Opinion
Nos. 05-06-00963-CR, 05-06-00964-CR
Opinion Filed December 20, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause Nos. F04-85387-NQI F06-00416-UQI.
Before Justices, MORRIS, BRIDGES, and O'NEILL. Opinion By Justice O'Neill.
OPINION
Appellant Mark Anthony Delapaz appeals his convictions for tampering with physical evidence and aggravated perjury. Appellant raises eight issues. In his first four issues, appellant challenges the legal and factual sufficiency of the evidence to support his convictions. Appellant also contends the trial court erred in (1) admitting extraneous offense evidence, (2) sustaining the State's Batson objection, (3) denying his motion to transfer venue and (4) stacking his sentences with the sentence in another cause. Because we conclude the trial court committed harmful error in admitting extraneous offense evidence, but the evidence is legally sufficient to support appellant's convictions, we reverse the convictions and remand to the trial court for further proceedings consistent with this opinion. Appellant was a Dallas police officer. The events that led to his two convictions arise out of the wrongful arrest of Jose Vega. The night before Vega's arrest, Daniel Alonso, a paid confidential informant for the Dallas Police Department, and his friend Roberto Gonzalez planted a large amount of fake cocaine in a car at the service station where Vega worked. The following day, appellant asked another Dallas police officer to set up video surveillance outside the service station. Appellant later met with Alonso at a nearby convenience store. Appellant, in violation of police procedure, did not search Alonso or his car before the "buy." Further, an unauthorized individual, Roberto Gonzalez, was with the Alonso. After meeting with appellant, Alonso went to the service station. Appellant and his partner Eddie Herrera followed in their covert vehicle. The surveillance videotape shows Alonso arriving at the service station, parking his car, and walking into a garage bay. At about the same time, appellant's vehicle is seen driving by the service station. After the "buy," Alonso met appellant at the 7-11 and gave him two kilos of what appeared to be cocaine. Police obtained a search warrant and found about twenty more kilos of "cocaine" in a car at the service station. Vega was arrested. Police later discovered the drugs were fake. Following Vega's arrest, appellant claimed — both in a police report and later under oath at a prior trial — that he observed Alonso come into face to face contact with Vega inside the garage bay. According to appellant, he observed this contact as he and Herrera drove by the service station. The "contact" was relevant because it corroborated Alonso's claim that Vega sold him drugs. In a subsequent investigation, appellant and his partner Herrera were questioned because the surveillance tape did not show any contact between Alonso and Vega. The State indicted appellant for fabrication of evidence and perjury because it alleged appellant lied about having seen contact between Vega and Alonso. In addition to the surveillance tape, to show appellant lied, the State relied on the testimony of Vega and appellant's partner Eddie Herrera. Vega testified that he did not make contact with Alonso, and he was actually under a van working on its engine at the time Alonso was in the garage bay. Vega conceded he sued the City for his wrongful arrest and three month incarceration. He settled for $460,000. Herrera testified that he could not see Alonso and Vega make contact when he and appellant drove by the service station. Moreover, Herrera claimed that when police began investigating, appellant asked him to lie and claim they saw Vega and Alonso make contact. Herrera admitted that he has three pending felony cases, including a case for perjury. Herrera also admitted the prosecutor told him he would consider his cooperation in this case in disposing of the cases against Herrera. The prosecutor said the plea offer could be anywhere from dismissal of the charges, to probation, to a term of years. Appellant's defense was that he did not lie about seeing Alonso make contact with Vega. Appelllant testified that when he and Herrera met Alonso at the convenience store before the buy, he "visually" searched Alonso and the car. He said Gonzalez was not with Alonso at that time although he acknowledges Gonzalez is seen in Alonso's car on the surveillance tape. After he followed Alonso to the service station, he and Herrera drove by the service station. As they did so, appellant looked back over this shoulder, and saw Alonso just inside the garage bay. For a brief moment, he saw Vega "making contact" with Alonso. Appellant denied ever having asked Herrera to lie. In his first and third issues, appellant claims the evidence is legally insufficient to support his convictions. In assessing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict to determine whether a rational juror could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Appellant contends the evidence is legally insufficient to support both convictions because the State failed to prove beyond a reasonable doubt that he lied, either in his police report or at his subsequent trial, about seeing Alonso make contact with Vega. To support this issue, he relies entirely on photographs taken by his investigator after the incident. These photographs show a man standing about three feet inside the garage bay. According to appellant, these photographs were taken from about where he was when he saw Vega and Alonso making contact and show that, contrary to the State's evidence, it was possible for him to have seen such contact. In these issues, appellant completely disregards Vega's testimony that he did not make contact with Alonso. The jury as trier of fact was free to believe Vega's testimony. We conclude the evidence is legally sufficient to show appellant lied about having seen Alonso and Vega make contact. We resolve the first and third issues against appellant. We now turn to appellant's fifth issue in which he asserts the trial court erred in admitting evidence of extraneous offenses at guilt innocence. Appellant testified in his own defense that he did not commit the offenses alleged and that he did see Alonso make contact with Vega. He also denied that he had asked Herrera to lie for him. On cross-examination by the State, appellant acknowledged that his story was different than Herrera's. The prosecutor asked whether Herrera was "making up" his story, and appellant replied that Herrera was lying. In rebuttal, the State sought to introduce extraneous offense evidence showing that appellant had falsified evidence in other cases. Specifically, that he had made false statements on arrest reports after confidential informants had planted fake drugs on two other men. The prosecutor's stated theory of admissibility was that the extraneous offense evidence rebutted the defensive "issue" that the State's witnesses lied. The trial court overruled appellant's objection and permitted the State to present the extraneous offense evidence. We review rulings on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd). The trial court will not be overturned as long as its ruling is within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542; Carter, 145 S.W.3d at 710. Generally, evidence of extraneous offenses may not be used against an accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex.Crim.App. 2005); see also Tex. R. Evid.404(b). Extraneous-offense evidence is, however, admissible under rule 404(b) if the extraneous-offense evidence is relevant to a fact of consequence apart from its tendency to show character conformity. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007); Johnston v. State, 145 S.W.3d 215 (Tex.Crim.App. 2004). For example, extraneous-offense evidence is admissible when it is offered to rebut an affirmative defense or a defensive issue that negates one of the elements of the crime. Casey, 215 S.W.3d at 879; Powell v. State, 63 S.W.3d 435, 438-440 (Tex.Crim.App. 2001). The issue presented is whether evidence of appellant's extraneous misconduct was relevant to a "fact of consequence" other than its tendency to prove character conformity. The only "fact of consequence" the State asserts the evidence was relevant to was to rebut appellant's claim that Herrera was lying. However, on direct examination, appellant did no more than deny committing the acts the State alleged. Appellant did not accuse Herrera of lying until he was cross-examined by the State and specifically asked by the prosecutor whether Herrera was making up his story. As a general rule, the State cannot itself elicit the alleged defensive issue it then wishes to rebut with extraneous offense evidence. Wheeler v. State, 67 S.W.3d 879, 885 (Tex.Crim.App. 2002); Bass v. State, 222 S.W.3d 571, 577 (Tex.App.-Houston [14th Dist.] 2007, pet. granted). Moreover, we conclude appellant's attacks on Herrera's credibility was not a "defensive issue" that opened the door to extraneous offense evidence. In Webb v. State, the Houston Fourteenth Court of Appeals sitting en banc concluded extraneous offenses are not admissible to rebut a claim that the State's complaining witness was not credible. Webb v. State, 36 S.W.3d 164, 180-81 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In that case, a topless dancer accused the defendant of sexual assault. The defendant claimed that, at the time of the alleged assault, the victim was so intoxicated she was mistaken or unsure about the encounter. The State presented extraneous offense evidence that the defendant assaulted another topless dancer to rebut the defendant's claim that the complainant's testimony was not reliable. The Houston court concluded the trial court erred in admitting the State's evidence. It explained that the only ultimate fact in dispute was whether the defendant committed the offense and the extraneous misconduct only had probative value in that it proved character conformity. Id. at 180-81. The court noted the evidence was not admissible to rehabilitate the complainant after the defendant's challenges to her credibility. Id. at 181 n. 9. The court explained that allowing extraneous offenses to rebut a challenge to the credibility of the State's witnesses "would totally eviscerate rule 404(b) and the policies underlying the prohibition against the admission of such evidence."Id. The only "defensive issue" raised by appellant was that he did not commit the acts alleged and the State's witnesses claiming otherwise were not credible. Appellant's basis for challenging Herrera's credibility was that he admitted lying to the grand jury and he was hoping for a plea deal with the State. The extraneous offense evidence clearly was not relevant to these attacks on Herrera's credibility. The State wholly fails to articulate how the extraneous offense evidence was otherwise relevant to Herrera's truthfulness, much less relevant to any "fact of consequence" other than its tendency to show character conformity. Additionally, we would be hard pressed to find a disputed criminal case in which the credibility of the State's witnesses was not somehow attacked. Such general attacks on credibility may call into question the State's proof, but do not negate any element of the crime. Thus, it is not the type of defensive "issue" that can be rebutted with extraneous offense evidence. Cf. Johnston v. State, 145 S.W.3d 215, 219 (Tex.Crim.App. 2004) (extraneous offense evidence admissible to rebut defensive issue that negates element of offense). Moreover, we agree with the Houston court that allowing such attacks to open the door to extraneous offense evidence would render rule 404(b) virtually meaningless. See Webb, 36 S.W.3d at 181 n. 9. We conclude that appellant, by attacking the credibility of the State's witnesses, did not raise a defensive issue that could then be rebutted by extraneous offense evidence. We conclude the trial court abused its discretion in admitting the evidence. We now turn to whether admission of the evidence was harmful. We must disregard error in the admission of extraneous offense evidence if it did not affect a defendant's substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We will not reverse a conviction for non-constitutional error if, after examining the record as a whole, we have a fair assurance the error "did not influence the jury, or had but a slight effect." Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). If one cannot say with fair assurance that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. Carter, 145 S.W.3d at 710. The inquiry cannot be merely whether there was sufficient evidence to support the result, apart from the error. Id. Rather, we determine whether the error itself had a substantial influence. Id. If so, or if one is left in grave doubt, the conviction cannot stand. Id. In assessing the likelihood that the jury's decision was adversely affected by the error, we consider the entire record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case. Morales, 32 S.W.3d at 867; Carter, 145 S.W.3d at 710-11. We may also consider the jury instructions given by the trial judge, the State's theory, any defensive theories, and closing arguments. Morales, 32 S.W.3d at 867; Carter, 145 S.W.3d at 711. The introduction of extraneous offenses to the jury is inherently prejudicial and harms the defendant because it requires the defendant to defend against not only the offense charged, but also his uncharged actions. Abdnor v. State, 871 S.W.2d 726, 738 (Tex.Crim.App. 1994); Carter, 145 S.W.3d at 710. The admission of the extraneous offense also prejudices the defendant because of the jury's natural inclination to infer guilt of the charged offense from the extraneous offenses. Abdnor, 871 S.W.2d at 738; Carter, 145 S.W.3d at 710. Here, the main disputed issue in the case was whether appellant saw Alonso make contact with Vega. To prove he did not observe such contact, the State presented Vega's testimony as well as the videotape and Herrera's testimony showing it would have been almost impossible for appellant to have seen what he claimed. Appellant on the other hand testified he did see contact between Alonso and Vega. He also attempted to show that the angle from which he looked into the garage bay was not identical to the angle on the video. He thus urged the video did not establish he lied. Appellant also presented evidence that each of the State's key witnesses had reasons to testify against him. The extraneous offense evidence consisted of the testimony of six witnesses and documentary evidence that appellant had falsified evidence in two other cases, leading to the incarceration of two innocent men. Both extraneous offenses concerned appellant's corroboration of confidential informants that had planted fake drugs. The time necessary to develop this evidence was fairly significant. Moreover, this type of evidence against a police officer would likely have had a significant impact on a jury and could easily distract the jury from the issue of whether appellant falsified evidence in this particular case. The State emphasized the extraneous offenses in closing, discussing them on multiple occasions. For example, the State argued that Vega and the victims in the extraneous crimes "all told you the same thing" and maintained appellant had ruined the life of one of the extraneous victims. The prosecutor argued that the reason the extraneous offense evidence came in was to show that appellant lied about seeing contact "every time" because such contact was necessary to corroborate a confidential informant's story. The prosecutor added the evidence was presented to refute appellant's claims that the State's witnesses lied. Finally, the prosecutor argued that the two other offenses showed that appellant, not its witnesses, were committing perjury. Viewing the record as a whole, we cannot say with any assurance that the error had only a "slight" effect on the jury. We are thus left with "grave doubt" whether the error had a substantial influence on the jury's verdict. Under these circumstances, we cannot disregard the error as harmless. We resolve the fifth issue in appellant's favor. Because of our disposition of this issue, we need not reach appellant's remaining issues. We reverse appellant's convictions and remand for further proceedings consistent with this opinion.
Later, in Bass v. State, the Fourteenth court took Webb a step further and concluded extraneous offenses were not admissible to rebut a fabrication defense. Bass v. State, 222 S.W.3d 571, 576-77 (Tex.App.-Houston [14th Dist.] 2007, pet. granted); accord Newton v. State, 2007 WL 1704904 (Tex.App.-Waco 2007, pet. filed). But cf. Casey v. State, 215 S.W.3d 870, 880-82 (Tex.Crim.App. 2007). A fabrication defense is one in which a defendant contends the allegations are entirely made up. Bass, 222 S.W.3d at 576-77. Here, appellant never claimed Herrera "fabricated" the allegations against him or that the allegations against appellant originated from Herrera. We thus need not determine whether extraneous evidence may be admissible to rebut claims of fabrication.