Affirmed and Majority and Concurring Memorandum Opinions filed October 3, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00863-CR
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HERMAN J. SLAUGHTER, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1009273
M A J O R I T Y M E M O R A N D U M O P I N I O N
Appellant, Herman Jason Slaughter, appeals his conviction for evading arrest in a motor vehicle. Tex. Pen. Code Ann. ' 38.04 (Vernon 2003). After pleading not guilty, appellant was found guilty as charged by a jury. The trial court sentenced appellant to confinement for two years in the state jail, probated for five years. In four issues, appellant argues the trial court erred when it admitted evidence appellant placed a marijuana cigar on the pavement outside his motor vehicle while fleeing from a deputy sheriff. We affirm.
Factual and Procedural Background
Deputy Scott Talbot of the Harris County Sheriff=s Department, was on patrol on December 4, 2004 when he stopped at a stop sign at an intersection. While stopped at the intersection, he observed expired inspection and registration stickers on appellant=s vehicle as appellant made a left turn onto Broad Street at the same intersection. As appellant made the left turn, he made eye contact with Deputy Talbot who observed appellant holding a cigar. Deputy Talbot made a u-turn and caught up with appellant=s vehicle. Deputy Talbot pulled up behind appellant=s vehicle when appellant stopped at another intersection. Deputy Talbot then observed appellant, while stopped at the intersection, open his car door and place the cigar on the ground. Appellant then drove off, quickly accelerating to more than fifty miles per hour in a thirty miles per hour speed zone.
Deputy Talbot activated his lights to initiate a traffic stop. Appellant continued driving and Afishtailed@ while making a left turn onto Verdinelli Street. Appellant drove a short distance before pulling off the side of the road. Deputy Talbot testified it looked as though appellant was attempting to flee on foot, but was unable to do so because he was still wearing his seatbelt. As Deputy Talbot approached appellant=s vehicle, he smelled a strong odor of burning marijuana. After placing appellant in custody with another deputy, Deputy Talbot retrieved the cigar abandoned by appellant. Deputy Talbot testified the cigar had a green leafy texture inside the cigar wrap and had a strong odor of marijuana.[1]
Billy Landry was one of the witnesses called to testify by appellant. Landry testified he was mowing a lawn when he saw appellant make the left turn onto Verdinelli Street. According to Landry, appellant was not speeding as he made that turn. In addition, Landry testified he never saw Deputy Talbot activate his emergency lights prior to his arrest of appellant. Under cross-examination, Landry testified that, even though Deputy Talbot never activated his lights, it was obvious to him that Deputy Talbot was going to pull appellant over.
Appellant was charged by indictment and was found guilty as charged by the jury. Appellant had previously elected to have the trial court determine his punishment in the event he was convicted. The trial court sentenced appellant to confinement for two years in the state jail, probated for five years. This appeal followed.
Discussion
In four issues on appeal, appellant complains of the trial court=s admission of testimony regarding the marijuana cigar. Appellant argues: (1) the marijuana cigar was irrelevant and prejudicial, (2) the trial court failed to conduct a proper weighing of the danger of the undue prejudice of admitting testimony regarding the marijuana cigar, (3) the State failed to state a purpose for its admission, and (4) the testimony was admitted without a proper limiting instruction. We affirm.
A. Standard of Review
Evidence of a person=s character or character trait is not admissible for the purpose of proving action in conformity therewith. Tex. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts may be admissible if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Id.; Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh=g). Illustrative of the permissible purposes to which evidence of other crimes, wrongs, or acts may be put are proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. These exceptions are neither exclusive nor exhaustive. Pondexter v. State, 942 S.W.2d 577, 583B84 (Tex. Crim. App. 1996). Extraneous offense evidence that logically serves any of these purposes is relevant beyond its tendency to prove the character of a person to show that he acted in conformity therewith. Montgomery, 810 S.W.2d at 387. It is therefore admissible, subject only to the trial court=s discretion to exclude it if its probative value is substantially outweighed by the danger of unfair prejudice. Id. However, if the extraneous offense evidence is not relevant apart from supporting an inference of character conformity, it is absolutely inadmissible under Rule 404(b). Id.
Questions of relevancy should be left largely to the trial court, relying on its own observations and experience. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). If the trial court determines the evidence has relevance apart from character conformity, the evidence should be admitted absent a further objection from the opponent of the evidence. Montgomery, 810 S.W.2d at 389. The trial court=s decision whether to admit evidence under Rule 404(b) will be upheld on appeal absent an abuse of discretion. Id. at 391. In other words, an appellate court will not intercede as long as the trial court=s decision is within the zone of reasonable disagreement. Id.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Therefore, upon further objection from the opponent of the evidence based on Rule 403, the trial court must weigh the probativeness of the evidence against the potential for unfair prejudice. Montgomery, 810 S.W.2d at 389. In keeping with the presumption of admissibility of relevant evidence, there is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The trial court=s ruling regarding whether to exclude evidence under Rule 403 is also measured by an abuse of discretion standard and will not be reversed if the ruling is within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391.
B. Did the trial court err in admitting evidence concerning the alleged marijuana cigar?
In his first issue, appellant argues the trial court erred in admitting testimony regarding the marijuana cigar deposited on the street by appellant during his flight from Deputy Talbot. Appellant argues the evidence was irrelevant and prejudicial. We disagree.
In order to prove appellant evaded detention with a motor vehicle, the State had to prove appellant intentionally fled from Deputy Talbot. Tex. Pen. Code Ann. ' 38.04(a)B(b)(1).[2] Evidence of illegal drug use or possession helps to prove that appellant intentionally fled from Deputy Talbot.[3] Accordingly, the marijuana cigar evidence is relevant. Tex. R. Evid. 401. As the marijuana cigar evidence is relevant, the question becomes whether or not it is excluded by Rule 404(b).
An extraneous offense may be admissible if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Montgomery, 810 S.W.2d at 387. Evidence that logically serves such purposes as proof of motive is relevant beyond its tendency to prove conforming character. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Moreover, evidence of motive is always relevant and admissible to prove that a defendant committed the offense alleged. Crane v. State, 786 S.W.2d 338, 349B50 (Tex. Crim. App. 1990).
Here, evidence that appellant possessed marijuana indicates a motive for intentionally fleeing from the deputy. See Peterson v. State, 836 S.W.2d 760, 763 (Tex. App.CEl Paso 1992, pet. ref=d) (finding defendant=s extraneous possession of marijuana and a pistol relevant to show his motive for fleeing and assaulting officers). Therefore, the evidence was not submitted to show that appellant acted in conformity with his character, but to illustrate his intent. Because the marijuana cigar evidence is relevant and tended to prove something other than appellant=s character, we find the trial court did not abuse its discretion in overruling appellant=s Rule 404(b) objection.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Since the State needed the evidence to prove a fact of consequence (appellant=s motive in evading the police), the evidence was highly probative in establishing intent, an essential element of the evading arrest charge. In addition, the marijuana cigar evidence was relevant to counteract the inference from Mr. Landry=s testimony that appellant was not aware Deputy Talbot was trying to stop him because Deputy Talbot had not activated his lights. We find the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice and the trial court did not abuse its discretion in overruling appellant=s Rule 403 objection. We overrule appellant=s first issue.
C. Did the trial court err when it did not perform a Rule 403 balancing test on the record?
In his second issue, appellant asserts the trial court did not perform a balancing test under Rule 403 before overruling appellant=s Rule 403 objection to the marijuana cigar evidence. There is no requirement that a trial judge must perform the Rule 403 balancing test on the record. The record does not have to include the trial court=s logic behind the balancing test it used to determine whether evidence is more prejudicial than probative under Rule 403. Howland v. State, 966 S.W.2d 98, 103 (Tex. App.CHouston [1st Dist.] 1998), aff=d 990 S.W.2d 274 (Tex. Crim. App. 1999). Because the trial court overruled appellant=s Rule 403 objection, it is presumed the balancing test occurred. Id. We overrule appellant=s second issue.
D. Did the trial court err when it allowed the State to proceed with extraneous offense evidence without requiring the State to articulate on the record the purpose for which the State was offering the evidence?
In his third issue, appellant complains the State failed to recite a proper purpose for the admission of the extraneous offense evidence and contends the trial court erred in not requiring the State to offer one. The law does not require the State to specifically state why the offered extraneous offense evidence is admissible under Rule 404(b). Montgomery, 810 S.W.2d at 387. The State must only satisfy the trial court that the extraneous act has relevance apart from character conformity. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387. When the trial court overruled appellant=s Rule 404(b) objection, it implied that it was satisfied the extraneous act evidence had relevance apart from character conformity. Appellant correctly states the requirement that a trial court should honor any request by the opponent of the evidence for articulation into the record of the purpose for which the evidence is being offered by the proponent. Id. However, appellant did not make this request of the trial court. We overrule appellant=s third issue.
E. Did the trial court err when it did not provide a limiting instruction to the jury at the time it admitted the marijuana cigar evidence?
In his last issue, appellant argues the trial court, at the time it admitted the evidence, should have given the jury an instruction on the limited purpose for which the marijuana cigar evidence was admitted. However, where the evidence is admissible for a limited purpose and the trial court admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction. Tex. R. Evid. 105(a); Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001). If the opponent of the evidence fails to request a limiting instruction when the evidence is first admitted, then it cannot complain on appeal about the admission of such evidence without limitation. Tex. R. Evid. 105(a); Hammock, 46 S.W.3d at 893B95. In this case, appellant did not request a limiting instruction at the time the trial court first admitted the marijuana cigar evidence and also failed to object to the jury charge. As appellant did not request a limiting instruction, the trial court was under no obligation to provide one. Tex. R. Evid. 105(a). We overrule appellant=s fourth issue.
Conclusion
Having overruled all of appellant=s issues on appeal, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Majority and Concurring Memorandum Opinions filed October 3, 2006. (Concurring, J., Frost,).
Panel consists of Justices Anderson, Edelman, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The cigar had been destroyed prior to trial and was not admitted into evidence.
[2] Texas Penal Code Section 38.04 provides in part:
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section.
Tex. Pen. Code Ann. ' 38.04.
[3] Appellant argues in his brief Athere was no reason for [a]ppellant to risk being charged with a felony to avoid being charged with a misdemeanor [marijuana possession charge].@ As appellant did not testify at trial, there was no evidence in the record of his knowledge or lack of knowledge about the seriousness of the potential charges he faced. Accordingly, this statement by appellant represents nothing more than unsupported speculation about appellant=s motive or lack thereof for fleeing from Deputy Talbot.