NO. 12-02-00197-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
VINCENT DAVID REVILL, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Vincent David Revill appeals his jury conviction for possession of a controlled substance with intent to deliver or manufacture. The jury sentenced Appellant to forty-five years of imprisonment. In thirteen issues, Appellant contests the admissibility of certain evidence and complains of alleged errors occurring pretrial, the denial of his motions for mistrial, and charge error. We affirm.
Background
Based on information received from Robert Frazier, an informant, members of the Department of Public Safety’s SWAT team executed a search warrant at Appellant’s home. They found everything necessary to manufacture methamphetamine as well as several different containers holding varying amounts of methamphetamine. Appellant and another man, Melvin Jernigan, were arrested at the scene. At trial, Appellant’s defensive theory was ignorance, claiming that Jernigan had paid him $500.00 for the use of his house that day, without explaining why. The jury found Appellant guilty of possession of a controlled substance with intent to deliver or manufacture and sentenced him to imprisonment for forty-five years.
Pretrial Issues
Appellant’s Absence
In his first issue, Appellant asserts the trial court violated his right to be present at his trial by proceeding to trial in Appellant’s absence. He claims that this was error under the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of the Texas Constitution, and Article 33.03 of the Texas Code of Criminal Procedure. He argues that this error is not subject to harmless error review, but if it were, the error would warrant reversal. Appellant does not explain in what way he was harmed. He states that the record bears no affirmative indication that his absence was not harmful to him. He argues that the trial court compounded the error by commenting on Appellant’s absence and suggesting that Appellant was a dangerous man.
On March 18, 2002, a panel of prospective jurors from which two juries were to be chosen gathered in the trial court. After some general comments, the trial judge cautioned the veniremembers not to discuss “what may be going on in this courtroom.” He then called cause number 25822, State versus Revill. The State announced ready. Defense counsel informed the judge that he had not seen the defendant that morning. The trial judge explained that he planned to qualify the panel. He gave the venire general instructions and explained the statutory qualifications to be a juror and the allowable exemptions for declining jury duty. The judge excused six panel members: one had to take care of her sick father, two were ill, one could not speak English, one could not read, and one had previously been convicted of a felony. After admonishing the venire not to discuss the case, read newspapers, or watch the news, the judge recessed the panel until 9:00 a.m., March 20.
Under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution, the defendant must be present at all phases of the proceedings against him. Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001). Article 33.03 requires, in all felony prosecutions, the personal presence of the defendant “at the trial” unless he voluntarily absents himself after pleading to the indictment or after the jury has been selected. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989).
Here, the “proceeding” held in Appellant’s absence was merely qualification of the prospective jurors and a determination of who met statutory exemptions, a portion of jury selection not ordinarily considered part of “the trial.” Jasper, 61 S.W.3d at 423. However, because the prospective jurors had been assigned to Appellant’s case, we consider his trial to have begun during this process on March 18. Id. Thus, it was statutory and constitutional error for the trial court to proceed with the excuses and qualifications in Appellant’s absence. Id. Because this issue involves both nonconstitutional and constitutional error, we apply the standard of harm for constitutional error. Tex. R. App. P. 44.2(a); Jasper, 61 S.W.3d at 423. In the case of constitutional error, we need not reverse Appellant’s conviction if we determine that the error was harmless beyond a reasonable doubt. Id. If there is a reasonable likelihood that the error materially affected the jury’s deliberations, then the error was not harmless beyond a reasonable doubt. Id.
Appellant’s attorney was present during the proceedings. The details of his case were never mentioned. The trial court gave the usual, general instructions to the panel without commenting directly on Appellant’s case. The reasons for excusing the six jurors who were excused were all statutory. See Tex. Gov’t Code Ann. §§ 62.102(5), 62.102(7), 62.106(a)(7), 62.109(a) (Vernon 1998 & Supp. 2004). The trial court took no further action in the case until two days later when Appellant was present. At that time, Appellant was accorded the full opportunity of examining prospective jurors. Voir dire was completed and a jury was selected. We determine that Appellant’s absence during qualification of the jury did not materially affect the jury’s deliberations and was harmless. We overrule issue one.
Comments by and Actions of Trial Court
In his second issue, Appellant asserts the trial court erred by informing the jury that Appellant was absent and by raising his bond and issuing a warrant in front of the jury. He argues that the trial court rushed to condemn Appellant, underscoring his absence and insinuating that Appellant was in fact guilty because of this absence. He contends his due process rights were violated because the presumption of innocence was abrogated. He further argues that the trial court’s actions and commentary were tantamount to an express instruction that Appellant’s absence should be used against him.
Although Appellant was not present at the time of the trial court’s actions, his counsel was. However, counsel did not object at the time to the trial court’s actions or comments. Appellant has not preserved this complaint for review. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). We overrule issue two.
Courtroom Security
In his third issue, Appellant contends the trial court erred in commenting upon the additional security in the courtroom and inferring that it was needed because of Appellant. He argues that the trial court informed the jury that unprecedented security measures were being taken, Appellant was missing, and under no circumstances should the venire members expose themselves to media coverage. The implication, he asserts, is that Appellant is a man so dangerous and violent that previously unheralded security precautions were warranted and Appellant had taken or would take actions worthy of news coverage. He argues that these comments impaired the presumption of innocence in violation of his right to due process.
Appellant did not object to the trial court’s comments. Therefore, he has not preserved this issue for review. See id. We overrule issue three.
Leg Restraints
In his fourth issue, Appellant asserts the trial court erred in ordering him to wear leg restraints in front of the jury. He argues that requiring him to wear the restraints violated his due process rights and infringed on the presumption of innocence.
Prior to voir dire on the morning of March 20, the trial court held a hearing on the issue of whether Appellant should wear leg restraints while in the courtroom. The trial judge explicitly said that he could not tell that Appellant had restraints on his legs. He said it was impossible to see the restraints. The chief investigator for the Anderson County District Attorney’s office, Gary Thomas, testified. He explained that Appellant was arrested Monday. Arresting officers found several guns in the vehicle he was riding in, including several illegal sawed-off shotguns. Appellant had a .45 stuck in his belt and carried extra ammunition. That afternoon, officers executed a search warrant on Appellant’s residence. They found a homemade hoax bomb with trip wires running to the front door and into the house.
Thomas also testified that Appellant had previously threatened him and Chief of Police Pat Henderson. He explained that Appellant had placed a homemade hoax bomb near the probation office to lure Thomas and Henderson outside where he could shoot them. Thomas stated that he considers Appellant a high security risk. In his opinion, if Appellant is not restrained, it could result in injury to Appellant, jurors, and courthouse personnel. Thomas recommended that Appellant remain restrained during the trial.
The trial judge commented that he had been informed on several occasions in the past few days by law enforcement and a district judge that Appellant was a high security risk. He then reiterated the fact that the leg restraints were not visible and ordered that they remain on during the trial.
The harm a defendant suffers when the jury sees him in handcuffs or shackles is that his constitutional presumption of innocence is infringed. Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). All efforts should be made to prevent the jury from seeing the defendant in shackles, except where there has been a showing of exceptional circumstances or a manifest need for such restraint. Id. It is within the trial court’s discretion as to whether a defendant shall be tried in shackles. Id. On appeal, the appellate court determines whether the trial court abused its discretion by requiring the defendant to appear in restraints. Id.
Appellant failed to appear in court on the first day of his trial. He was arrested a few hours later. He was heavily armed at the time of his arrest. The trial court heard testimony that Appellant had plotted to kill law enforcement officers and was warned numerous times that Appellant was a high security risk. We conclude this constitutes a showing of a manifest need for Appellant to remain in shackles during the trial. See id.
Further, even if the trial court did abuse its discretion in ordering the leg restraints, we cannot say it caused Appellant harm. The trial court stated for the record that the restraints were not visible. Appellant does not direct us to evidence in the record that the jury actually observed the restraints. In the absence of evidence that the jury actually saw the shackles, we will not conclude that Appellant has been harmed. See id. at 283. We overrule issue four.
Admission of Evidence
Execution of Search Warrant
In his fifth issue, Appellant contends the trial court erroneously admitted evidence obtained in violation of the “knock and announce” rule. He complains that, instead of knocking and announcing their presence, officers executing a search warrant at his residence used a SWAT team type entry. Appellant asserts it is a violation of the Fourth Amendment to dispense with the knock and announce requirement solely because a felony drug search warrant is being executed. He argues that the State failed to present facts to show the police possessed reasonable suspicion that knocking and announcing were not viable measures. Therefore, Appellant continues, the search was unconstitutional and the contraband seized should not have been allowed into evidence.
We note first that Appellant did not make this complaint in the trial court. It was not addressed in his motion to suppress and no objection was made on this basis at the time the evidence was presented at trial. Accordingly, this issue has not been preserved. See Turner, 805 S.W.2d at 431.
However, our consideration of the merits of this issue reveals no error. Within the protection provided by the Fourth Amendment is the common law principle that police officers must knock and announce their presence before attempting a forcible entry into a home. See Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918, 131 L. Ed. 2d 976 (1995). The Fourth Amendment does not, however, require the police to knock and announce in all cases. Richards v. Wisconsin, 520 U.S. 385, 395, 117 S. Ct. 1416, 1422, 137 L. Ed. 2d 615 (1997). Police may make an unannounced entry if they have reasonable suspicion that the particular circumstances present a threat of physical violence or a likelihood that evidence will be destroyed. Id., 520 U.S. at 394, 117 S. Ct. at 1421. This burden is not high, but the police are required to meet it whenever the reasonableness of a no-knock entry is challenged. Id., 520 U.S. at 394-95, 117 S. Ct. at 1422.
Sergeant Jerry Powell, with the Texas Department of Public Safety, testified that they made a hard, fast entry when executing the search warrant at Appellant’s home because there were guns inside the residence. The officers could have reasonably suspected that there was a threat to their safety. This testimony supports a determination that the entry was reasonable under the circumstances. See Stokes v. State, 978 S.W.2d 674, 677 (Tex. App.–Eastland 1998, pet. ref’d). Therefore, the trial court did not err in allowing the seized contraband into evidence. We overrule issue five.
Plot to Kill Officers
In his sixth issue, Appellant contends that, at the punishment phase, the trial court erred in admitting testimony of Robert Thompson, Jr., an acquaintance of Appellant, who testified about an alleged plot by Appellant to kill police officers. He also complains of questions asked of Clyde Skeen, Appellant’s cousin and close friend. Before Thompson’s testimony, the State asked Skeen questions that Appellant argues were improper and asserts were asked merely to induce Appellant to take the stand and deny the plot. After Appellant testified, denying the existence of any such plot, the State presented Thompson, who testified that there was a plot to kill Police Chief Pat Henderson. Appellant argues that Thompson’s testimony was inadmissible for lack of proper notice as required by Texas Code of Criminal Procedure article 37.07, section 3(g). See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004). Further, Appellant argues that the evidence was not admissible as impeachment evidence because the State “set up the impeachment.” He asserts the State asked a series of improper questions designed to force Appellant to respond by testifying that he had never threatened any police officers. Finally, he contends Thompson’s testimony was inadmissible under Rule of Evidence 403 because its probative value was outweighed by the danger of unfair prejudice.
First, we consider whether Thompson’s testimony was proper rebuttal evidence. Appellant complains of three questions asked of State’s witness, Clyde Skeen. The prosecutor asked Skeen, “[Y]ou’re aware that he’s threatened the life of Chief Pat Henderson?” Skeen began to respond by saying, “Not specifically, but he said- -” He was cut off by defense counsel’s objection, which was based on improper notice of the State’s intention to use extraneous offense evidence. While the trial court was looking at the applicable rule, the prosecutor said, “We withdraw that.” The court then sustained the objection and instructed the jury to disregard the question. Later, the prosecutor asked Skeen, “You’re aware that Vince had at his house, had booby trapped his house?” Skeen answered, “No, sir, I was not aware that he had booby trapped his house.” Defense counsel then objected on the basis of having no notice of that act. The prosecutor withdrew the question and the trial court instructed the jury to disregard the question. The prosecutor then asked Skeen if he was aware that Appellant owns a machine gun. Skeen answered, “No, sir. I’m aware that he used to own an UZI [sic] years ago.” Counsel for the defense again objected on the basis of improper notice. The trial court sustained the objection and instructed the jury to disregard it.
Only the first question referred to the plot to kill police officers. The second and third questions do not implicate such a threat. Therefore, we fail to see a design that should force Appellant to testify regarding the alleged plot. Further, the trial court instructed the jury to disregard all three complained-of questions. We presume that an instruction to disregard will be obeyed by the jury. Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988). As those questions were not before the jury, Appellant had no need to respond to them.
Nonetheless, when Appellant took the stand, the second question his attorney asked him was, “Have you ever made any threats to kill a police officer in Anderson County?” Appellant answered, “No, sir.” He went on to explain that he believes the police department thinks he has “an ax to grind against them” for the death of his son. On cross-examination, the prosecutor asked Appellant, “Now, you said that you didn’t, you’ve never threatened to take Chief Henderson’s life?” Appellant responded, “No, sir.” After a defense objection, the prosecutor asked Appellant if he and Thompson had a plot to plant a hoax bomb that would lead to Appellant shooting Henderson. Appellant denied the existence of any such plan. After the defense rested, the State presented rebuttal testimony. Thompson took the stand and described the plan he and Appellant had to kill Pat Henderson and Gary Thomas, the District Attorney’s investigator.
The rule of admissibility of prior inconsistent statements should be liberally construed, and the trial judge has the discretion to receive any evidence that gives promise of exposing a falsehood. Staley v. State, 888 S.W.2d 45, 49 (Tex. App.–Tyler 1994, no pet.). A witness’s prior inconsistent statement is admissible for purposes of impeachment. Id. The State questioned Appellant about the details of the incident. Appellant unequivocally denied it ever happened. We conclude the trial court did not err in allowing the State to impeach Appellant by using a rebuttal witness to testify to his prior oral inconsistent statement. See Tex. R. Evid. 613; Broden v. State, 923 S.W.2d 183, 189 (Tex. App.–Amarillo 1996, no pet.).
Extraneous offense evidence introduced as rebuttal testimony is not subject to the notice requirement of article 37.07, section 3(g). Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App.), cert. denied, 537 U.S. 1005, 123 S. Ct. 495, 154 L. Ed. 2d 403 (2002). Because Thompson’s testimony was rebuttal evidence, Appellant’s notice arguments fail.
Finally, Appellant’s complaint pursuant to Rule of Evidence 403, that Thompson’s testimony is inadmissible because its probative value is outweighed by the danger of unfair prejudice, was not preserved for review. He made no Rule 403 complaint at trial. See Turner, 805 S.W.2d at 431. We overrule issue six.
Evidence of Other Drug Activity
In his tenth issue, Appellant contends the trial court erred in admitting evidence of other drug activity related to methamphetamine. In his eleventh issue, Appellant asserts the trial court erred in admitting evidence of other drug activity related to marijuana. Appellant complains that, during the guilt-innocence phase, by cross-examination of Appellant and through rebuttal testimony of the informant, the State presented evidence that he provided someone with methamphetamine, sold and cooked methamphetamine on other occasions, possessed the ingredients and equipment to manufacture methamphetamine, and possessed and used marijuana. He argues that the evidence was offered to prove character conformity, had no probative value, and was unduly prejudicial.
a. Applicable Law
The trial court has wide discretion in deciding whether to admit evidence of extraneous offenses. Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex. Crim. App. 1991) (op. on reh’g). We will not disturb the trial court’s decision to admit evidence of extraneous offenses absent an abuse of discretion. Id. at 391. As long as the trial court’s ruling is within the zone of reasonable disagreement, an appellate court will not reverse that ruling. Id. As a general rule, to prevent an accused from being prosecuted for some collateral crime or misconduct, the State may not introduce evidence of bad acts similar to the offense charged, even if relevant. Tex. R. Evid. 404(b). However, this type of evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Even if the evidence is relevant and falls within a permissible exception under Rule 404(b), the evidence may still be excluded by the trial court under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d at 387.
In addition to the explicit exceptions set out in Rule 404(b), extraneous offense evidence may be admissible as contextual evidence. Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). There are two types of contextual evidence: (1) evidence of other offenses connected with the primary offense, referred to as same transaction contextual evidence; and (2) general background evidence, referred to as background contextual evidence. Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991). Same transaction contextual evidence is admissible as an exception under Rule 404(b) where such evidence is necessary to the jury’s understanding of the charged offense. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993) (op. on reh’g). Same transaction contextual evidence is admissible when the charged offense would make little or no sense without also bringing in the same transaction evidence. Id. It is admissible because in narrating the crime for which the defendant is on trial, it is impracticable to avoid describing the contextual evidence. Mayes, 816 S.W.2d at 86 n.4. Such evidence provides the jury information essential to understanding the context and circumstances of events that are blended or interwoven. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). In contrast, background contextual evidence is not admissible as one of the “other purposes” for which evidence may be admitted under Rule 404(b) when it includes an impermissible character component. Mayes, 816 S.W.2d at 88.
b. The Record
Appellant has referred us to a total of twenty-seven pages of testimony, argument, and voir dire of a witness without specifying the exact questions he finds offensive. Thirteen of those pages contain testimony elicited outside the presence of the jury and the accompanying objections, argument, and ruling. Within this portion of the record, no extraneous offense evidence was admitted before the jury. Thus, this portion of the record presents no error for our consideration.
c. Drug Use
On cross-examination of Appellant, the prosecutor asked him if he uses marijuana. Appellant answered, “I have.” His counsel’s objection, which was sustained, was late. The prosecutor then asked Appellant, “Do you use methamphetamine?” He answered, “No, sir.” His counsel then made the same objection. Any complaint as to these two questions was waived because they came after the answer. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). The prosecutor then asked Appellant if he had ever used methamphetamine. Appellant said he had tried it once, two or three years ago. Appellant lodged no objection to this question and his complaint is therefore waived. See id.
d. Marijuana
The prosecutor requested a bench conference to ask permission to go into extraneous matters. Defense counsel’s objection was overruled as to any use of drugs. Later, the prosecutor showed Appellant State’s Exhibit Number 87 and asked if he knew what it was. Appellant said it “[l]ooks like marijuana.” Defense counsel objected because there had been no testimony by the lab technician identifying the substance as marijuana and no testimony that Appellant was qualified to identify the substance. The trial court instructed the jury that there had been no determination as to what that substance was. The prosecutor then asked Appellant, “If this is marijuana, do you know they found it at your house?” Appellant answered, “If you say so.” The prosecutor then asked, “You said you smoke occasionally?” Appellant said, “I have before.” Then there was an additional exchange about whether or not the marijuana was Appellant’s.
Evidence that Appellant possesses one type of controlled substance, marijuana, could arguably make it more probable that Appellant would also be inclined to be in possession of another type of illegal substance, such as methamphetamine. See Rogers, 853 S.W.2d at 32. Therefore, it was within the zone of reasonable disagreement for the trial court to find that the evidence pertaining to the marijuana found during the search was relevant. See id. at 32-33. Because the marijuana in Exhibit Number 87 was found at the time of Appellant’s arrest for the instant offense, it is same transaction contextual evidence. However, in describing the offense of possession of methamphetamine, it is not impracticable to avoid describing possession of marijuana. Therefore, the evidence of the marijuana found at Appellant’s residence during the search was not admissible. The trial court erred in allowing this line of questioning. See id. at 33. We must next consider whether the error is harmless.
The question of whether a court erred in admitting evidence of an extraneous offense is an evidentiary issue that does not rise to constitutional levels. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). We reverse only if we find that the error affected the substantial rights of the defendant. Tex. R. App. P. 44.2(b). A substantial right is violated when the error made the subject of the Appellant’s complaint 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). Here, evidence that Appellant possessed a small amount of marijuana at the time of his arrest played a minor role in the prosecution for possession of methamphetamine with intent to deliver or manufacture. Very little time was spent on that subject, and the State never mentioned the marijuana during its closing argument. The State never proved the substance was actually marijuana or that it was found in Appellant’s residence during the search on the day of his arrest. We conclude that the trial court’s error in admitting the evidence of the marijuana did not have a substantial or injurious effect or influence on the jury’s verdict and was, therefore, harmless. See id.
e. Other Methamphetamine Offenses
Next, Appellant complains of a series of questions the prosecutor asked him about his experiences with methamphetamine. The prosecutor asked Appellant if he gave Robert Frazier, the informant, his first dose of methamphetamine. Defense counsel objected on the basis that it referred to extraneous offenses. The objection was overruled but Appellant never answered. The prosecutor then asked if Appellant had made methamphetamine on numerous occasions. Defense counsel made the same objection, which was overruled. Appellant answered in the negative. These two questions refer to background contextual evidence, which is not admissible. Mayes, 816 S.W.2d at 88. We find the questions harmless. Frazier had previously insinuated that Appellant introduced him to methamphetamine and was the first to provide him with the drug. As we shall discuss, Frazier also later testified in rebuttal that it was Appellant who first provided him with methamphetamine and that he had seen Appellant manufacture methamphetamine several times. Because this evidence was properly introduced in rebuttal, any reference to it during cross-examination was harmless. King, 953 S.W.2d at 271.
The prosecutor then asked Appellant if he had made methamphetamine with Robert Frazier and another person. Appellant answered no and maintained that he had never made methamphetamine. No objection was voiced. Any error would be waived. See Lagrone, 942 S.W.2d at 618. Moreover, inasmuch as this question could be referring to the offense for which Appellant was on trial, we see no error.
The prosecutor asked Appellant if he had made methamphetamine and given it to Robert Frazier on other occasions. Appellant answered no. The prosecutor then asked if Appellant had given another named individual methamphetamine. Appellant again answered no. There were no objections to these two questions. Therefore, any error was waived. See id.
f. Rebuttal Testimony
The State called Robert Frazier in rebuttal. He testified that Appellant gave him his first dose of methamphetamine and then he got the drug from Appellant more than twenty times. He explained that he obtained methamphetamine from Appellant at Appellant’s house and Appellant used it with Frazier. He has seen other people buy methamphetamine from Appellant at Appellant’s house on many occasions. Frazier saw Appellant manufacture methamphetamine several times at Appellant’s house. Appellant discussed with Frazier how to make methamphetamine and the fact that he had made it on many occasions when Frazier was not there. Frazier testified that Appellant had methamphetamine with a man named John Carroll Byrd, who obtained some chemicals for Appellant. Appellant asked Frazier and others to get chemicals for him that are used in making methamphetamine. Prior to the day of the raid, Frazier had seen some chemicals and scales at Appellant’s house.
The State argues that this testimony was properly admitted to rebut Appellant’s defensive theory. We agree. Appellant took the stand in his own defense and denied any knowledge of the crime with which he was charged. He claimed that Jernigan had called him and offered to pay him $500.00 for the use of his house for a few hours. Appellant testified that Jernigan brought all the drugs and lab items used to make methamphetamine. He denied cooking methamphetamine or handling anything. He was merely doing his laundry that day. He claimed that he did not want to know what Jernigan was doing and is only “guilty of stupidity.” The trial court explained that it would allow the rebuttal testimony because Appellant opened the door by saying he was ignorant about everything having to do with methamphetamine.
Rebuttal of a defensive theory is one of the permissible purposes for which relevant extraneous evidence may be admitted under Rule 404(b). Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Frazier’s rebuttal testimony is relevant because it tends to make the fact that Appellant was involved in cooking methamphetamine at the time of the raid more or less probable. See Swarb v. State, 125 S.W.3d 672, 683 (Tex. App.–Houston [1st Dist.] 2003, pet. dism’d).
Appellant also challenges the admissibility of this evidence under Rule 403, complaining that the evidence should not have been admitted because its prejudicial effect outweighed its probative value. See Tex. R. Evid. 403. Only unfair prejudice provides the basis for exclusion of relevant evidence. See Montgomery, 810 S.W.2d at 389. Unfair prejudice arises from evidence that has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one. Id. A presumption exists that relevant evidence will be more probative than prejudicial. Id. In determining whether the prejudicial effect of evidence substantially outweighs its probative value, several factors should be considered: (1) how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence; (2) the potential the “other crime, wrong, or act” has to impress the jury in some irrational but indelible way; (3) how much trial time the proponent needs to develop evidence of the extraneous misconduct; and (4) how great is the proponent’s need for the extraneous transaction. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996).
Appellant’s entire defense was that he knew nothing on the subject of methamphetamine. Evidence of a pattern of manufacture and sales of methamphetamine constitutes strong, probative evidence that Appellant’s claim of ignorance is false. However, the extraneous offenses were no more heinous than the instant offense. Thus, the evidence was compelling and not likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the extraneous offense evidence to its proper purpose. See Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996). Frazier’s rebuttal testimony is contained in slightly more than six pages of the 154 pages of testimony in the guilt-innocence phase of the trial. The State did not spend an undue amount of time presenting this evidence. After the State rested its case, Appellant took the stand and articulated his defense that Jernigan alone was manufacturing methamphetamine at Appellant’s house on the day of the raid. The rebuttal evidence was essential to show the defensive theory lacked merit. We conclude the trial court did not abuse its discretion by allowing Frazier’s rebuttal testimony. We overrule issues ten and eleven.
Motions for Mistrial
In issues seven, eight, and nine, Appellant asserts the trial court erred in denying three separate motions for mistrial he made after his objections to three of the State’s questions were sustained. He argues that the State knowingly asked objectionable questions to place highly prejudicial matters in front of the jury. He contends the motions to disregard were insufficient to remove the taint of the improper questions. Appellant argues that the conduct of the prosecutor violated his Fourteenth Amendment due process rights and, therefore, his motions for mistrial should have been granted.
The denial of a motion for mistrial is reviewed for an abuse of discretion. See Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391. As a general rule, any error in admitting improper testimony may be cured by the trial court’s withdrawal of the evidence and an instruction to the jury to disregard. Cavender v. State, 547 S.W.2d 601, 603 (Tex. Crim. App. 1977). Mistrial is an extreme remedy that is appropriate only when the objectionable event is so emotionally inflammatory that a curative instruction is not likely to prevent the jury from being unfairly prejudiced against the defendant. Id. Testimony referring to extraneous offenses can be rendered harmless by an instruction to disregard, unless it is so clearly calculated to inflame the minds of the jury and is of such a nature as to suggest the impossibility of withdrawing the impression produced. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988).
The three complained-of questions came during the State’s questioning, at the punishment phase, of its own witness, Clyde Skeen. Just before the first question at issue, Skeen had testified that Appellant was afraid that local law enforcement was going to kill him or have him killed and that Appellant has a grudge against the police. The prosecutor then asked Skeen if he was aware that Appellant had threatened the life of Chief Pat Henderson. Appellant objected on the basis of improper notice specifically asserting that the notice did not mention a threat and did not indicate the county where the alleged offense was committed. However, the State’s amended notice lists the incident the State was referring to. The notice stated that “[o]n 02-14-02, supplied Robert Thompson with components for Hoax bomb to be placed between Adult Probation Department and Dry Cleaners, in order to draw Pat Henderson, Chief of Police, to the scene and shoot him with a Deer Rifle.” Although the county is not named, the notice provided enough information for Appellant to ascertain the location. Thus, the State’s notice substantially complies with the statutory requirements. See James v. State, 47 S.W.3d 710, 714 (Tex. App.–Texarkana 2001, no pet.). As Appellant received proper notice, the trial court erred in sustaining his objection. There can be no error in the trial court’s denial of his motion for mistrial.
Skeen was with Appellant when he was arrested on Monday, March 18. The prosecutor was eliciting testimony about that event when he asked Skeen the second of the complained-of questions, whether he was aware that Appellant had booby trapped his house. Appellant objected on the basis that no notice was given. The State’s amended notice lists the following as item seventeen: “On 03-18-02, Possession of Hoax Bomb.” Item eighteen lists a related offense: “On 03-18-02, Possession of components for Bomb.” The prosecutor was attempting to elicit information on these items. Therefore, Appellant received notice. The State withdrew the question and the jury was instructed to disregard unnecessarily. The trial court did not err in denying Appellant’s motion for mistrial.
Immediately after the last motion was denied, the prosecutor asked Skeen the third of the complained-of questions, whether he was aware that Appellant owns a machine gun. Appellant’s objection, which was on the basis of insufficient notice, came after Skeen answered. Item nine on the State’s amended notice lists the following: “Possession of a Machine gun not registered in the national firearms registration and transfer record as required by the secretary of the us treasury.” Item ten names “Possession of a Prohibited Weapon - Machine Gun; on or about 9-5-00 (Anderson County). This notice substantially complies with the statute. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). The objection should not have been sustained, and the trial court did not err in denying Appellant’s motion for mistrial.
Even if notice had been insufficient, rendering the trial court’s rulings on the objections correct, we would not find an abuse of discretion in denying the three motions for mistrial. The alleged errors occurred in the punishment phase and did not involve drug offenses. The questions indicated that Appellant made empty threats against law enforcement and possessed a prohibited weapon. The jury had been told during the guilt-innocence phase that Appellant was almost always armed and kept weapons at his residence. We conclude that the questions did not affect the jury to the extent they were unable to disregard them as instructed. See Kemp, 846 S.W.2d at 308. We overrule issues seven, eight, and nine.
Jury Instructions
In his twelfth issue, Appellant contends the trial court erred in failing to instruct the jury at the guilt-innocence phase that any extraneous offenses must be proven beyond a reasonable doubt. In his thirteenth issue, Appellant asserts that the trial court erred in failing to give the jury a limiting instruction at the guilt-innocence phase on the use of extraneous offenses. He argues that the failure to so instruct violates his due process rights under the Fourteenth Amendment to the federal constitution.
Rule of Evidence 105(a) provides as follows:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
Tex. R. Evid. 105(a). Where evidence is admissible for a limited purpose and the court admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction. Abdnor v. State, 808 S.W.2d 476, 478 (Tex. Crim. App. 1991). The request for the limiting instruction must be made at the admission of the evidence. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). Further, if a defendant, during the guilt-innocence phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction. Ex parte Varelas, 45 S.W.3d 627, 631 (Tex. Crim. App. 2001).
Here, Appellant never requested a limiting instruction or an instruction on the burden of proof. He has therefore waived any complaint about the absence of such instructions. See Tex. R. Evid. 105(a); Ex parte Varelas, 45 S.W.3d at 631. We overrule issues twelve and thirteen.
Conclusion
Appellant has raised no reversible error. We affirm the trial court’s judgment.
DIANE DEVASTO
Justice
Opinion delivered June 23, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 23, 2004
NO. 12-02-00197-CR
VINCENT DAVID REVILL,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd Judicial District Court
of Anderson County, Texas. (Tr.Ct.No. 25822)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed, and that this decision be certified to the court below for observance.
Diane DeVasto, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
THE STATE OF TEXAS
M A N D A T E
TO THE THIRD JUDICIAL DISTRICT COURT OF ANDERSON COUNTY, GREETINGS:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 23rd day of June, 2004, the cause upon appeal to revise or reverse your judgment between
VINCENT DAVID REVILL, Appellant
NO. 12-02-00197-CR and Tr. Ct. Case 25822
Opinion by Justice Diane DeVasto.
THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words:
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed, and that this decision be certified to the court below for observance.
WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200_.
CATHY S. LUSK, CLERK
By:_______________________________
Deputy Clerk