Affirm and Opinion Filed August 17, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00150-CR
JOHN CARROLL MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 070415
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Nowell
Opinion by Justice Osborne
A jury found John Carroll Moore guilty of possession of methamphetamine,
a controlled substance, in an amount of one gram or more but less than four grams.
The indictment included two enhancement paragraphs alleging two prior felony
convictions: (1) manufacture or delivery of a controlled substance and
(2) possession of a controlled substance. Appellant pleaded “true” to the prior
convictions and the jury assessed punishment at seventy-five years’ confinement. In
two issues, appellant contends the trial court erred by admitting evidence of a prior
extraneous offense or wrongful act. Because we conclude that the trial court did not
abuse its discretion, we affirm.
BACKGROUND
After receiving numerous complaints of “constant foot traffic” at “late hours
of the night” at a Grayson County residence, officer Alex Aviles of the Sherman
Police Department conducted surveillance on several occasions. He observed people
entering the residence for “maybe two or three minutes” and then leaving,
“consistent with narcotics activity.” Officers obtained a search warrant for the
residence on November 15, 2018, after confidential informant Robert Morgan
purchased methamphetamine from appellant there. The methamphetamine Morgan
purchased from appellant was contained in a Camel cigarette box.
Aviles and a team of six or seven other officers executed the warrant the
following day, on November 16, 2018. Officers found appellant alone in a bedroom
sitting on the bed. There was a digital scale in a dresser drawer and other drug
paraphernalia in the nightstand. There were methamphetamine pipes on the floor.
“Within arm’s distance” of appellant, under the bed by the headboard, was a Camel
cigarette box containing methamphetamine. Appellant’s prescription medicine and
his mail were also in the bedroom. Appellant was arrested and was subsequently
indicted for knowing possession of methamphetamine in an amount of one gram or
more but less than four grams.
On January 2, 2020, the State filed a notice of its intent to introduce evidence
of extraneous offenses. The notice included a list of five specific acts in paragraphs
–2–
A through E, including two events on November 15, 2018, the day before appellant’s
arrest:
D. While on parole for the Defendant’s conviction in Gregg County
Cause Number 43808-A, the Defendant, on or about November
15, 2018, in Grayson County, Texas, did then and there
intentionally or knowingly deliver a Penalty Group 1 substance
in the amount Four Grams or More, But Less Than Two Hundred
Grams, to a confidential informant;
E. While on parole for the Defendant’s conviction in Gregg County
Cause Number 43808-A, the Defendant, on or about November
15, 2018, in Grayson County, Texas, did then and there
intentionally or knowingly possess a Penalty Group 1 substance
in the amount Four Grams or More, But Less Than Two Hundred
Grams, to a confidential informant; . . . .
The notice also included two general allegations in paragraphs F and G that appellant
“regularly possesses and delivers methamphetamine” and “regularly abuses
methamphetamine.” Appellant responded on January 15, 2020, by filing a motion in
limine and a motion requesting notice of specific information about any crime,
wrong, or act on which the State intended to introduce evidence at trial.
Trial commenced on January 27, 2020. Morgan, the confidential informant,
testified about his purchase of methamphetamine from appellant on November 15,
2018. Avila testified that later on the same day as Morgan’s purchase, officers
obtained a search warrant for appellant’s residence. Officers executed the warrant
the following day, on November 16, 2018, and arrested appellant for possession of
methamphetamine.
–3–
Appellant was not arrested, charged, or prosecuted for the alleged sale to
Morgan on November 15. Consequently, appellant objected to the admission of this
evidence on two grounds: (1) the State failed to give proper pretrial notice of its
intent to offer the evidence and (2) rule of evidence 404(b)(1) prohibits admission
of “character conformity evidence.” See TEX. R. EVID. 404(b)(1) (“Evidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character.”). The trial court overruled appellant’s objections and permitted the State
to introduce the evidence. At appellant’s request, however, the trial court gave the
jury a limiting instruction regarding consideration of the evidence.
The trial court rendered judgment on the jury’s finding of guilt and its
punishment verdict. In two issues on appeal, appellant contends the trial court erred
by admitting evidence of the sale to Morgan because (1) the State failed to give
proper notice of intent under rule of evidence 404(b)(2) despite appellant’s request,
and (2) the probative value of the evidence was outweighed by unfair prejudice
under rules of evidence 401 and 403.
ADMISSION OF EVIDENCE OF PRIOR EXTRANEOUS OFFENSE
If the State intends to introduce evidence of extraneous offenses at trial, it
must give the notice required by statute and rule. See TEX. CODE CRIM. PROC. art.
37.07(g); TEX. R. EVID. 404(b); Jaubert v. State, 74 S.W.3d 1, 2–3 (Tex. Crim. App.
2002). “On timely request of the defendant, notice of intent to introduce evidence
–4–
under this article shall be given in the same manner required by Rule 404(b), Texas
Rules of Evidence.” TEX. CODE CRIM. PROC. art. 37.07(g). Evidence rule 404(b)
provides:
(b) Crimes, Wrongs, or Other Acts
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses; Notice in Criminal Case. This evidence may
be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. On timely request by a
defendant in a criminal case, the prosecutor must provide
reasonable notice before trial that the prosecution intends to
introduce such evidence—other than that arising in the same
transaction—in its case in chief.
The purpose of the rule 404(b) notice requirement is to prevent surprise.
Hernandez v. State, 176 S.W.3d 821, 823 (Tex. Crim. App. 2005). Trial courts have
discretion to admit or exclude extraneous offense evidence. See McDonald v. State,
179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Ferrer v. State, 548 S.W.3d 115, 119
(Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). Consequently, we review the
trial court’s rulings for abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex.
Crim. App. 2001). We uphold a trial court’s admissibility decision “when that
decision is within the zone of reasonable disagreement.” Id.
In his first issue, appellant contends that the State failed to give “proper and
sufficient notice” of its intent to offer specific evidence that appellant delivered a
–5–
small amount of methamphetamine to the confidential informant on November 14,
2018, the day before the search warrant was executed in this case. The record
reflects, however, that the State’s pretrial notice did include the two November 15,
2018 offenses involving the confidential informant, as quoted above.1 The confusion
appears to result from the indictment, which alleges the date of the offense as “on or
about the 15th day of November, 2018,” while the evidence at trial established that
appellant was actually arrested the following day, on November 16. There is no
dispute, however, about the sequence of events. The alleged sale to the confidential
informant took place on the day before appellant was arrested for the offense at issue
in this appeal.
The indictment was sufficient to allow the State to prove an offense on
November 16 rather than November 15 as alleged. See Wright v. State, 28 S.W.3d
526, 532 (Tex. Crim. App. 2000), superseded on other grounds by statute, TEX.
CODE CRIM. PROC. art. 37.071 (“It is well settled that the ‘on or about’ language of
an indictment allows the state to prove a date other than the one alleged as long as
the date proven is anterior to the presentment of the indictment and within the
statutory limitation period.”). But the discrepancy apparently caused the confusion
reflected in the parties’ briefs and is the basis for appellant’s contention that the
confidential informant sale took place on November 14 and was not disclosed in the
1
At trial, the State also informed the court that on February 2, 2019, it provided the defense an “audio
debrief” of the confidential informant made on November 15, 2018, and the defense “listened to that item
on May 1st, 2019.”
–6–
State’s pretrial notice of intent. In sum, the record reflects that the State did provide
pretrial notice of its intent to introduce evidence of the extraneous offenses of
November 15, 2018. The trial court so found, stating “I think [paragraph] D [of the
pretrial notice] describes that.”
Further, as we discuss below, a defensive theory raised in opening statements
may “open the door” to extraneous offense evidence even if the State has not
provided notice in accordance with rule 404(b). Dabney v. State, 492 S.W.3d 309,
317–18 (Tex. Crim. App. 2016). We decide appellant’s first issue complaining of
lack of notice against him. See TEX. CODE CRIM. PROC. art. 37.07(g); TEX. R. EVID.
404(b); Jaubert, 74 S.W.3d at 2–3.
In his second issue, appellant contends that even if proper notice had been
given, the trial court erred by admitting evidence of the sale to Morgan because it
was not relevant and any probative value of the evidence was substantially
outweighed by unfair prejudice under rules of evidence 401 and 403. At the hearing
outside the jury’s presence, the State moved to introduce the evidence, arguing that
“it does go to show [appellant’s] intent, knowledge, his motive, his plan, his
preparation, and also goes to rebut . . . defensive theories” including appellant’s
contention that he did not have intentional or knowing possession or care, custody,
or control of the methamphetamine because there were other persons found in the
house at the time of appellant’s arrest. The State also argued that during opening
statements, appellant’s counsel advised the jury that (1) “[j]ust because the
–7–
defendant was found in the vicinity of the substance doesn’t mean he has
possession,” and (2) another witness, Kevin Sheren, would testify that the
methamphetamine found in appellant’s room actually belonged to Sheren. The State
also contended the evidence would show that police obtained the warrant
immediately after the sale to Morgan because appellant told Morgan he would have
more methamphetamine in about an hour.
As the State contended, appellant’s counsel made the following arguments in
his opening statement:
We talked yesterday about the two types of possession in a Grayson
County drug case. One of those was actual possession. Another one was
a constructive possession. This is what we can now discuss as a
constructive possession case. What that means is the drugs were not
actually found on my client. They were found in his vicinity.
You recall yesterday that we talked about the fact that just because
someone is in the vicinity or near drugs does not mean they possess
that. The State has a burden to prove beyond a reasonable doubt—to
link the methamphetamine between 1 and 4 grams to my client.
...
I anticipate you will hear from a Kevin Sheren this afternoon, assuming
the State rests pretty quickly this afternoon, who’s going to testify under
oath that that was his dope November 15th or 16, 2018. The State does
not tell you this, and I will. There were several people at the residence
that particular day: Kevin Sheren who’ll you hear from this afternoon
or possibly tomorrow morning, very extensive felony criminal history.
There’s a Bobby Benedict who was also found there at the scene of the
crime, very extensive felony criminal history that includes numerous
trips to prison. There is a Mary Bell who was also present, numerous,
numerous convictions for felony drug offenses. You’re going to hear
this through the officer’s testimony.
...
–8–
It’s [the State’s] proof right here to prove . . . what links the drugs to
my client.
At the time the State offered the evidence, defense counsel had cross-
examined officer Aviles about the criminal history of several other persons who were
at the residence when the warrant was executed. Defense counsel also asked Aviles
whether particular items of drug paraphernalia were found in locations other than
appellant’s bedroom in the home where appellant was arrested. Citing defense
counsel’s opening statement and cross-examination, the State argued appellant had
“opened the door to the issue” of appellant’s “intentional or knowing possession and
care, custody and control” of methamphetamine.
As the State argued at trial, a defensive theory raised in opening statements
may “open the door” to extraneous offense evidence. Dabney, 492 S.W.3d at 317–
18 (“Because Appellant presented his defensive theory in opening statements, the
State could use extraneous-offense evidence to rebut this theory in its case-in-chief
rather than waiting until the defense rested.”). The trial court noted that defense
counsel “raise[d] the issue that [the methamphetamine] wasn’t your client’s,” and
therefore opened the door to admission of the evidence about appellant’s transaction
with the informant the previous day. The court also noted that the methamphetamine
found in appellant’s room was in the same type of container—a Camel cigarette
package—as used in the transaction with the informant the day before. The trial court
made sure that the informant was available for cross-examination at trial. The
informant was subsequently called by the State as a witness, and defense counsel
–9–
cross-examined him. Finally, at defense counsel’s request, the trial court instructed
the jury that the evidence was being admitted only for a limited purpose.
We conclude that it was within the trial court’s discretion to admit the
extraneous offense evidence. See Powell, 63 S.W.3d at 438. We decide appellant’s
second issue against him.
CONCLUSION
We affirm the trial court’s judgment.
/Leslie Osborne//
LESLIE OSBORNE
JUSTICE
200150f.u05
Do Not Publish
TEX. R. APP. P. 47.2
–10–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN CARROLL MOORE, On Appeal from the 59th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-20-00150-CR V. Trial Court Cause No. 070415.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Osborne. Justices Pedersen, III and
Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 17th day of August, 2021.
–11–