Keith Freeman v. State

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.

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 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.

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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)).

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 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 ___.”

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 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

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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.

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 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.

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 CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle
Justice

Do not publish.

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