Atilano v. State

Full title: MIGUEL ANTONIO ATILANO, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals For The First District of Texas

Date published: May 8, 2018

NO. 01-17-00564-CR (Tex. App. May. 8, 2018)

Opinion

NO. 01-17-00564-CR

05-08-2018

MIGUEL ANTONIO ATILANO, Appellant v. THE STATE OF TEXAS, Appellee

Jane Bland Justice

On Appeal from the 249th District Court Somervell County, Texas ^*
Trial Court Case No. 249-00854

* Pursuant to the Texas Supreme Court's docket equalization powers, this appeal was transferred from the Tenth Court of Appeals to this Court on July 14, 2017. See TEX. GOV'T CODE § 73.001; Order Regarding Transfer of Cases From Courts of Appeals, Misc. Docket No. 17-9066 (Tex. June 20, 2017).

MEMORANDUM OPINION

The State charged Miguel Antonio Atilano with felony possession with intent to deliver methamphetamine, in an amount of four grams or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.112(a), (d). A jury convicted Atilano of the charge and found true a felony enhancement paragraph for a previous conviction for felony burglary of a habitation. It sentenced him to 50 years' confinement and a $10,000 fine.

On appeal, Atilano contends that the two-year delay of the trial in his case violated his constitutional right to a speedy trial. He further contends that the trial court erred by limiting his opening statement and by allowing evidence of crime in the community associated with the use and distribution of methamphetamine. Finally, he challenges the sufficiency of the evidence to support his conviction. We conclude that the evidence is legally sufficient to support his conviction. And because Atilano has not demonstrated a violation of his right to a speedy trial or that the trial court erred in limiting the opening statement, and any error in admitting the challenged testimony did not affect Atilano's substantial rights, we affirm.

BACKGROUND

The State's principal witness was S. Gibson, a Patrol Sergeant with the Somervell County Sheriff's Department. One night in May 2015, Gibson observed a motorist who seemed to be having difficulty. The motorist drove his pickup truck partly onto the shoulder of the road, activated his hazard lights, and traveled much more slowly than the posted speed limit. The motorist eventually pulled his truck over and stopped, at which point Gibson pulled alongside and asked if everything was okay. The driver told Gibson that he was lost, so Gibson maneuvered his patrol car to position it behind the pickup truck. Portions of a video and audio recording of Gibson's dash-camera footage were played for the jury.

When Gibson approached the truck on foot, he smelled a strong odor of marijuana. The driver, Carl Fulton, Jr., and his passenger, Atilano, denied smoking marijuana. Gibson ordered Fulton to exit the truck and stand at its rear. He instructed Atilano to keep his hands visible.

Gibson called for backup. Atilano gave Gibson a false name, spelled his purported last name three different ways, and then claimed that he did not know how to spell it. Gibson asked Atilano for identification; Atilano said that he did not have any.

While Gibson was questioning Fulton at the rear of the truck, Fulton admitted that he had smoked marijuana. Before Gibson could clarify when that occurred, he observed Atilano moving around in the cab of the truck. He heard a heavy thudding or bumping sound. Gibson ordered Atilano to exit the truck.

Once backup arrived, Gibson searched the truck's cab. He did not find any contraband on the driver's side. But he found a plastic bag of what appeared to be methamphetamine on the passenger-side floorboard underneath socks and shoes that Atilano had left in the truck. Gibson and his backup, Deputy W. Hamilton, placed Fulton and Atilano under arrest.

Gibson resumed the search. He discovered a black velvet bag on the passenger-side floorboard between the front seat and the door. The bag contained a flashlight, a digital scale, two glass pipes, and multiple plastic bags. Gibson opened the flashlight; inside he found a plastic bag of what appeared to be more methamphetamine and a bag a pills. Gibson also found two loaded automatic pistols, one under the passenger's side of the front seat and the other behind the seat.

The suspected methamphetamine tested positive as the drug. A forensic scientist with the Department of Pubic Safety's crime laboratory later determined that one bag contained about 3.22 grams of methamphetamine and the other contained about 9.50 grams.

Gibson and two other law-enforcement officers, M. Gilbert and M. Goetz, testified that drug paraphernalia, like scales and small plastic bags, are commonly associated with the distribution of methamphetamine. Gilbert and Goetz also said that multiple people sometimes deal drugs together so that someone can provide security during sales.

Atilano did not testify in his own defense, but Fulton testified on Atilano's behalf. Fulton stated that he met Atilano about two weeks before the arrest. Fulton asked Atilano to accompany him to move some furniture but they became lost on the way. Fulton was on probation for possession of methamphetamine before his arrest for this incident. Fulton maintained Atilano's innocence. Fulton acknowledged that he used and sold drugs; he insisted that the contraband found in the truck belonged to him, not to Atilano. Fulton explained that he had placed the contraband under the middle portion of the front seat. He speculated that it slid over to the passenger side in transit. He also claimed ownership of the two pistols. According to Fulton, Atilano did not know that the contraband was in in the truck. Like Atilano, Fulton was indicted for possession with intent to deliver in connection with this incident. He pleaded guilty.

DISCUSSION

I. Legal Sufficiency

Atilano contends that the evidence is legally insufficient to prove that he knowingly possessed the methamphetamine.

A. Standard of review and applicable law

In a review for legal sufficiency, we view all of the evidence in the light most favorable to the verdict and determine whether a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). We must not re-evaluate the weight or credibility of the testimony; rather, we defer to the jury's resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

To obtain a conviction for unlawful possession of methamphetamine with the intent to deliver, the State must prove beyond a reasonable doubt that the defendant (1) exercised actual care, custody, control, or management over the drug, (2) knew it was methamphetamine, and (3) intended to deliver it to another. TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.112(a); see White v. State, 509 S.W.3d 307, 309 (Tex. Crim. App. 2017). Possession of the drug need not be exclusive—evidence that shows the defendant jointly possessed the drug with another can suffice. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Woodard v. State, 355 S.W.3d 102, 110 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

Whether direct or circumstantial, the evidence must establish that the defendant's connection with the drug was more than fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd). This is the "affirmative links" rule. Poindexter, 153 S.W.3d at 406 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). This rule is designed to protect an innocent bystander from conviction based solely upon his mere presence in the vicinity of someone else's drugs. Id. It recognizes that a defendant who is not in exclusive possession of the place where the controlled substance was found may not have knowledge of and control over the drugs; in such cases, additional independent facts and circumstances beyond mere presence must link him to the drugs. Tate v. State, 500 S.W.3d 410, 413-14 (Tex. Crim. App. 2016) (citing Poindexter, 153 S.W.3d at 406, and Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)).

The Texas Court of Criminal Appeals has instructed that evidence of one or more of following links may provide the logical force that demonstrates possession and not mere presence:

(1) the defendant's presence when a search is conducted;
(2) whether the drugs were in plain view;
(3) the defendant's proximity to and the accessibility of the drugs;
(4) whether the defendant was under the influence of drugs when arrested;
(5) whether the defendant possessed other drugs or contraband when arrested;
(6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee;
(8) whether the defendant made furtive gestures;
(9) whether there was an odor of drugs;
(10) whether drug paraphernalia or other contraband were present;
(11) whether the defendant owned or had the right to possess the place where the drugs were found;
(12) whether the place where the drugs were found was enclosed;
(13) whether the defendant was found with a large amount of cash; and
(14) whether the defendant's conduct indicated a consciousness of guilt.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Burrell v. State, 445 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). The State need not prove all of these links. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Further, the absence of some links is not evidence of innocence that weighs against those links that are present. Id. (citing Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976)). It is not the number of links that is dispositive, but the cumulative weight of the evidence. Evans, 202 S.W.3d at 162; James, 264 S.W.3d at 219. Though this framework guides an appellate court in analyzing the evidence, the dispositive inquiry remains the one set forth in Jackson—whether the combined and cumulative force of the evidence and any permissible inferences permit a jury to rationally find the defendant guilty of the offense beyond a reasonable doubt. Tate, 500 S.W.3d at 414.

B. Analysis

The evidence showed multiple circumstances linking Atilano to the methamphetamine. The cab of Fulton's truck smelled of another drug, marijuana. Gibson observed and heard Atilano moving about in the cab contrary to Gibson's instructions. See Garcia v. State, 218 S.W.3d 756, 763-64 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (furtive movements—reaching down between legs toward floorboard where the drugs were located—was one link between drugs and defendant). Atilano was present when Gibson searched the truck and found the methamphetamine. See Ferguson v. State, 313 S.W.3d 419, 426 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (defendant was passenger in van when it was stopped and searched). The methamphetamine was found in the enclosed space of the truck's cab. See Deshong, 625 S.W.2d at 329 (car was an enclosed space); Robinson v. State, 174 S.W.3d 320, 327 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (truck was enclosed space). Gibson found the smaller bag of methamphetamine on the floorboard of the front passenger side, the larger bag of methamphetamine and drug paraphernalia on the passenger side in the space between the seat and the door, one pistol under the front seat on the passenger side, and the other pistol behind that seat. As a passenger in the truck, all of these items were within Atilano's reach. See Deshong, 625 S.W.2d at 329 (marijuana found on driver's side floorboard conveniently accessible to driver); Palmer v. State, 857 S.W.2d 898, 901 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (sooty crack pipe on floorboard at defendant's feet was one link between drugs and defendant). The smaller bag of methamphetamine was beneath Atilano's own socks and shoes. This bag was so close to Atilano and his personal possessions that reasonable jurors could conclude that he was aware of its presence and tried to conceal it. See Williams v. State, 313 S.W.3d 393, 398 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (evidence that firearm was directly under passenger's seat, next to his feet and within easy reach, supported reasonable inference that he knowingly possessed it); see also Hall v. State, 783 S.W.2d 14, 15 (Tex. App.—Houston [14th Dist.] 1989, pet. ref'd) (evidence that defendant's glasses were directly above cellophane-wrapped cocaine on pavement under front of car provided link between him and drugs).

Because the evidence established a number of affirmative links to the methamphetamine, a rational jury could conclude that Atilano knowingly possessed it. We therefore hold that legally sufficient evidence supported the jury's finding of knowing possession.

II. Right to a Speedy Trial

Atilano was tried two years after his arrest. He contends that the delay violated his right to a speedy trial under the Sixth Amendment to the United States Constitution.

A. Standard of review and applicable law

The Sixth Amendment to the United States Constitution, which is applicable to the States by way of the Fourteenth Amendment, guarantees an accused the right to a speedy trial. Balderas v. State, 517 S.W.3d 756, 767 (Tex. Crim. App. 2016). In assessing speedy-trial claims, we apply the test established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972). See id.

Under the Barker test, we first consider whether the length of delay between the arrest or formal accusation and trial was so long as to be presumptively prejudicial. Id. at 767, 772; Gonzales v. State, 435 S.W.3d 801, 808-09 (Tex. Crim. App. 2014). In general, a delay approaching one year is presumptively prejudicial and requires consideration of the three additional factors, together with the length of the delay. Balderas, 517 S.W.3d at 767-68. The three additional factors are (1) the State's explanation for the delay, (2) whether the accused timely asserted his right to a speedy trial, and (3) whether the accused was prejudiced by the delay. Id. at 767.

The State bears the burden of justifying any delay. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). But the defendant must prove that he asserted the right to a speedy trial and was prejudiced by the delay. Id. The defendant's burden varies inversely with the State's culpability for the delay. Id. The greater the State's responsibility for the delay, the less the defendant must show diligence in asserting his right to a speedy trial or actual prejudice. Id. at 280-81.

In reviewing speedy-trial claims, we defer to the trial court's findings of fact when supported by the record, and we draw reasonable inferences from those facts necessary to support the trial court's findings. Balderas, 517 S.W.3d at 767-68. The balancing of the Barker factors, however, is a legal question, which we review de novo. Id. at 768.

B. Analysis

Atilano was arrested in May 2015 and went to trial in May 2017. A delay of two years is presumptively prejudicial. See Balderas, 517 S.W.3d at 768; Cavitt v. State, 507 S.W.3d 235, 245 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Because the delay stretched beyond the one-year threshold, the length of the delay weighs in favor of a finding of a violation of Atilano's speedy-trial right. See, e.g., Balderas, 517 S.W.3d at 768 (delay of more than eight years weighed heavily in favor of finding of violation); Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (delay of three and a half years).

Countervailing considerations, however, outweigh the length of the delay. First, Atilano caused much of the delay by repeatedly requesting and receiving new counsel. Complaining of a lack of communication from his initial court-appointed attorney, Atilano requested the appointment of another in October 2015. The trial court granted his request. Atilano was dissatisfied with his second court-appointed attorney as well and agreed to his withdrawal in January 2016. Atilano likewise was dissatisfied with his third court-appointed attorney; he requested that she withdraw as his counsel first in May 2016 and then again in June 2016, three days before his scheduled trial date, at which time the court appointed a fourth attorney to represent him.

Second, the trial was delayed at the defense's request. Atilano's fourth court-appointed attorney requested and received several continuances. Atilano was present each time his attorney made these requests and did not object to delaying the trial.

Under these circumstances, the second Barker factor weighs against a finding of a violation of Atilano's speedy-trial right. See Balderas, 517 S.W.3d at 768 (delay caused by defendant or defense counsel weighs against defendant); Webb v. State, 36 S.W.3d 164, 173 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (defendant's hiring of new counsel three days before initial trial date caused delay that weighed against his speedy-trial claim); Halbert v. State, 881 S.W.2d 121, 127 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (defendant's request for new attorney and agreement to have case reset multiple times weighed against speedy-trial claim).

Atilano first raised his right to a speedy trial during a November 2015 hearing. As noted, however, Atilano insisted on a new attorney, his fourth in the space of just over a year, three days before his original June 2016 trial date. When the court told Atilano that the appointment of new counsel would delay his trial, Atilano held firm to his request for new counsel. Afterward, Atilano raised his right to a speedy trial again in March and May 2017, but only after seeking and receiving several continuances and when trial already had been reset for later in May. These circumstances further undermine his speedy-trial complaint. See Emery v. State, 881 S.W.2d 702, 709 (Tex. Crim. App. 1994) (multiple continuances sought by defense immediately after right to speedy trial asserted weighed against defendant); Smith v. State, 436 S.W.3d 353, 366 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (repeated acquiescence in resetting case for trial, including on same day that speedy- trial motion was filed, was inconsistent with assertion of right); cf. Thompson v. State, 804 S.W.2d 577, 579 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (defendant consistently asserted right to speedy trial at every opportunity). In sum, Atilano was not persistent in seeking a speedy trial and his and his counsel's conduct was largely inconsistent with a desire for a speedy trial. The third Barker factor therefore weighs against a finding of a violation of Atilano's speedy-trial right. See Balderas, 517 S.W.3d at 771 (substantial delay attributable to defense indicates that defense did not really want a speedy trial).

Atilano contends that the length of delay constituted oppressive pretrial incarceration and caused him anxiety, but he does not identify any way in which the delay impaired his defense at trial. See id. at 772 (assessment of prejudice entails examination of three interests that speedy trial protects: preventing oppressive pretrial incarceration, minimizing the accused's anxiety and concern, and limiting possibility of impairment of his defense). The record contains no evidence as to this factor, as Atilano did not file a motion requesting a speedy trial and the trial court did not hold a hearing on the matter. Because a showing of oppression or anxiety beyond the ordinary burdens associated with pretrial detention necessarily depends on the particular facts of given case, the fourth Barker factor does not weigh in favor of a speedy-trial violation. See Guevara v. State, 985 S.W.2d 590, 593 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) (prejudice cannot be established or refuted if the trial court does not hold hearing on right to speedy trial); cf. Balderas, 517 S.W.3d at 772 (defendant testified at speedy-trial hearing as to adverse impact of delay). Accordingly, on this record, Atilano has not carried his burden to show prejudice. See Cantu, 253 S.W.3d at 280-81.

Balancing the Barker factors as a whole, we hold that Atilano's right to a speedy trial was not violated. While the delay was not insignificant, it largely was caused by Atilano and his trial attorney. A defendant cannot delay his own trial and then leverage that delay into a dismissal of the charges against him. See State v. Munoz, 991 S.W.2d 818, 825 (Tex. Crim. App. 1999) (defendant "was in large part responsible for the delay" and this was "probably dispositive" of his speedy-trial claim).

III. Opening Statement Limitations

Atilano contends that the trial court erred in sustaining the State's objections to portions of defense counsel's opening statement.

A. Standard of review and applicable law

A defendant has a statutory right to have his counsel make an opening statement identifying the nature of his defenses and the facts he expects to prove in support. TEX. CODE CRIM. PROC. art. 36.01(a)(5). But the trial court has discretion to limit the character and extent of opening statements. Dugan v. State, 199 S.W. 616, 617 (Tex. Crim. App. 1917); Paroline v. State, 532 S.W.3d 491, 495 (Tex. App.—Texarkana 2017, pet. stricken); Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.—Waco 2006, no pet.). For example, the trial court may foreclose counsel from commenting on inadmissible evidence or presenting jury argument. See Dugan, 199 S.W. at 617; Guillory v. State, 397 S.W.3d 864, 868 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The trial court abuses its discretion only if the limits it places on an opening statement are outside the zone of reasonable disagreement. Paroline, 532 S.W.3d at 495; Donnell, 191 S.W.3d at 867. Even if the trial court abuses its discretion, its error is reversible only if it affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b); see Guillory, 397 S.W.3d at 867. The erroneous limitation of an opening statement affects a defendant's substantial rights if, considering the record as a whole, the error substantially influenced the jury or its verdict. Guillory, 397 S.W.3d at 867.

B. Analysis

Atilano complains of two instances when the trial court sustained objections to his attorney's opening statement. In the first instance, defense counsel sought to describe an officer's recollection about an affidavit that Fulton had signed:

[Defense]: You will hear from the officer that Mr. Fulton, from the git-go, the day of the arrest, May 31st, says these drugs are mine, they are not Mr. Atilano's. On June 11, 2015, Mr. Fulton signed a notarized affidavit claiming one hundred percent of the drugs.

[State]: I would object, Your Honor. He's clearly getting into hearsay again.

[Court]: I'll sustain the objection.

A peace officer's recollection as to what another witness told him and that other witness's affidavit are both out-of-court statements offered for the truth of the matter asserted, and therefore excludable as hearsay. TEX. R. EVID. 801(d), 802. On appeal, Atilano has not identified an applicable hearsay exception. Thus, we hold that the trial court did not abuse its discretion in sustaining the State's hearsay objection to defense counsel's discussion of this evidence in his opening statement. See Dugan, 199 S.W. at 617; Guillory, 397 S.W.3d at 868.

In the second instance, counsel described that the evidence "goes on and on," and twice described the date that Fulton pleaded guilty as "important:"

[Defense]: This goes on and on. You will hear that Mr. Fulton pled guilty to these charges on September 14th, 2016. And the reason this is important is, the date's important, guys, because Mr. Fulton from the git-go, did say they are not his, they are mine, those are my drugs. He was saying this before he took the plea.

[State]: I'll object to hearsay, Your Honor, and I'll object to argument during opening statement. It should be simply limited to the preview of the evidence that he anticipates is go[ing] to come out.

[Defense]: Judge, I anticipate Mr. Fulton is going to say this. He's been subpoenaed.

[Court]: I'll sustain the objection.

The anticipated in-court testimony of a witness is not hearsay. But defense counsel's discussion of this evidence as going "on and on" and his emphasis that the date was "important" was jury argument rather than a mere preview of the evidence. Accordingly, the trial court was within its discretion in sustaining the State's objection. See Dugan, 199 S.W. at 617; Donnell, 191 S.W.3d at 867.

Even if the trial court had erred in limiting defense counsel's opening statement in these two instances, we would hold that any error was harmless. Atilano's defense was a straightforward one, namely that the drugs belonged to Fulton alone. Fulton testified that the drugs and drug paraphernalia were his and not Atilano's. Fulton also testified that he had placed these items underneath the front seat of the truck and did not mention them to Atilano. In short, Fulton unequivocally proclaimed Atilano's innocence.

Atilano's counsel reminded the jury of Fulton's testimony during closing argument. Based on the record as a whole, the limitations that the trial court imposed on defense counsel's opening statement did not compromise Atilano's defense or the effectiveness of his counsel's presentation of the evidence and therefore did not affect Atilano's substantial rights.

IV. Challenge to Admission of Testimony

Lastly, Atilano contends the trial court erred in admitting Gibson's testimony about other crimes associated with the use and sale of methamphetamine because either it was irrelevant or any relevance it possessed was substantially outweighed by a danger of unfair prejudice.

A. Standard of review and applicable law

We review a trial court's rulings on the admissibility of evidence for abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). We may reverse an evidentiary ruling only if was so clearly wrong as to be outside the zone of reasonable disagreement. Id. at 83. We will affirm if the ruling was correct under any theory of law applicable to the case, regardless of the trial court's rationale. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010).

To complain about an evidentiary ruling on appeal, the complaining party must have made a proper objection at trial. TEX. R. EVID. 103(a)(1). The complaint he raises on appeal must comport with the objection he made at trial. Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016).

In addition, a party cannot obtain reversal due to an erroneous evidentiary ruling unless it affected his substantial rights. TEX. R. EVID. 103(a). An error that did not influence the jury or had but slight effect, when considered in light of the record as a whole, is harmless. Thomas, 505 S.W.3d at 927.

Only relevant evidence is admissible. TEX. R. EVID. 402. Evidence is relevant if it has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable than it would be without the evidence. TEX. R. EVID. 401; Henley, 493 S.W.3d at 83. Thus, to be relevant, evidence must be material and probative. Henley, 493 S.W.3d at 83-84.

B. Analysis

During the State's examination of Patrol Sergeant Gibson in the guilt-innocence phase of trial, the defense objected to the relevance of testimony about the problems associated with methamphetamine:

[State]: Would you say methamphetamine is a problem in the community?

[Gibson]: Yes, sir.

[State]: Can you tell us just some of the problems that you've seen associated with methamphetamine?

[Defense]: Objection, Judge. Relevance.

[State]: Your Honor, it goes to exactly why this offense is taken seriously as it is. It also goes to his experience with the narcotic.

[Court]: Overrule the objection.


* * *

[State]: Go ahead, sir.

[Gibson]: A lot of the users, they do bad things to get to that drug; stealing, hurting people. Also, people that deal with it, the criminals, they do the same thing; hurt people to get the money or to get more dope. It causes a lot of crime.

When placed in its broader context, Gibson's testimony was relevant in part. The principal dispute before the jury was whether the methamphetamine belonged to Fulton alone or both him and Atilano. Shortly after eliciting the testimony from Gibson about the problems associated with methamphetamine, the State asked Gibson whether it was unusual to encounter multiple people working together to deal drugs. Referring back to his testimony about the problems associated with methamphetamine, Gibson said that it was not unusual. He explained:

Because, like I said, it's a dangerous world. And usually when somebody's going to deal with it, they want to have backup of some sort, somebody to watch their back, so if the other people try to do something. You have people that are using that might do something greedy or trying to steal it from the people, or it might be the dealer trying to get the money, you know, somebody trying to steal the money from somebody. So it's a dangerous world, so a lot of times they will have backup. If you go into it by yourself, it's really kind of dumb.

Thus, evidence as to some of the problems associated with methamphetamine—the crime surrounding the methamphetamine trade—was material to the issue of knowing possession, an essential element of the charged offense, and probative in that it made it more probable that Fulton and Atilano possessed the drugs together than it would have been without this evidence. To this extent, the trial court did not abuse its discretion in overruling defense counsel's relevancy objection. See Henley, 493 S.W.3d at 82-84.

To the extent that Gibson testified more generally about problems associated with methamphetamine affecting the community at large, however, his testimony was immaterial because it did not bear on a fact that the State was required to prove to obtain a conviction. See Henley, 493 S.W.3d at 83-84 (evidence is material if it addresses "either an elemental fact or an evidentiary fact from which an elemental fact can be inferred"). That said, Gibson's irrelevant testimony was brief and isolated, consisting of a single question and answer in the roughly 70 pages of his transcribed testimony. His testimony was general in nature and non-inflammatory. We also note that Gibson did no more than touch on a subject—the societal impact of drugs—that the State in closing may ask jurors to consider in their deliberations. See King v. State, 4 S.W.3d 463, 464 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (argument about "war on drugs" permissible as plea for law enforcement); Morrow v. State, 757 S.W.2d 484, 494 (Tex. App—Houston [1st Dist.] 1988, pet. ref'd) (argument that drugs were "killing this society" and were "available to children" permissible as plea for law enforcement); Layne v. State, 752 S.W.2d 690, 694-95 (Tex. App.—Houston [1st Dist.] 1988, pet. ref'd) (argument about right of community "to be free from those that profit from the misery that drugs cause users and their families," stopping flow of narcotics into community, and preventing drugs from reaching children permissible as plea for law enforcement). Thus, on this record, we hold that the trial court's erroneous admission of Gibson's irrelevant testimony about the impact of methamphetamine on the community was harmless beyond a reasonable doubt. See, e.g., Motilla v. State, 78 S.W.3d 352, 354-55, 359 (Tex. Crim. App. 2002) (murder victim's mother's testimony as to circumstances of his adoption in guilt-innocence phase of trial was irrelevant and somewhat emotional but was brief and not so charged as to prevent jury from considering evidence, which included substantial proof of guilt, and thus was harmless); Skinner v. State, 956 S.W.2d 532, 545 (Tex. Crim. App. 1997) (witness's brief, isolated testimony during punishment-phase of trial as to whether her ex-husband, on trial for capital murder, had importuned her to engage in sodomy was irrelevant but did not influence jury's verdict and therefore was harmless).

Atilano did not object in the trial court that the probative value of evidence as to the problems associated with methamphetamine was substantially outweighed by a danger of unfair prejudice. See TEX. R. EVID. 403. Therefore, he has not preserved this complaint. See TEX. R. EVID. 103(a)(1); TEX. R. APP. P. 33.1(a); Thomas, 505 S.W.3d at 924.

CONCLUSION

We affirm the judgment of the trial court.

Jane Bland

Justice Panel consists of Justices Bland, Lloyd, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).