IN THE
TENTH COURT OF APPEALS
No. 10-07-00215-CR
Charles Lester,
Appellant
v.
The State of Texas,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F40872
MEMORANDUM Opinion
Charles Lester was charged with two counts of possession of a controlled substance, cocaine and methamphetamine, with the intent to deliver. A jury found him guilty of the lesser offenses of possession of a controlled substance, cocaine and methamphetamine. The jury found an enhancement paragraph to be true and assessed punishment at 85 years in prison. We affirm.
After conducting surveillance on Lester’s residence, law enforcement officers obtained a search warrant and entered the residence. In the residence, they found scales, baggies, a drug ledger, a loaded shot gun, over $1400 in cash, cocaine, and methamphetamine. The cocaine totaled 114.81 grams and the methamphetamine totaled 7.87 grams. Lester was arrested at the residence and admitted that the drugs found were his and that he had the drugs to sell.
Hearsay
In his first issue, Lester asserts that the trial court erred in admitting testimony by N.H. Laseman, a deputy chief with the Cleburne Police Department, over Lester’s hearsay objection. Specifically, Lester complains about Laseman’s testimony that he became familiar with 1308 South Brazos[1] because neighbors were complaining about drug activity and that drugs were being sold in the street.
Testimony by an officer that he went to a certain place or performed a certain act in response to generalized "information received" is normally not considered hearsay because the witness should be allowed to give some explanation of his behavior. Poindexter v. State, 153 S.W.3d 402, 408 n. 21 (Tex. Crim. App. 2005). But details of the information received are considered hearsay and are inadmissible-unless the officer's conduct has been challenged, for instance, as lacking probable cause. Id. The appropriate inquiry focuses on whether the "information received" testimony is a general description of possible criminality or a specific description of the defendant's purported involvement or link to that activity. Id. Laseman’s testimony that he became familiar with 1308 South Brazos because neighbors were complaining about drug activity and that drugs were being sold in the street is a general description of “possible criminality” and is not hearsay. Therefore, the trial court did not err in overruling Lester’s objection. His first issue is overruled.
Lester also contends that Laseman’s testimony regarding complaints that Lester was buying stolen property and selling drugs, that drug users and women were coming and going from the residence, and that burglaries were occurring in the area that had not happened before, was hearsay. However, Lester failed to preserve this complaint for our review because he did not object to any of this testimony. Tex. R. App. P. 33.1; Martinez v. State, 98 S.W.3d 189, 192 (Tex. Crim. App. 2003). His second issue is overruled.
Lester further complains about Laseman’s testimony regarding information he received that Lester possibly bought stolen air conditioners. Lester’s objection was sustained. He did not further pursue his objection to an adverse ruling. To preserve a complaint for review, a defendant must receive an adverse ruling on his objection. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991); Darty v. State, 709 S.W.2d 652 (Tex. Crim. App. 1986). Therefore, Lester failed to preserve his complaint because he did not receive an adverse ruling on his objection. Issue three is overruled.
In his fourth issue, Lester argues that testimony from Adam King, a supervisor with the S.T.O.P. Special Crimes Unit, that Lester traded drugs for sex was inadmissible hearsay. Lester objected to King’s testimony and the objection was overruled. However, Lester elicited the same testimony later from King. Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. Lucero v. State, 246 S.W.3d 86, 102 (Tex. Crim. App. 2008); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Lester’s fourth issue is overruled.
Extraneous Offense Evidence
In his fifth and final issue, Lester argues that the trial court erred in admitting into evidence a shotgun found in the master bedroom of Lester’s residence. Specifically, he contends the testimony about the shotgun and the admission of the shotgun itself were inadmissible extraneous offense evidence.
The State initially asserts that Lester failed to preserve this issue because he did not continue to object to the testimony about the shotgun and did not object when the shotgun was admitted into evidence. With two exceptions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury. Id. Lester requested and obtained a hearing outside the presence of the jury regarding the admissibility of the shotgun. After the hearing, the trial court overruled his objections. Thus, his issue as to the admission of the shotgun is preserved.
Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005); accord Gilbert v. State, 808 S.W.2d 467, 471-72 (Tex. Crim. App. 1991). A trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005); accord Montgomery v. State, 810 S.W.2d 372, 391-392 (Tex. Crim. App. 1991). We assume though, without deciding, that the trial court erred in admitting evidence of the shotgun and move to a harm analysis.
Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." Tex. R. App. P. 44.2(b). Under that rule, we may not reverse for non-constitutional error if, after examining the record as a whole, we have a fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). The erroneous admission of an extraneous offense is non-constitutional error. Coleman v. State, 188 S.W.3d 708, 726 (Tex. App.—Tyler 2005, pet. ref'd); see Herrera v. State, No. 10-06-00181-CR, 2007 Tex. App. LEXIS 910, *12 (Tex. App.—Waco Feb. 7, 2007, no pet.) (mem. op.).
Lester was charged with possessing cocaine and methamphetamine with the intent to deliver those drugs. Even with the additional evidence of a vicious dog kept by Lester, a surveillance camera outside his residence, scales, baggies, and a drug ledger, the jury found him guilty of the lesser offenses of possession of cocaine and methamphetamine. The jury did not find that he had the intent to deliver the drugs.
Lester argues that his lengthy term of confinement was a result of the admission of the shotgun. We do not agree. Although the State reintroduced all the testimony and evidence from the guilt/innocence phase, the fact that Lester had “guns” was only mentioned in passing in the opening portion of the State’s final argument. What possibly influenced the jury in their assessment of an 85 year prison term was that Lester had been previously convicted twice for possession with intent to deliver a controlled substance. He was placed on probation for one of the convictions, which was revoked. The jury also found the enhancement paragraph of a conviction for possession of a controlled substance to be true.
After reviewing the record as a whole, we have a fair assurance that the admission of the shotgun did not have a substantial and injurious effect or influence on the jury’s verdict. Lester’s fifth issue is overruled.
Having overruled each of Lester’s issues on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment with a note)
Affirmed
Opinion delivered and filed August 6, 2008
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* “(Because I read Poindexter and Schaffer v. State, 777 S.W.2d 111 (Tex. Crim. App. 1989), upon which Poindexter relies, differently than the majority, I believe the trial court erred in allowing hearsay statements of Officer Laseman into evidence. Based on a review of the entire record, however, I would find the error harmless, so I concur in the judgment.)”
[1] This is Lester’s residence.
ly: 'CG Times', serif"> Relators' motion alleged that the Agency Agreement was governed by the FAA because the subject of the contract involves interstate commerce. Attached to the motion is Pugh's affidavit stating that the Agreement "evidences a transaction involving commerce among the several States because the insurance policies made the subject of the Agency Agreement were issued to Texas residents by Metropolitan, a Rhode Island Corporation." Harmon did not controvert the affidavit; thus, the FAA applies to the agreement. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269-70 (Tex. 1992) (orig. proceeding).
We next look to whether Harmon's claims are within the scope of the Agency Agreement. As we have noted, Harmon alleges in three causes of action that Relators: (1) negligently misrepresented their willingness to write insurance for his clients; (2) tortiously interfered with his prospective business relations with existing clients who would have otherwise continued to procure insurance through Harmon; and (3) conspired to violate section 21.11-1 of the Texas Insurance Code by applying economic coercion to terminate the Agency Agreement by mutual agreement rather than by Relators' unilateral action.
Harmon asserts that these causes of action are "separate and distinct" from the claims arising out of Relators' termination of the agreement. He says that Relators have "committed torts that will leave [his] clients without insurance" and that forcing his clients to change insurance carriers has caused and will cause his clients to place their insurance with his competitors. Relators argue that, but for the Agency Agreement, there would be no disputes between the parties.
Under the FAA, any doubts about whether the claims fall within the scope of the agreement must be resolved in favor of arbitration. Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995) (orig. proceeding) (citing Moses H. Cone Memorial Hosp., 460 U.S. at 24-25, 103 S. Ct. at 941-42). The policy in favor of enforcing arbitration agreements is so compelling that a court should not deny arbitration "unless is can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue." Id. (citing Neal v. Hardee's Food Sys., Inc., 918 F.2d 34, 37 (5th Cir. 1990)). In determining whether a claim falls within the scope of an arbitration agreement, we focus on the factual allegations of the complaint rather than the legal causes of action asserted. Id. at 900 (citing Jack B. Anglin Co., 842 S.W.2d at 271). The burden was on Harmon to show that his claims fell outside the scope of section X of the agreement. See id. Harmon does not dispute that he has arbitrable claims—the termination based on "unfavorable property loss experience" and Relators' failure to comply with the Insurance Code. However, he argues that his claims of negligent misrepresentation, tortious interference, and conspiracy do not arise "out of and under" the agreement. Looking at the factual allegations in Harmon's petition, we cannot conclude with "positive assurance" that the claims alleged are not "factually intertwined" with the arbitrable claims. Id.
Thus, Relators have established that the Agency Agreement exists under the FAA and that the claims raised are within the scope of that agreement. Respondent had no discretion but to compel arbitration and stay the proceedings pending arbitration. Cantella, 924 S.W.2d at 944-45.
We conditionally grant the writ of mandamus and direct Respondent to order that all claims proceed to arbitration. Because we are confident that Respondent will comply with our decision, the writ will issue only if he fails to do so.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Writ of mandamus conditionally granted
Opinion delivered and filed November 20, 1996
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