Opinion
PD-0511-24
11-13-2024
JOE BOB DAVIS, Appellant v. THE STATE OF TEXAS
DISSENT TO REFUSAL TO GRANT STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS GRAY COUNTY
Keller, P.J., filed a dissenting opinion.
Appellant was convicted of possession of methamphetamine, in an amount of four grams or more but less than two hundred grams, with the intent to deliver. At trial, the deputy who arrested Appellant testified that he initiated his investigation because he had "received information that [Appellant] and his brother were involved in trafficking narcotics." Appellant objected but did not request a limiting instruction. The court of appeals reversed Appellant's conviction. But in doing so, the court of appeals failed to analyze whether Appellant had preserved his claim for review. Because Appellant did not request a limiting instruction, I would grant review and reverse the judgment of the court of appeals.
I. BACKGROUND
a. Trial
Appellant was the passenger in a vehicle stopped by Deputy Skinner, a deputy with the Gray County Sheriff's Office, in August 2021. The driver consented to a search of the vehicle. No contraband was found inside the vehicle. While Appellant was standing outside the vehicle, a small bag fell from his shorts. The bag contained between "fourteen and nineteen grams of methamphetamine." Appellant was charged with possession with intent to deliver.
Before trial, Appellant filed a motion in limine seeking, in part, to exclude evidence of extraneous bad acts leading to Appellant's arrest. At the hearing on the motion, Deputy Skinner testified that he had information that Appellant was acquiring drugs in Amarillo and bringing them to Gray County to sell. Specifically, before the traffic stop, Skinner had received an alert from DPS that law enforcement might encounter Appellant returning from Amarillo. Skinner waited on the interstate for Appellant, witnessed traffic violations, and stopped the vehicle. The trial court disallowed any testimony regarding Skinner's knowledge that Appellant was trafficking drugs.
At trial, Appellant contested the "intent to deliver" element and whether the amount he possessed was a "user" amount or a delivery amount. Deputy Skinner testified that a "user" amount is typically three and a half grams or less but that the fourteen grams in the bag was a "significant amount." On cross, Skinner testified that weight alone would not necessarily indicate whether the amount possessed was intended for delivery but that other factors-including the presence of scales and baggies-could indicate intent to deliver.
Outside of the presence of the jury, the State argued that, by asking about factors that could indicate dealing, such as the baggies and scales, the defense had "opened the door" to the extraneous evidence that Skinner had information about Appellant dealing drugs. Appellant argued that Skinner did not have personal knowledge about anything that happened at a narcotics house in Amarillo and claimed that any such statement would be hearsay. Appellant also argued that the testimony would be more prejudicial than probative under Rule 403. The trial court allowed the testimony. On redirect, the following exchange occurred:
Q: If you could, tell this jury how you first became involved in this investigation.
A: I had received information that [Appellant] and his brother were involved in trafficking narcotics to McLean.
b. Appeal
The court of appeals reversed the conviction. The court began by assuming that the statement was relevant and admissible under Rule 404(b) and focused instead on the Rule 403 objection. The court of appeals emphasized the significance of the evidence in establishing intent to deliver because of the relative weakness of the State's case. The court also noted that the testimony came from a member of law enforcement, thus enhancing its credibility. But the court stated that the testimony was potentially baseless hearsay and may have been nothing more than rumor or speculation. The court of appeals stated that Rule 403 requires only "a danger of" unfair prejudice and that, in this case, such danger outweighed the probative value of the intended evidence. The court of appeals concluded that a conviction based on potential rumor presents a grave risk of undue prejudice and that the danger of an improper conviction in this case caused by the testimony outweighed its nominal probative effect.
Davis v. State, No. 07-23-00143-CR, 2024 WL 2789464, at *3 (Tex. App.-Amarillo May 30, 2024).
Id. at *1.
Id. at *2.
See id.
Id.
Id. at *3.
Id.
II. ANALYSIS
Texas Rule of Evidence 105 says that a party complaining about the admission of evidence that is admissible for one purpose but not another must seek a limiting instruction to preserve his claim: "[a] party may claim error in a ruling to admit evidence that is admissible against a party or for a purpose-but not against another party or for another purpose-only if the party requests the court to restrict the evidence to its proper scope and instruct the jury accordingly."
Under the unambiguous language of the rule, error cannot be predicated on the admission of evidence that is admissible for one purpose but not for another if the complaining party did not request a limiting instruction. In this case, if the record supports the admission of the testimony for one non-hearsay purpose but not for another purpose, then Appellant's claim must fail.
See Sandoval v. State, 665 S.W.3d 496, 531 (Tex. Crim. App. 2022) ("[W]hen admitted evidence was admissible for a non-hearsay purpose but no limiting instruction was given, the defendant "failed to preserve error as to the possible hearsay effects of the evidence" when he failed to request a limiting instruction.) (also quoting from and discussing Rule 105(b)(1)).
And the record does support admission of the testimony for one purpose but not another. The testimony was admissible as non-hearsay evidence to provide "background" information to explain the context behind Deputy Skinner's traffic stop, but it was not admissible as evidence to prove the truth of the matter asserted, namely, that Appellant was trafficking drugs. Under Rule 105, Appellant's failure to request a limiting instruction forfeited his claim about the admission of Skinner's testimony.
And it is worth noting that forfeiture under Rule 105 results in no injustice in this case. That is because any risk of unfair prejudice from Skinner's testimony could have been eliminated almost entirely by a well-tailored limiting instruction. A limiting instruction could have been crafted to require the jury consider the testimony solely for the context of Skinner's traffic stop and not as evidence of Appellant's intent to deliver. Even if the testimony is likely to be associated with criminality, a limiting instruction could have explicitly told the jury not to draw that sort of inference. With such an instruction, the risk of unfair prejudice would be minimal and would not substantially outweigh the probative value of the evidence.
III. CONCLUSION
Because I believe Appellant's claim was not preserved, I would grant the State's first ground for review and reverse the judgment of the court of appeals. Because the Court does not, I respectfully dissent.