Opinion
No. 07-16-00220-CR
03-07-2017
VERNON RAYNARD ANDERSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas
Trial Court No. 70,622-E, Honorable Douglas Woodburn, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
A jury convicted appellant Vernon Raynard Anderson of possession of one gram or more but less than four grams of a controlled substance, methamphetamine. It assessed punishment, enhanced by two prior felony convictions, at thirty-eight years' confinement in prison. Through one issue appellant argues the trial court erred by preventing him from presenting a defense. We will overrule appellant's issue and affirm the trial court's judgment.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a),(c) (West 2010). Possession of a controlled substance under this statute in the amount charged is a felony of the third degree. Id.
Under Texas Penal Code section 12.42(d), if it is shown on the trial of a felony offense that the defendant was previously convicted of two felony offenses, and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction becoming final, on conviction the defendant shall be punished by imprisonment for life, or for any term of not more than 99 years or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2016). Here, at the outset of the punishment phase of trial appellant plead true to the two enhancement felony convictions.
Background
In the early morning of June 9, 2015, an Amarillo police officer (first officer) observed a vehicle traveling on a public road with an inoperative license plate light. He executed a traffic stop and identified the driver as appellant. Amber Vela was the only passenger. A background check revealed two outstanding traffic warrants against appellant.
During the officer's pat-down of appellant, a bag containing a white substance fell from appellant's pants. According to the first officer's testimony and a video recording in evidence, appellant accused the first officer of possessing the bag and attempting to plant evidence. The first officer suspected the substance was methamphetamine. Department of Public Safety laboratory analysis later proved his suspicion correct. The first officer arrested appellant on the warrants and for possession of a controlled substance.
Meanwhile, a second officer arrived at the location of the stop and dealt with Vela. On cross-examination, the second officer acknowledged he had previously contacted Vela for possession of drug paraphernalia. He further testified Vela "nodded her head yes" when, during the traffic stop, he asked if she had used methamphetamine that day. He was aware Vela was a "user" and believed she possibly possessed methamphetamine at the stop. Vela consented to the search of her purse and a larger bag she possessed. The second officer acknowledged he did not ask Vela if the methamphetamine that fell from appellant's pants was hers. Vela was not charged with an offense.
During cross-examination of the second officer concerning Vela, the following exchange occurred:
Q. [By Defense Counsel]: Did you thoroughly search the big bag or whatever it was there?
[Prosecutor]: Your Honor, I'm going to object to the relevance of this line of questioning.
The Court: Yeah; I'll sustain.
Q. [By Defense Counsel]: Did you--we see on the video that you had some prescription bottles of medication. Is that correct?
[Prosecutor]: Again, Your Honor, I'm going to object to the relevance of this line of questioning.
The Court: Sustained.
Q. [By Defense Counsel]: She was not charged with anything there that night. Is that correct?
[Prosecutor]: Your Honor, again, I object to relevance.
The Court: Sustained.
* * *
Q. [By Defense Counsel]: Did you ask her if she was still in the Backpage?
[Prosecutor]: I'm going to object to the line of questioning again for relevance purposes.
The Court: Sustained.
Through an offer of proof, counsel for appellant stated what he expected to prove through the second officer's testimony had the court not sustained the State's relevancy objections. The anticipated testimony was Vela possessed the prescription medication bottles of others; that such possession was a crime for which Vela was not arrested; that Vela advertised on Backpage, an internet site where prostitutes commonly advertise; and that Vela had a history of methamphetamine possession.
Appellant testified in his own defense. Over the course of direct-and cross-examination he admitted nine prior convictions, chiefly misdemeanors, but among them were the two enhancement felonies. He also admitted using methamphetamine. Appellant testified he was with Vela early in the morning of his arrest, and the two smoked methamphetamine in a motel room. Vela, he continued, provided the methamphetamine. According to appellant, he and Vela left the motel together in a borrowed car. When police initiated the stop, he told Vela to give him the methamphetamine. Appellant testified having done so because Vela had children and was pregnant, and he did not want her to get into trouble. According to appellant, he accused the first officer of planting the methamphetamine because it was the first thing that came to his mind. On cross-examination, he admitted possessing the methamphetamine.
Analysis
In his only issue, appellant argues the trial court "prevented [him] from presenting his defense theory by excluding relevant evidence necessary to the defense." According to appellant, his defense was "that he got blamed for Amber Vela's dope." "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clause of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)).
In the trial court, appellant's complaint centered on the State's sustained relevancy objections to questions concerning Vela's alleged drug use and alleged prostitution. As noted, appellant made an offer of proof expressing the substance of the testimony he expected to have elicited from the second officer. On appeal, however, appellant complains that the trial court's relevancy rulings denied him the constitutional right of adequately presenting a defense. Appellant does not point us to, nor do we find, a location in the record where he brought that complaint to the trial court's attention and obtained an adverse ruling. See Gallamore v. State, No. 05-14-01591-CR, 2016 Tex. App. LEXIS 4123, at *24-25 (Tex. App.—Dallas Apr. 20, 2016, pet. refused) (mem. op., not designated for publication) (finding defendant did not preserve claimed denial of constitutional right to present a meaningful defense when he did not inform trial court how evidence excluded by its relevancy rulings was germane to a defensive theory and did not assert he was denied an opportunity to present a defensive theory). Therefore, appellant's issue was not preserved for our review. See TEX. R. APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) ("the point of error on appeal must comport with the objection made at trial"); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (finding constitutional issue of right to present a defense was not preserved); Mosley v. State, No. 10-15-00288-CR, 2017 Tex. App. LEXIS 602, at *13-14 (Tex. App.—Waco Jan. 25, 2017, n. pet. h.) (finding defendant's argument on appeal that the trial court denied him the constitutional right to present a defense did not comport with his argument in the trial court and, therefore, was not preserved for review).
Error in excluding evidence is preserved by an offer of proof containing the substance of evidence to be proffered. Williams v. State, 937 S.W.2d 479, 489 (Tex. Crim. App. 1996); TEX. R. EVID. 103(c).
But even had appellant preserved the error he now urges, and assuming solely for the sake of argument that the trial court abused its discretion by sustaining the State's relevancy objections, the evidence necessary for appellant's defense that the methamphetamine which fell from his pants actually belonged to Vela, came in without objection through his own testimony. Additionally, through the evidence the jury was aware that Vela used methamphetamine and had done so on the day of appellant's arrest. Harm is not shown when evidence is erroneously excluded, even under the stricter analysis required for constitutional error, "unless the evidence formed such a vital portion of the case that its exclusion effectively precluded the defendant from presenting a defense." Smith v. State, No. AP-75793, 2010 Tex. Crim. App. Unpub. LEXIS 582, at *79 (Tex. Crim. App. Sept. 29, 2010) (per curiam) (citing Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) and Valle v. State, 109 S.W.3d 500, 506 (Tex. Crim. App. 2003)). Notably, other evidence substantiating appellant's defense was before the jury, not merely in a form that required an inference of Vela's guilt but from the testimony of appellant expressly stating that the methamphetamine was Vela's. Even if appellant was unable to present his defense in the form he desired, the complained-of error could not have amounted to constitutional error because appellant was not prevented from presenting the substance of his defense to the jury. See Valle, 109 S.W.3d at 507. Appellant's issue is overruled.
Conclusion
Having overruled appellant's sole issue on appeal, we affirm the judgment of the trial court.
James T. Campbell
Justice Do not publish.