NO. 07-11-0407-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 20, 2012
______________________________
KEITH FREEMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 19TH DISTRICT COURT OF MCLENNAN COUNTY;
NO. 2011-460-C1; HONORABLE RALPH T. STROTHER, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Keith Freeman, was convicted by a jury of assaulting a public servant1
and sentenced to sixty years confinement. He asserts the trial court erred by (1)
permitting the State to introduce an extraneous offense for the purpose of establishing
motive and (2) allowing the State to argue Appellant’s parole eligibility before the jury
during the punishment phase. We affirm.
1
See Tex. Penal Code Ann. § 22.01(a), (b)(1) (West 2011).
BACKGROUND
At trial, Officer Charles Herrin, a Waco police officer, testified that on September
28, 2010, he was assisting narcotics and SWAT officers by conducting surveillance
during the execution of a search warrant at the apartment of Larry Branch, a suspected
drug dealer. Prior to SWAT’s arrival, Officer Herrin observed Branch exit his second-
floor apartment and enter the passenger side of a Buick parked on the street adjacent to
his apartment complex. As SWAT began executing the search warrant, Officer Herrin
was directed to stop the Buick. In doing so, he positioned his unmarked car
approximately fifteen to twenty feet to the left of the Buick’s front end. He then exited
his car, pulled his gun, and began yelling loudly “police” and “let me see your hands.”
He was not wearing a uniform, however, he was wearing his police badge on a chain
around his neck.
Appellant and Branch looked at Officer Herrin but remained in the car as he
continued to identify himself and shout commands. Suddenly, Branch opened the
passenger door and both occupants appeared to be exiting when they saw another
officer approaching from the rear.2 They returned to their former positions and again
made eye contact with Officer Herrin who continued to shout loud, repetitive commands.
Appellant then shoved the gearshift on the steering column down, the Buick’s tires
squealed, and the car accelerated at a high rate of speed toward Officer Herrin.3 Officer
Herrin attempted to enter his car but before he could do so it was struck by the Buick.
2
Officer Kyle Moeller testified that he approached from the rear wearing a vest with “POLICE” printed
across the front. He opined that Branch knew he and the officers accompanying him were police officers.
.
3
Officer Scott Vaughn testified that, when he was approximately ten to fifteen yards from the Buick, he
saw Appellant turn the Buick’s tires in Officer Herrin’s direction, hit the accelerator and take off.
2
The collision caused the door to slam, thereby striking Herrin in the forehead, leg and
hand. After falling to the asphalt, he observed the Buick continue at a high rate of
speed until it struck an unmarked pickup being operated by Officer David Starr.
Sergeant Tim Rhudy observed these events from the balcony of Branch’s
apartment one hundred feet away. He testified he could hear Officer Herrin loudly
giving commands and identifying himself as a police officer. He also testified the Buick
continued to accelerate after striking Officer Herrin’s car until it struck the unmarked
pickup. Officer Vaughn testified that, after the Buick struck Officer Starr’s pickup,
Appellant exited and continued to attempt to flee. With Officer Herrin’s assistance,
Officer Vaughn was able to detain Appellant.
Appellant testified he met Branch in his car for the purpose of purchasing a small
amount of marijuana. They were talking when Officer Herrin drove up and exited his car
with his gun drawn. Appellant testified he did not see Officer Herrin’s badge and
believed he was going to rob or kill him. He panicked, released the steering wheel, fell
to the floorboard, accidently hitting the accelerator, while the car was in “drive.” During
Appellant's direct examination the following exchange occurred:
Q. Now, how come you know you wouldn’t have been trying to run from
[Officer Herrin]? If you thought it was an officer, would you have tried
to run?
A. I didn’t have any warrants. All I had was a misdemeanor, a small bag
of marijuana, and that was a misdemeanor. There was no reason for
me to run other than fear for my life.
3
Appellant testified that, because he was in possession of a small amount of
marijuana at the time of the incident, he knew from past experience that he would only
get a small amount of jail time if he were arrested and, if he had known Officer Herrin
was a police officer, he “would have put [his] car in ‘park.’” After Appellant testified, both
sides rested and court was adjourned for the day.
The next morning the State announced it wished to offer rebuttal testimony to
counter the defense’s theory of motive, i.e., that Appellant had no reason to attempt to
flee because he was in possession of only a misdemeanor amount of marijuana.
Appellant's objection to the introduction of that evidence was overruled. Prior to the
presentation of that testimony, the trial court previewed a limiting instruction stating the
jury could consider the State’s testimony only for purposes of rebutting the theory that
the defendant had no motive to engage in the conduct for which he was on trial and to
determine credibility if the jury believed the extraneous offense testimony beyond a
reasonable doubt. When asked, Appellant’s counsel had no objection to the limiting
instruction.4 Thereafter, Officer Justin Fulp testified that less than two weeks earlier, on
September 16, 2010, he had arrested Appellant for felony possession of a controlled
substance, to-wit: cocaine. Christina Lopez, an employee of Hill Bail Bonds, next
testified that Appellant had been released on a felony bond on September 28th, the
date of Appellant's arrest on the instant offense.
During closing arguments, the State opined that because a condition of
Appellant’s bond on the prior possession of a controlled substance charge was that he
commit no criminal offense, he had every motivation to attempt to flee rather than be
4
A similar extraneous offense instruction was included in the jury charge without objection.
4
arrested for possession of marijuana, thereby causing his felony bail to be revoked. At
that time, no objection was made to the State’s closing argument.
I. EXTRANEOUS OFFENSE
In his first issue, Appellant claims the trial court erred in admitting the testimony
of Officer Fulp and Christina Lopez regarding Appellant’s prior arrest for felony
possession of cocaine and subsequent bail.
A. STANDARD OF REVIEW
We review a trial court’s admission or exclusion of extraneous offense evidence
under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627
(Tex.Crim.App. 2003). To obtain a reversal of a conviction based on error in the
admission of evidence, an appellant must establish that the trial court’s ruling was
outside the zone of reasonable disagreement and the error affected his substantial
rights. See Page v. State, 213 S.W.3d 332, 337 (Tex.Crim.App. 2006); Hernandez v.
State, 205 S.W.3d 555, 558 (Tex.App.—Amarillo 2006, pet. ref’d). See also Tex. R.
App. P. 44.2(b). Further, a trial court’s decision regarding the admissibility of evidence
will be sustained if correct on any theory of law applicable to the case even when the
court’s underlying reason for the decision is wrong. Morales v. State, 293 S.W.3d 901,
911 (Tex.App.—Texarkana 2009, pet. ref’d) (citing Romero v. State, 800 S.W.2d 539,
543-44 (Tex.Crim.App. 1990)).
5
B. RELEVANCY
Although the general rule is that evidence of extraneous crimes is not admissible,
such evidence can be admitted if it satisfies the requirements of the following two-prong
test: (1) the offense is relevant to a material issue in the case other than the issue of
the defendant’s character; and (2) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice. See Toliver v. State, 279
S.W.3d 391, 394 (Tex.App.—Texarkana 2009, pet. ref’d), cert. denied, ___ U.S. ___,
130 S.Ct. 3417, 177 L.Ed.2d 330 (2010). Whether an issue is material is determined by
“the respective theories proffered by the State and the defense.” Id. For example,
evidence of extraneous crimes may be admissible to show motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. See Tex. R.
Evid. 404(b).5
For instance, it is "well-established that extraneous offenses are admissible to
negate or rebut the possibility of accident.” Booker v. State, 929 S.W.2d 57, 63
(Tex.App.—Beaumont 1996, pet. ref’d) (citing Bryson v. State, 820 S.W.2d 197, 199
(Tex.App.—Corpus Christi 1991, no pet.)). Here, Appellant testified on direct
examination that he accidently struck the police vehicles, i.e., when he saw Officer
Herrin’s weapon, he slid down to the floorboard and accidently hit the gas pedal while
his car was in “drive.” Accordingly, the State was entitled to rebut this defensive theory
with evidence that Appellant struck Officer Herrin’s car while attempting to flee. See
Booker, 929 S.W.2d at 63.
5
Throughout the remainder of this opinion, provisions of the Texas Rules of Evidence will be cited as
“Rule ___.”
6
Furthermore, evidence of motive is "generally admissible because it is relevant
as a circumstance tending to prove guilt." Russo v. State, 228 S.W.3d 779, 774
(Tex.App.--Austin 2007, pet. ref'd) (citing Bush v. State, 628 S.W.2d 441, 444
(Tex.Crim.App. 1982)); Booker, 929 S.W.2d at 63 ("Evidence of motive is always proper
to assist in proving the defendant committed the charged offense.") Here, the
extraneous offense tended to establish that Appellant’s motive for assaulting Officer
Herrin was to avoid revocation of his felony bail. See Porter v. State, 623 S.W.2d 374,
386 (Tex.Crim.App. 1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491
(1982) (appellant’s commission of a robbery eleven days before his murder of a police
officer admissible because the prior crime created an inference that his motive for
murder was to avoid apprehension). See also DeLeon v. State, 937 S.W.2d 129, 135-
36 (Tex.App.—Waco 1996, pet. ref’d) (appellant’s prior theft of automobile admissible to
create inference that his motive for beating police officer at subsequent traffic stop was
to escape); Peterson v. State, 836 S.W.2d 760, 762-63 (Tex.App.—El Paso 1992, pet.
ref’d) (appellant’s possession of a pistol, ammunition and marijuana in an automobile
admissible not only to explain his motive for attempting to flee and assaulting officers
but also to rebut defendant’s assertion of self-defense). Thus, we find evidence of
Appellant’s earlier arrest for possession of cocaine was both relevant and within at least
two exceptions found in Rule 404(b). See DeLeon, 937 S.W.2d at 136; Booker, 929
S.W.2d at 63.
C. PREJUDICIAL NATURE V. PROBATIVE VALUE
Having found the evidence of Appellant’s prior arrest relevant, we next review the
trial court’s balancing of the prejudicial nature of this evidence against its probative
7
value. See Rule 403; Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999).
Rule 403 favors the admissibility of evidence and carries a presumption that relevant
evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284
(Tex.Crim.App. 2003), cert. denied, 540 U.S. 1185, 124 S.Ct. 1405, 158 L.Ed.2d 90
(2004) (citing Jones v. State, 944 S.W.2d 642, 652-53 (Tex.Crim.App. 1996), cert.
denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997)).
When a Rule 403 objection is made, the trial court must engage in a balancing
process. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1991) (op. on
reh’g). In evaluating a Rule 403 determination, a reviewing court is to reverse the trial
court’s judgment “rarely and only after a clear abuse of discretion,” recognizing that the
trial court is in a superior position to gauge the impact of the evidence and to balance
the relevant factors. Mozon, 991 S.W.2d at 847. Factors that may be used in the
balancing process include (1) the inherent probative value of the evidence, (2) the
similarity of the conduct to the offense on trial, (3) the strength of the evidence of the
extraneous conduct, (4) the nature of the extraneous conduct and its potential for
impressing the jury in irrational, indelible ways, (5) the trial time necessary to develop
the evidence, giving consideration to whether the jury’s attention will be diverted from
the offense on trial, and (6) the State’s “need” for the evidence including (a) the
availability of other evidence which tends to accomplish the same “other purpose,” (b)
the strength of the other evidence, and (c) whether the purpose served by the
admission of the extraneous evidence relates to an issue in dispute. Montgomery, 810
S.W.2d. at 389-90.
8
Testimony that Appellant was arrested for felony drug possession only twelve
days prior to the assault on Officer Herrin is inherently probative because it creates an
inference that the assault upon Officer Herrin was not accidental and Appellant had a
motive for attempting to flee. Evidence of the prior drug arrest is also non-character
conforming evidence, clearly dissimilar from the assault of a public servant.
Furthermore, Officer Fulp’s account of the prior arrest was not contested. The nature of
the extraneous offense was neither “gruesome” nor “shocking” and exhibited little
potential to improperly impress the jury. Moreover, the development of the evidence
took only a short portion of the trial. Finally, the State’s need for the evidence is not
questionable because Appellant testified on direct that striking the officers’ vehicles was
accidental and he had no reason to flee from or assault Officer Herrin.
Appellant contends the State was required to show that he had direct knowledge
that his felony bond would be revoked if he was found in possession of marijuana on
September 28. The State is not required to present direct evidence of an extraneous
offense. See Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Indeed,
circumstantial evidence is as probative as direct evidence and circumstantial evidence
alone can be sufficient. See Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).
Further, Appellant’s assertion that there was no legal or constitutional basis for
Appellant’s felony bond to be revoked due to a subsequent charge of misdemeanor
marijuana possession is presented for the first time on appeal. Because this complaint
was not presented to the trial court, it was not preserved for our review. See Tex. R.
App. P. 33.1(a)(1)(A) (To preserve an evidentiary complaint on appeal, the appellant
must raise a specific complaint at trial.) See also Guevara v. State, 97 S.W.3d 579, 583
9
(Tex.Crim.App. 2003); Goodwin v. State, 799 S.W.2d 719, 738-39 (Tex.Crim.App.
1990).
Having reviewed the record as a whole and giving due deference to the trial
court, we cannot say it abused its discretion in finding the danger of unfair prejudice did
not substantially outweigh the probative value of the State’s proffered extraneous
offense evidence. This is particularly so because the trial court gave a limiting
instruction without objection before, and after, the rebuttal testimony. See Abdnor v.
State, 871 S.W.2d 726, 738 (Tex.Crim.App. 1994) (citing Robinson v. State, 701
S.W.2d 895, 899 (Tex.Crim.App. 1985)); Morales, 293 S.W.3d at 912. Appellant’s first
issue is overruled.
II. IMPROPER JURY ARGUMENT
Appellant next contends the State improperly argued his parole eligibility to the
jury during the punishment phase of the trial, but concedes there was no objection to
the State’s argument. He asks this Court to adopt the reasoning of Almanza v. State,
686 S.W.2d 157 (Tex.Crim.App. 1985), and excuse his failure to object after a
determination that the State’s argument was so egregious as to deprive him of a fair
trial. Appellant fails to cite any precedent supporting such an application of Almanza.
There is, however, precedent for the proposition that he waived any right to complain
about the State’s jury argument because there was no objection or adverse ruling by the
trial court. Johnson v. State, 68 S.W.3d 644, 655 (Tex.Crim.App. 2002). See Valencia
v. State, 946 S.W.2d 81, 82-83 (Tex.Crim.App. 1997) (citing Cockrell v. State, 933
S.W.2d 73, 89 (Tex.Crim.App. 1996)). Appellant’s second issue is overruled.
10
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
11
Keith Freeman v. State
Combined Opinion