NO. 12-06-00080-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
VICTOR THOMAS, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Victor Thomas appeals his conviction for possession of a controlled substance. In seven issues, he contends that the evidence is legally and factually insufficient to support his conviction and that the trial court made errors in admitting evidence. We affirm.
Background
Appellant and Melton McMorris were traveling through Smith County, Texas on Interstate 20 in an eighteen wheel tractor trailer. McMorris was driving. Appellant owned the tractor, and McMorris owned the trailer. McMorris had filed papers with the State of Mississippi the day before, registering the tractor and the trailer in his name and listing Appellant as the owner of the tractor. A Smith County sheriff’s deputy pulled the men over after he observed the driver of the truck commit traffic violations. After stopping the truck, he smelled marihuana from somewhere in the vicinity of the trailer, and a dog trained to detect illegal drugs was brought to the scene. The dog alerted to the presence of illegal drugs in the trailer, and the officer opened the trailer. The police found the trailer virtually empty, but with what looked like brand new decking on the walls of the trailer. Upon further inspection, the police found a secret compartment built inside the front wall of the trailer. Inside a container behind the false wall they found at least 1,800 pounds of marihuana and approximately twenty kilograms of cocaine. One of the officers asked Appellant how much the narcotics weighed. He said, “I can’t even begin to tell you.”
A Smith County grand jury indicted Appellant and McMorris for the felony offense of possession of cocaine in an amount of more than 400 grams. A trial was held, and Appellant pleaded not guilty. The jury found Appellant guilty. After a separate punishment hearing, the jury assessed punishment at fifty–five years of imprisonment. This appeal followed.
Motion to Suppress
In his first issue,1 Appellant argues the initial traffic stop was illegal and that the trial court should have granted his motion to suppress the evidence for that reason.
Standard of Review
We review a trial court’s ruling on a motion to suppress in the light most favorable to the ruling. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). A trial court judge is uniquely situated to observe the demeanor and appearance of a witness and to make factual determinations. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Therefore, the trial court is the sole trier of fact, and we afford almost total deference to the trial court’s factual conclusions when reviewing a ruling on a motion to suppress. See Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We afford the same deference to the trial court’s rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). We review de novo wholly legal conclusions as well as mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. The trial court’s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 855–56; Villarreal, 935 S.W.2d at 138.
Applicable Law and Analysis
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. The Texas Constitution contains a similar prohibition. See Tex. Const. art. I, § 9. A warrantless search is unreasonable unless it falls within certain specific exceptions. See Flippo v. West Virginia, 528 U.S. 11, 13, 120 S. Ct. 7, 8, 145 L. Ed. 2d 16 (1999); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). One such exception is that a law enforcement officer may stop a vehicle if the officer observes the driver of the vehicle commit a traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (citing Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996)).
In this case, the officer testified that he observed the driver of the tractor trailer commit three traffic offenses. Specifically, the officer testified, and the trial court found, that the driver drove on the shoulder, Tex. Transp. Code Ann. § 545.058 (Vernon 2006), did not maintain a safe speed, Tex. Transp. Code Ann. § 545.363 (Vernon 2006), and did not have proper mudflaps on the vehicle. Tex. Transp. Code Ann. § 547.606 (Vernon 2006).
McMorris testified at a hearing on the motion to suppress. His testimony did not contradict the officer’s testimony in a dramatic fashion, although he did state that the photograph of the mudflap was different than he remembered it. He also testified that the flap, as it was depicted in a photograph, was a violation of the statute. Texas Transportation Code, Section 547.606 provides, inter alia, that mudflaps are to be of a type prescribed by the Texas Department of Transportation. The department has promulgated rules requiring that “safety guards or flaps” be “rigid enough to prevent slush, mud, or gravel being transmitted from the vehicle’s rear wheels to the windshield of the following vehicle” and “not split or torn to the extent that [they are] ineffective.” 37 Tex. Admin. Code § 21.1(g)(7), (8) (West 2007). The officer testified that the torn mudflap was a concern because rocks and debris could go through a tear and strike a vehicle. He also expressed concern that the flap itself, or some part of it, could come loose and strike a vehicle. The first concern is sufficient to support the ruling of the trial court. Appellant argues that the officer’s testimony was ambiguous as to whether he was testifying about the flap on the very back of the trailer or the back of the tractor and that he discovered the defect only after stopping the vehicle. These are factual determinations, and we defer to the trial court’s resolution of these issues.
With respect to the failure to maintain a safe speed, the relevant statute provides that an “operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” Tex. Transp. Code Ann. § 545.363(a). The officer testified that he observed the truck slow rapidly from sixty–five miles an hour to fifty miles an hour, that there were eight or nine cars behind the vehicle, and that those vehicles had to slow and apply their brakes. The State argues that the trial court should be sustained on this issue because it was the officer’s “undisputed opinion” that this action was a violation of Section 545.363. This argument is unpersuasive. The court of criminal appeals has held that an officer’s conclusion that the law had been violated is not sufficient for the State to carry its burden to show an exception to the general requirement for warrant. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Rather, there must be specific, articulable facts from which a court can assess whether the officer reasonably concluded that a person actually was, had been, or soon would have been engaged in criminal activity. Id.
We defer to the trial court’s factual findings, and so we will accept the officer’s testimony that there was “traffic that was behind him that was flowing at the same speed as him, and then he slowed down, coming up on me, and the cars [were] having to hit their brakes,” that the reduction in speed was “pretty rapid,” and that there were eight or nine cars behind the vehicle. Pursuant to Ford, we do not credit his conclusory statements about the statute being violated because they provide no specific or articulable facts from which to find that the State had proven a violation of the law.2 The question then is whether slowing from sixty–five miles an hour to fifty and causing eight or nine cars to brake is impeding the normal and reasonable movement of traffic.
In Moreno v. State, 124 S.W.3d 339, 346–47 (Tex. App.–Corpus Christi 2003, no pet.), the court of appeals held that a reduction of speed to twenty–five miles per hour in a forty–five miles per hour zone which caused the medium to heavy traffic in the area to back up while the cars behind the driver waited for the other lane of traffic to clear was a violation of the statute. In Richardson v. State, 39 S.W.3d 634, 638–39 (Tex. App.–Amarillo 2000, no pet.), the court held that the statute was not violated because there was no proof of any traffic that was impeded by a slow driver. See also Davy v. State, 67 S.W.3d 382, 392–93 (Tex. App.–Waco 2001, no pet.). And in United States v. Coronado, 480 F. Supp. 2d 923, 928 (W.D. Tex. 2007), a federal trial court applying Texas law held that the government failed to show reasonable suspicion that a driver had impeded traffic because there was no evidence of how long the officer observed any backup of cars behind the vehicle, and no evidence that the vehicle, which was briefly traveling twelve miles under the posted speed limit, was impeding the normal and reasonable movement of traffic.
Although Coronado is not binding authority, it is persuasive in this case. This is not a case where the vehicle was stopped in the road. See, e.g., State v. Rivenburgh, 933 S.W.2d 698, 702 (Tex. App.–San Antonio 1996, no pet.); State v. Green, 773 S.W.2d 816, 818 (Tex. App.–San Antonio 1989, no pet.). The relevant testimony was that eight or nine cars had to apply their brakes when the truck decelerated from sixty–five miles an hour to fifty. In some instances this could impede the “normal and reasonable movement of traffic,” but we do not think the transportation code is to be so narrowly construed that a driver breaks the law every time he decelerates and causes those behind him to brake. Application of brakes and overpassing of slower traffic are part of the normal flow of traffic. There was no testimony that traffic was backed up or stopped, or that the other drivers were impeded beyond the ordinary and reasonable flow of traffic. The officer’s conclusory statements that the driver violated the law cannot be a basis to affirm the trial court’s ruling. Crediting the facts to which the officer testified to, that the driver slowed his truck and a number of cars had to apply their brakes, the evidence is not sufficient to show as a matter of law that the driver impeded the normal and reasonable flow of traffic.
Finally, the officer testified, and the trial court found, that the truck drove onto the shoulder on two occasions, violating Texas Transportation Code, Section 545.058. Section 545.058 provides that a driver may travel on an improved shoulder only in certain circumstances, none of which are present here. Appellant does not address this finding. Instead, Appellant argues that the driver did not violate Section 545.060(a) of the transportation code.
These statutes are not the same. Section 545.060 provides that a driver must drive in a single lane but may move out of that lane if the movement can be made safely. By contrast, Section 545.058 does not allow for free travel on the shoulder. Rather, it allows a driver to drive on the shoulder when necessary, when it can be done safely, and in one of several enumerated instances, for example, to park or to avoid a collision. Even if it was safe to do so, a contention the State contests, there was no evidence that it was necessary for the driver to drive on the shoulder and none of the enumerated instances where shoulder driving is permissible were present. Therefore, the officer was justified in pulling Appellant over when he saw him drive on the shoulder. See Tyler v. State, 161 S.W.3d 745, 750 (Tex. App.–Fort Worth 2005, no pet.).
The trial court’s findings that the officer observed the driver of the eighteen wheeler operate the vehicle on the shoulder and without the proper flaps are supported by the record. The trial court’s legal conclusions that these were violations of the transportation code and that a traffic stop was justified are correct. Therefore, we overrule Appellant’s first issue.
Sufficiency of the Evidence
In his second and third issues, Appellant argues that the evidence is legally and factually insufficient to support the verdict. Specifically, he contends that there was insufficient evidence to show that he knowingly or intentionally possessed the cocaine found in the trailer.
Standard of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129–30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury’s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006).
Under either standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Applicable Law
As alleged in the indictment, the State was required to prove that Appellant intentionally or knowingly possessed cocaine in an amount of more than 400 grams. Tex. Health & Safety Code Ann. § 481.115(f) (Vernon 2006); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Possession means “actual care, custody, control, or management” of an item. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 2006). The evidence used to prove these elements can be either direct or circumstantial. Brown, 911 S.W.2d at 747.
When the proof is circumstantial, the State must establish that the accused’s connection to the substance was more than just fortuitous. Id. Furthermore, when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances that affirmatively link the accused to the contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).
Courts have recognized as many as seventeen nonexclusive factors that may be considered when evaluating affirmative links. The factors include (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found, or was the owner or driver of the automobile in which the contraband was found; (3) whether the accused was found with a large amount of cash; (4) whether the contraband was conveniently accessible to the accused or found on the same side of the vehicle as the accused was sitting; (5) whether the contraband was found in close proximity to the accused; (6) whether a strong residual odor of the contraband was present; (7) whether the accused possessed other contraband when arrested; (8) whether paraphernalia to use the contraband was in view or found on the accused; (9) whether the physical condition of the accused indicated recent consumption of the contraband in question; (10) whether conduct by the accused indicated a consciousness of guilt; (11) whether the accused attempted to escape or flee; (12) whether the accused made furtive gestures; (13) whether the accused had a special connection to the contraband; (14) whether the occupants of the premises gave conflicting statements about relevant matters; (15) whether the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) whether the accused was observed in a suspicious place under suspicious circumstances. See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.–Tyler 2006, pet. ref’d) (citing Lassaint v. State, 79 S.W.3d 736, 740–41 (Tex. App.–Corpus Christi 2002, no pet.)); see also Poindexter, 125 S.W.3d at 405, n.7.
Analysis
The evidence in this case did not show that Appellant possessed the twenty kilograms of cocaine on his person. The evidence did show that Appellant owned the tractor and was traveling with McMorris, who owned the trailer. The question is whether the evidence is sufficient to show that he knew the cocaine was in the trailer and was working together with McMorris to transport it.
Someone had recently made substantial renovations to the trailer, including adding new interior walls and a well built, false interior wall that concealed a trap door and a secret compartment that had been welded to the bottom of the trailer. In addition to the more than forty pounds of cocaine, the secret compartment also contained at least 1,800 pounds of marihuana. An officer testified that the street value of the drugs was nearly $13 million. There were tools that could be used to gain access to the secret compartment through the cab of the truck as well as through the trailer, and there were rivets in the trailer consistent with those used to install the false wall. Finally, an officer found marihuana seeds and stems in the cab of the truck, and Appellant had more than $3,000 cash on his person, despite not being able to describe any formal employment.
The evidence also showed that McMorris was nervous, he had registered the truck and trailer the day before in Mississippi, and the two men offered different stories when describing their journey. Examining the evidence in the light most favorable to the jury’s verdict and in light of the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant knowingly and intentionally possessed the cocaine hidden in the trailer. The most persuasive factor is the sheer quantity of drugs and the industry required to put them in the trailer along with Appellant’s statement to the police officer that he could not “even begin to tell” him how much the drugs weighed. As Appellant notes, this statement was made after the drugs were found and could, strictly speaking, be consistent with a lack of prior knowledge of the drugs. But a rational jury could infer from the statement that Appellant knew the drugs were there and in such a quantity that he could not accurately describe it. Finally, the old records in the truck, which showed Appellant as a co-driver years in the past, along with Appellant’s ownership of the tractor and the recent registration of the tractor by McMorris, are sufficient for the jury to conclude that the two men were working together. We hold that the evidence was legally sufficient to support the jury’s verdict.
We reach the same conclusion under a neutral review of the evidence. We have reviewed the record in its entirety. We are mindful that our evaluation must not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. We also recognize that there is no set formula for finding an affirmative link, but rather affirmative links are established by a consideration of a totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d).
Given the circumstances of this case, we conclude that the jury was entitled to find that the evidence tending to link Appellant to the cocaine in question was of greater consequence than the evidence not tending to so link Appellant. Applying the factor approach strictly, there are factors that weigh against the conviction. Appellant was not under the influence of a controlled substance and did not have the controlled substance on his person or conveniently accessible to him. There was nothing about his demeanor or actions, i.e., he did not flee, that was consistent with a consciousness of guilt. On appeal, Appellant offers innocent explanations for why the two men did not offer the same history of their journey, why a log was not kept, and how it came to be that the men were transporting millions of dollars in contraband without knowing it. On page 47 of the brief, in a section captioned “Here is what happened,”3 Appellant offers an explanation that includes details—the two defendants had never opened the trailer, had not seen the trailer for months, and Appellant was wrong about where they had been because he had been asleep—derived from McMorris’s testimony at his suppression hearing, but not introduced before the jury. To the extent that it is a hypothetical scenario against which the jury’s verdict can be tested, the jury could have reasonably rejected the hypothesis.
The evidence is much more susceptible to the conclusion that persons who have millions of dollars in illegal contraband, and go to the trouble of fabricating a false wall in a semitrailer, do not simply give that multimillion dollar trailer to a pair of unwitting truck drivers. The presence of marihuana residue in the cab, the strong odor of marihuana in the interior of the trailer, and the amount of cash Appellant had on his person are all factors that weigh in favor of conviction, if not overwhelmingly. But the evidence, including Thomas’s statement, the inference that the men were working together, the lack of an explanation for the trip, and the sheer volume of the illegal drugs leads to the conclusion that Appellant’s possession of the cocaine was knowing.
Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not caused us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict. Appellant’s second and third issues are overruled.
Admission of Evidence
In his fourth and fifth issues, Appellant argues that evidence that marihuana was found along with the cocaine in the secret compartment in the trailer was inadmissible collateral misconduct evidence, that its probative value was outweighed by its prejudicial impact, and that the trial court should not have admitted testimony about the marihuana or the marihuana itself.
Standard of Review
These issues are not preserved for review. To preserve a complaint for appeal, a defendant must object, state the grounds for the objection with sufficient specificity, and obtain an adverse ruling. Tex. R. App. P. 33.1 (a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). The denial of a motion in limine does not preserve a complaint. Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).
The only potential objection raising these issues came during a pretrial discussion of the lifting of a motion in limine preventing the State from mentioning the marihuana in its opening statement. Appellant’s counsel objected to lifting the motion in limine on the grounds that the argument violated Texas Rules of Evidence 403 and 404, the complaint raised here, and because the State had destroyed most of the marihuana prior to trial. The trial court overruled the objections and allowed the State to discuss the marihuana in its opening statement. Thereafter Appellant made objections based on the spoliation issue, but never renewed an objection based on Rules 403 or 404 and did not object on that basis when the evidence was admitted. Because a motion in limine does not preserve a complaint, Appellant has not preserved this complaint for our review.
Even if Appellant had preserved this issue, the trial court’s implicit ruling is not in error. We review rulings on Rules of Evidence 403 and 404 for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). Under Rule 404(b), evidence from the same transaction as the charged offense is admissible as contextual evidence “to the extent that it is necessary to the jury’s understanding of the offense.” See McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005). Such evidence is admissible “only when the offense would make little or no sense without also bringing in the same transaction evidence” and when several offenses are so intermixed or connected as to form “a single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid describing the other.” Id.
In this instance, the cocaine and the marihuana were part of the same transaction and were not only intermixed and connected logically, but physically as well. The evidence was relevant for two reasons. First, the jury was instructed that they could consider whether the officer acquired probable cause to search the vehicle during the traffic stop, and further instructed that it should acquit if it found that the search of the vehicle was done without probable cause. The officer testified that he smelled the odor of raw marihuana, a smell which he later learned emanated from the large quantity of marihuana in the secret compartment, and a drug dog alerted on the truck. From the evidence, it cannot be said whether it was the smell of marihuana or cocaine that drew the dog’s attention, but the officer’s testimony about the obvious marihuana smell reinforced the inferences to be drawn from the testimony about the dog alerting on the truck. The evidence of the marihuana in the truck was necessary to show the officer’s probable cause to search the truck.
Second, keeping evidence about the marihuana from the jury would deprive them of an understanding of the offense. One of the most powerful inferences from the evidence came from the sheer volume of the contraband and the attendant unlikelihood that the possession of millions of dollars of illegal drugs could be accomplished unwittingly. There was a large quantity of cocaine, but the additional marihuana, nearly a ton of it, was an important part of the State’s argument that it was logical to infer that so large a load would not fall unwittingly into Appellant’s hands. The trial court did not abuse its discretion when it determined that the marihuana evidence was admissible either to show probable cause or as contextual evidence.
The trial court did not err when it found that the probative value of the marihuana outweighed the prejudicial harm caused by its admission. The testimony about the marihuana was crucial when it came to evaluating the propriety of the officer’s search of the semitrailer. Even absent the State’s right to prove probable cause to search the truck, since Appellant requested that the question be submitted to the jury, we are not persuaded that any unfair prejudice accrued to Appellant from the admission of the marihuana. To be sure, possession of marihuana is a crime, and possession of nearly a ton of marihuana is a serious crime. And, as we outlined above, the quantity of marihuana made a conviction more likely because, when coupled with the cocaine, it made a claim of innocent possession even more unlikely.
But the principal evil to be avoided when it comes to Rule 404(b) evidence is the “forbidden inference” that the defendant is a bad person and that he must have committed the charged offense because he committed an uncharged act. See, e.g., Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App. 2004); Bishop v. State, 869 S.W.2d 342, 345 (Tex. Crim. App. 1993) (“The intent of this rule is to prevent the introduction of evidence to prove the character of a person in order to show that he acted in conformity with that character.”). Here, the cocaine and the marihuana were both sealed in a single box, welded to the frame of the trailer, and hidden behind a false wall. It does not seem possible that a person could exercise care, custody, or control over one item and not the other. Whoever possessed the cocaine also possessed the marihuana. The inference that Appellant is a bad person because he possessed marihuana and therefore he must have possessed the cocaine is the forbidden inference. The inference that a person is unlikely to accidentally possess millions of dollars worth of illegal narcotics is not the forbidden inference. We perceive no danger of a forbidden inference, and no unfair prejudice to Appellant from the admission of the marihuana. We overrule Appellant’s fourth and fifth issues.
Impeachment of Character Witness
In his sixth and seventh issues, Appellant argues that the trial court erred when it permitted the State to ask his sister if she knew that he had been arrested for two other criminal offenses. Specifically, he argues that the State did not prove beyond a reasonable doubt that he had committed the offenses for which he had been arrested, the fact that the cases had been dismissed precluded the questions, and that the witness’s testimony did not open the door to this kind of cross examination.
Appellant’s sister testified as a character witness. While testifying about Appellant during his years in high school, she testified that Appellant did not get into trouble and that he was not a violent person. The State asked her if she was aware that Appellant had been arrested for possession of a handgun and for aggravated assault. She answered that she did not, and no evidence about the arrests was offered.
Analysis
As Appellant recognizes, the court of criminal appeals has recently addressed “did you know” questions asked of character witnesses. See Wilson v. State, 71 S.W.3d 346, 349-51 (Tex. Crim. App. 2002). The court reiterated that a witness who testifies to a defendant’s good character may be cross examined to test the witness’s awareness of relevant “specific instances of conduct.” Wilson, 71 S.W.3d at 350 (citing Tex. R. Evid. 405).4 This right of cross examination has two limitations: (1) the prior instances must be relevant to a character trait at issue; and (2) the prior instances must have a basis in fact. Wilson, 71 S.W.3d at 350–51.
Appellant argues that the questions were impermissible because the arrests were not reduced to convictions and were irrelevant because the sister was speaking about Appellant when he was in high school.5 With respect to the arrests not being final convictions, Rule 405 is different from the rule for admitting extraneous offenses in the punishment phase of trial. As Appellant points out, Article 37.07, code of criminal procedure, disallows evidence of an extraneous crime or bad act unless it is shown beyond a reasonable doubt to have occurred. But in the context of Rule 405 cross examination, not only was the State not required to prove to the jury that the acts actually occurred, but it would have been improper for the State to attempt to do so. Wilson, 71 S.W.3d at 350–51. The reason for this kind of cross examination is to test the character witness, not to introduce extraneous acts. Id.6 This question was a test of the witness’s knowledge of the facts and circumstances of Appellant’s life. Therefore the questions were not impermissible on the grounds that it was not shown that Appellant was convicted of the offenses.
A closer question is presented on the grounds that Appellant’s arrests were not relevant to the character trait at issue. Appellant’s sister testified that, during high school, Appellant did not get into any trouble, was not in any fights, and was not violent. The court in De Leon v. State, 758 S.W.2d 621, 627 (Tex. App.–Houston [14th Dist.] 1988, no pet.), stated that it was not “aware of a rule that requires the state, when cross–examining reputation witnesses, to limit its questioning to the narrowly tailored time periods previously inquired into by Appellant on direct examination.” Appellant has directed us to no such rule, and we have found none.7 Appellant’s sister testified that she had known Appellant continuously and sketched a time line from high school to the present time. In that context, the trial court did not abuse its discretion when it determined that the questions were a reasonable test of her testimony.
Finally, Appellant argues that there was not a basis in fact for the question asked by the State. There was not an objection on this ground. As the court held in Wilson, when a party objects that there is not a factual basis for a question, “the foundation for inquiring into the specific instances of conduct should be laid outside the jury’s presence so that the judge will have an opportunity to rule on the propriety of asking them.” Id. at 351. Because there was no objection to the lack of a predicate, the State was never called upon to provide one. Even so, Appellant essentially concedes that he had been arrested on those two occasions.
Appellant has not shown that the State lacked a factual basis for the questions and the questions were a reasonable test of the witness’s knowledge of Appellant’s life. Therefore, the trial court did not err when it allowed the State to ask the witness if she knew Appellant had been arrested. We overrule Appellant’s sixth and seventh issues.
Disposition
Having overruled Appellant’s seven issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered August 31, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 Appellant and McMorris have filed a single, joint brief. Some of the issues, as numbered, do not apply to one or the other appellant. Our numbering of the issues is sequentially as they appear in the brief.
2 The officer was asked, “And when you observed the truck reduce its speed, did the circumstances surrounding the truck and the reduction in speed in your mind violate that statute,” to which he responded, “Yes, sir.” The officer was asked specifically, “What is your concern when a vehicle rapidly decreases speed like that?” Rather than responding about the harm to be prevented by statute, impeding the flow of traffic, he responded that “[i]t’s just one of many indicators” and that “[i]t just got my attention.” These answers do not provide specific and articulable facts.
3 The paragraph is as follows: “Here is what happened: Thomas joined McMorris on a quick trip to Texas to pick up a trailer which McMorris owned, but had not seen in months, for use in McMorris’ trucking business. The two probably shared driving, drove to a small town near Austin, and found McMorris’ trailer. Since it was locked and presumably empty, they did not open it. They backed up, attached the trailer, and headed for Mississippi. Thomas slept along the way.”
4 Texas Rule of Evidence 405 provides as follows:
In all cases in which evidence of a person’s character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
5 Appellant also argues that an arrest is not an instance of conduct and therefore not appropriate for this type of question. Appellant did not object on this basis and so this complaint is not preserved for appellate consideration. Tex. R. App. P. 33.1(a)(1)(A).
6 Appellant’s citation to Rule of Evidence 404 is inapposite because the prior arrests were not introduced into evidence.
7 There is a limitation that reputation witnesses can only be asked about instances they might be expected to know about. See, e.g., United States v. Reich, 479 F.3d 179, 190 (2d Cir. 2007) (discussing United States v. Monteleone, 77 F.3d 1086, 1090 (8th Cir. 1996)).