, when coupled with the presence of the defendant, have been found to constitute sufficient corroborating evidence, include a defendant’s furtive behavior and flight from the scene. See Spratt v. State, 881 S.W.2d 65, 67 (Tex.App.--El Paso 1994, no pet.); Passmore v. State, 617 S.W.2d 682, 684-85 (Tex.Crim.App. 1981), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex.Crim.App. 1988).
Appellant was a passenger in the car where the marijuana was found. In fact, marijuana was hidden under the carpet of the front passenger seat floorboard where Appellant was seated. Although Appellant was cooperative and not overly nervous, when asked where he and Drennon were going, he gave a story that was inconsistent with Drennon’s. Appellant claimed that his aunt owned the car and he was planning to sell it to Drennon even though Drennon told Roberts he purchased the car from a neighbor.
When confronted with the marijuana, Appellant showed no surprise. After his arrest, he told Roberts that he was affiliated with a Mexican drug organization and could provide load and vehicle information. Even if the non-accomplice evidence would be insufficient by itself to establish Appellant’s guilt, it need only tend to connect Appellant to the offense, which it does. Point of Error One is overruled.
IMPROPER PROSECUTORIAL COMMENTS
In Point of Error Three, Appellant alleges that the prosecutor committed reversible error during closing argument of the punishment phase by arguing that Appellant had received two ten year sentences when he had in fact received only a probated sentence and deferred adjudication. He contends that the argument was not a reasonable deduction from the evidence.
In order to preserve a complaint regarding the prosecutor’s jury argument, the defendant must timely object at trial. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1173, 117 S. Ct. 1442, 137 L. Ed. 2d 548 (1997); Nixon v. State, 940 S.W.2d 687, 693 (Tex.App.--El Paso 1996, pet. ref’d). This timely objection requirement applies to every type of improper argument. See Cockrell, 933 S.W.2d at 89; Campos v. State, 946 S.W.2d 414, 416-18 (Tex.App.--Houston [14th Dist.] 1997, no pet.).
Here, Appellant failed to timely object. At the beginning of the prosecutor’s argument he mentioned that Appellant had two ten-year sentences before the sentence today without objection from Appellant. The prosecutor then explained the two exhibits admitted dealing with Appellant’s prior convictions. Only after the prosecutor explained why he was seeking a twelve-year sentence did Appellant object. Accordingly, Appellant failed to properly preserve error for our review. We overrule Point of Error Three and affirm the judgment of the trial court.
August 25, 2005
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)