Affirmed and Opinion filed June 15, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00402-CR
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LISA MARIE SEARCY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 942,126
O P I N I O N
Appellant, Lisa Marie Searcy, was charged by indictment, and subsequently convicted by a jury, for delivering at least 400 grams of methamphetamine. Thereafter, the jury assessed her punishment at confinement in the Texas Department of Criminal Justice, Institutional Division for a term of twenty years and a $500 fine. On appeal, appellant complains the trial court erred in failing to sua sponte instruct jurors to consider evidence of extraneous offenses and bad acts at the punishment stage only if they first determined beyond a reasonable doubt that she committed those offenses We affirm.
Michael Martinez was working as a confidential informant. On May 30, 2002, appellant, along with two females friends, was at Martinez= apartment. Martinez= friend, Jesus Vasallo, was also there. Appellant=s friends were doing Aglass@Ca particularly potent form of methamphetamine. Martinez, who had known appellant for about six months, asked her if she could get some glass for him. Appellant replied that she could and made a phone call. Appellant told Martinez they would talk again the next day.
On May 31, 2002, Martinez called appellant and told her he needed seven pounds of glass. Because Martinez wanted to see a sample of what appellant had and appellant wanted to see Martinez= money, they arranged to meet at a Best Buy store parking lot later that day. When appellant arrived, Martinez called someone to drive up with the money. Agent Chris Freeman of the Drug Enforcement Agency drove up to Martinez and appellant, rolled down the window, and showed appellant $10,000 in Aflash@ money. Appellant left to retrieve the sample. Martinez thought appellant was taking too long and called her; they agreed to meet at Doneraki=s restaurant parking lot where appellant gave Martinez the sample. Martinez turned the sample over to law enforcement officers, who conducted a field test that indicated the presence of methamphetamine. Martinez talked to appellant later that day and told her the sample was good and tried to arrange the delivery of the seven pounds of glass. Appellant told Martinez she would sell the glass to him for $15,000 per pound.
On June 1, 2002, appellant called Martinez, stating that she had a more potent upgrade of the drug. They arranged a meeting for appellant to provide another sample so that Martinez could determine which potency of methamphetamine he wanted to purchase. They met at a Taco Cabana parking lot, where appellant gave Martinez the sample. Martinez again gave the sample to law enforcement officers.
Martinez and appellant spoke later that day. Although Martinez still wanted to purchase seven pounds, appellant told Martinez that she was going to sell only one-half pound at first to make sure everything went smoothly. They arranged to meet at the parking lot of a Blockbuster store. Appellant arrived with three men in a black Lexus. When appellant gave Martinez a Cheez-It box containing one-half pound of methamphetamine, Martinez then called Vasallo to bring the money. When Vasallo drove up, Martinez gave him the Cheez-It box and Vasallo gave Martinez $7,750. Martinez got in the Lexus and observed appellant and the men count the money. When they finished counting the money, Martinez got out of the car and the appellant and the three men drove away. Vasallo turned the Cheez-It box over to law enforcement officers.
On June 3, 2002, Martinez spoke with appellant about the delivery of the remaining six and one-half pounds of glass. Appellant told Martinez that she would only deliver two pounds of glass to make sure the transaction went smoothly. They met later that day at the parking lot of the Blockbuster where they had previously met. Appellant arrived with the same three men in the same Lexus. Appellant and one of the men got out of the car. The man, in appellant=s presence, handed Martinez a Frosted Flakes box, containing one pound of methamphetamine. They told Martinez they were giving him only one pound, instead of two pounds. Martinez called Vasallo to purportedly bring the money and then signaled the law enforcement officers, who moved in and arrested everyone.
After her arrest, appellant gave a voluntary handwritten confession to Sergeant Charles Kibble of the Texas Department of Public Safety assigned to the drug task force:
Friday, Michael called me to get him 7 lbs of glass and I called around and [E]rnie had some. So he brought me a sample at Benihana=s to give to Michael. I met Michael at Doneraki=s and gave it to him. Then, on Saturday I brought him another sample and Saturday evening I went with [E]rnie, Shawn and Juan and brought Michael a half pound of crystal for seven thousand. On Monday me, [E]rnie, Shawn and Juan went with one pound of crystal to the parking lot and it would of been for fourteen thousand. Shawn had picked up me and [E]rnie all of the times and Juan had been with him. My cut for referral was $250 per lb per each side.
Appellant testified at her trial that Martinez had called her on numerous occasions asking if she knew anyone who had large quantities of drugs. Even though she said no, Martinez kept asking. Appellant, who owns a nail business, was working with a client on May 30, 2002, when Martinez called. Appellant claimed not to know what Aglass@ was, but her client knew and would talk to her husband, Ernst Roman, about it. Appellant was going to get the drugs for Martinez from Roman and would receive $3500, or $250 per pound from each party to the transaction.
Appellant, however, further testified that she did not know the first sample she gave Martinez was methamphetamine; Martinez only told her to get him a sample. When appellant delivered the first sample at the Doneraki=s restaurant parking lot, she thought she was going to have dinner with Martinez, but as soon as she got there, he said he had to get back to work. Appellant also claimed not to know the purpose of the money. Instead, she thought Martinez was just trying to impress her.
Appellant also testified that she did not know what was in the Cheez-It box. She explained that on June 1, 2002, she had been to a barbeque where she had been drinking beer and wine coolers. Appellant left with Roman and the other men to meet Martinez. On the way, they stopped at a store to buy her a box of crackers because she had consumed too much liquor. Appellant testified that when they arrived at the Blockbuster parking lot, AJuan asked me, oh, is that your boyfriend and, um, I said yes, kind of. And he said, well, give these crackers to him. So I was eating the crackers, I just handed him the box.@ Although appellant had been eating crackers out of the same box that she gave to Martinez, she Awasn=t really conscious of what was in the box.@ Appellant also stated that she did not help count any money.
With regard to the one-pound transaction in the Frosted Flakes box on June 3, 2002, appellant claims she never saw the Frosted Flakes box containing the methamphetamine before trial. Appellant explained that she was in the same Lexus with same men as before because her car had transmission problems and she had an appointment with a client at a restaurant by the Blockbuster where they met Martinez.
Although appellant admits she wrote the statement she gave to Sergeant Kibble, she Adid not read what was on the paper.@ She claims the police told her that she would be prosecuted and would go to prison, but promised that if she made the statement, they would let her go and she would not be charged. Sergeant Kibble testified that he did not tell appellant that he would not file charges against her in exchange for her statement. He also stated that he did not dictate what she wrote in her statement. Sergeant Kibble observed that appellant did not appear to be intoxicated, but, rather, she appeared Ato have total control of her mental and physical faculties.@
Several law enforcement officers were assigned to the surveillance of the transactions between Martinez and appellant. Martinez wore a wireless transmitter and the officers were able to listen to Martinez and appellant=s conversations and observe their actions. The officers= testimony confirmed Martinez= version of how those events transpired.
In her sole issue on appeal, appellant claims the trial court should have sua sponte instructed the jury to consider any evidence of extraneous offenses and/or bad acts at the punishment stage only if it determined beyond a reasonable doubt that appellant committed the offenses or bad acts. Appellant was charged with the June 3, 2002 one-pound delivery of methamphetamine. Appellant, however, complains that her other deliveriesCthe two samples and the half-pound of methamphetamine, and the offers to sell seven pounds and two pounds of methamphetamine are extraneous offenses and, therefore, the trial court was required to instruct the jury on the State=s burden of proof.
With respect to extraneous offenses and bad acts, Article 37.07, ' 3(a) of the Texas Code of Criminal Procedure provides:
. . . evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, . . .
Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon Supp. 2004). Article 37.07 mandates that extraneous offenses and bad acts may not be considered in assessing punishment until after the fact-finder is satisfied beyond a reasonable doubt that they were committed by the defendant. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). In the absence of a request or objection, the trial court must sua sponte instruct the jury of the State=s burden of proof. Huizar v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000).
We are unpersuaded by appellant=s argument. First, the evidence at issue was offered at the guilt/innocence phase of the trial. Second, it constitutes Asame transaction contextual evidence.@
Same transaction contextual evidence Aimparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven.@ Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). Such evidence is not admitted for the purpose of showing conformity, but to illuminate the nature of the crime alleged. Id. When evidence of an extraneous offense is offered at punishment, it is offered to assist the jury in evaluating the defendant=s character for the purpose of assessing punishment, and the State, therefore, must prove the defendant committed the extraneous offense because it is used as evidence against the defendant. Garza v. State, 2 S.W.3d 331, 335 (Tex. App.CSan Antonio 1999, pet. ref=d). However, where such evidence is presented as same contextual evidence, the State is not offering the evidence to prove the defendant=s characters, but to explain the surrounding circumstances and a reasonable doubt instruction is not required. Id.; see also Duchane v. State, 2002 WL 232851, at *5 (Tex. App.CDallas Feb. 8, 2002, no pet.) (not designated for publication); Hatton v. State, 2000 WL 350539, at *1 (Tex. AppCHouston [14th Dist.] Apr. 6, 2000, no pet.) (not designated for publication).
Here, the one-pound transaction with which appellant was charged, was the culmination of several days of negotiations between her and Martinez. Initially, appellant gave Martinez a sample after he had requested seven pounds. Whether Martinez, as the buyer, found the sample acceptable would determine whether he and appellant would continue with the sale. Appellant then informed Martinez that she could obtain a more potent form of methamphetamine, which required the delivery of another sample to Martinez so that he could decide which potency he wanted to purchase. Although Martinez had originally requested seven pounds, appellant informed appellant that she would initially sell one-half pound to make sure that everything went smoothly. When appellant and Martinez discussed the delivery and purchase of the remaining six and one-half pounds, appellant informed Martinez that she would only sell him two pounds; however, appellant and the three men showed up with only one pound. Such activities were interwoven with the delivery of the one pound of methamphetamine for which appellant was charged and, as such, was clearly same transaction contextual evidence.
Moreover, such evidence was necessary to put appellant=s role in the June 3rd, one-pound transaction in its proper and complete context. Because appellant had delivered two samples, had participated in the of one-half pound transaction, and had negotiated the sale of two pounds and seven pounds of methamphetamine, such evidence tended to show appellant knew the contents of the Frosted Flakes box, rather than being an innocent bystander during the transaction when one of the men handed the box to Martinez. We conclude, therefore, a reasonable doubt instruction was not required.
Even if a reasonable doubt instruction were required, we do not find that such error in the trial court=s failure to sua sponte instruct the jury constitutes egregious error. Almanza[1] sets forth the appropriate harm analysis for error in not instructing the jury under article 37.07 on reasonable doubt for extraneous offenses and bad acts. Huizar, 12 S.W.3d at 483. Therefore, when a defendant fails to object to the trial court=s failure to include an instruction under article 37.07, jury charge error does not require reversal unless it is so egregious that the defendant was denied a fair and impartial trial. Almanza, 686 S.W.2d at 171. A[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.@ Id.
The evidence from the guilt-innocent stage was reintroduced at the punishment stage of trial. Appellant complains that during jury argument, the prosecutor emphasized the extraneous offenses:
A. . . You might think about the minimum if that State Exhibit 4 were the only thing that you knew about her. Well, but, you know, that=s not true. You know State Exhibit 4, a pound of dope, was part of a seven pound deal. That=s just another one of the installments that she already sold half pound [sic], she=s out delivering samples. This is not a minimal player, so that is what you kind of need to move her away from that minimum side. . . . Well, [appellant] has dealt a seven pound deal, she made several deliveries . . .@
Appellant=s testimony that she did not know the two samples in the Cheez-It and Frosted Flakes boxes contained methamphetamine is contradicted by (1) the testimony of Martinez and the officers involved in the surveillance, (2) the appellant=s presence, and (3) the appellant=s admission, in her hand-written statement, that she Acalled around@ to locate some glass for Martinez, delivered samples on two separate occasions, delivered one-half pound of Acrystal@ for seven thousand dollars, and delivered one pound Aof crystal to the parking lot and it would of been for fourteen thousand.@
Appellant=s testimony is also contradicted by her own testimony and other actions. For example, appellant testified that she was eating crackers from the same box that contained the one-half pound of methamphetamine, which she gave to Martinez, but did not know that it contained any drugs. Appellant also testified that getting paid $500 for the transaction was not enough for her to break the law, but that she did it Aout of love for [Martinez].@
Finally, we observe the punishment assessed by the jury is well-within the range of punishment; indeed, it is at the lower end of the range. The prosecutor requested that the jury assess a prison sentence of 50 years. Although, the range of punishment is 15 to 99 years= confinement and a fine of up to $250,000, the jury assessed punishment at 20 years= confinement and a $500 fine. We do not find the error, if any, so egregious that appellant was denied a fair and impartial trial.
Appellant=s sole issue is overruled and the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed June 15, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh=g).