Opinion
No. 05-03-01502-CR.
Opinion issued March 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F00-56041-QH. Affirmed.
OPINION
After appellant Ruben Garcia was convicted by a jury of the felony possession of cocaine in an amount of four grams or more but less than 200 grams, the trial court heard evidence on punishment. After hearing testimony from appellant's wife, the trial court assessed appellant's punishment at six years confinement, probated for six years, and a $2500 fine. On appeal, we are presented with only one evidentiary issue: whether the trial court reversibly erred in admitting rebuttal evidence of the street value of the cocaine. Concluding no reversible error is shown, we affirm. On November 21, 2000, two veteran uniformed Dallas police officers assigned to the interactive community policing division observed appellant speeding. At about 1:45 p.m. on a bright, clear day, appellant, alone in a fairly new truck, passed the officers' squad car. They estimated he was traveling seventy miles-per-hour in a thirty miles-per-hour residential zone. The officers immediately began following appellant. They observed him make several illegal turns and run two stop signs. Even after the officers engaged their lights and siren, appellant slowed, but did not stop. Appellant eventually pulled over to the left side of the street but continued to drive very slowly. One of the officers got out of the squad car and "jogged" up to the passenger side of appellant's car. As he approached, he saw appellant open, and then close, the console. Although the officer could not see what appellant put in the console, he feared it might be a weapon. As his partner approached the driver's side of appellant's car, to distract appellant, the first officer knocked on the passenger window and began talking to appellant, asking him for his driver's license and insurance. After appellant got out of the car, upon request of the second officer, the first officer opened the console where he found a bag of powdery substance on top of some papers. The substance was later identified as cocaine. An inventory search was conducted before appellant's truck was impounded. The cocaine was seized, its chain of custody preserved, and a subsequent chemical analysis revealed the powder weighed 7.6 grams, including adulterants and dilutants. The cocaine was admitted into evidence at trial. Appellant testified at trial. He stated he was 44 years old, had been married for twenty-three years, and had three children. Appellant was in the United States legally, but he was not a U.S. citizen. He worked as a subcontractor in the concrete business and had some sixty people working for him. At the time of his arrest, appellant had owned the truck he was driving for about two months and used it for both personal and business purposes. Although he did not let "just anybody" drive his truck, sometimes a worker had occasion to drive it in connection with appellant's business. At the time of his arrest in west Dallas appellant was coming from his home in Oak Cliff, having previously been to an Oak Cliff dentist, and was on his way to pick up some equipment in south Dallas. Appellant had seen the police before they pulled him over and he stopped as soon as they turned on their lights. He did not remember speeding or going through stop signs, and he pulled over on the right side of the road, not the left. He had been talking on the telephone just before he saw the officers approach his truck. The officers told him they stopped him because they thought the truck was stolen. Appellant gave the officer his driver's license and insurance papers. The officers took him to the back of the truck where he stayed for ten to twenty minutes, but he was not handcuffed nor was he arrested. The officers searched him and then searched the inside of the truck. This took about forty-five minutes. The officers took him to jail after they found the drugs. Appellant did not put the cocaine in his truck, did not know it was there, and had no intent to possess it. Nobody had used his truck the day of his arrest but two people had used it the day before. He paid $30,000 for his truck. He sometimes paid his workers as much as $100 per day and paid in checks. No officer knocked on his window before he was asked to get out of the car. Appellant never opened and closed the console. In short, the defensive theory presented by appellant's testimony was that one of appellant's workers must have left the cocaine in appellant's truck without his knowledge. After the defense rested its case, for the purpose of rebutting the defensive theory, the State called a rebuttal witness to prove the street value of the cocaine. Outside the presence of the jury, appellant's counsel objected on the grounds that such evidence was irrelevant, immaterial, more prejudicial than probative, and speculative about the state of mind of another person. The trial court did not allow the State to ask the police officer to draw any inferences or deductions from the evidence and did not allow evidence about the usage or dosage of the amount of cocaine found. Limiting the scope of the evidence, the trial court allowed the State to question the rebuttal witness only about the street value of the cocaine. Officer Anthony Gipson, a veteran Dallas narcotics officer, testified the street value of the cocaine was approximately $760. It is the admission of that evidence appellant claims requires reversal of his conviction. Appellant argues on appeal the evidence was inadmissible under rule 403 because its slight probative value was substantially outweighed by its prejudice of impressing the jury in some irrational but indelible way. Appellant argues the evidence was not relevant to the possession case and had the effect of accusing the appellant of a collateral crime rather than resolving any issue in the charged offense. The State contends the street value evidence was admissible to rebut appellant's defensive theory and was relevant to prove appellant's knowing possession of the cocaine. Evidence is relevant if it has any "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. A trial judge's broad discretion in the admission of evidence, however, is limited. Even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. On appeal, a trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). Specifically, upon review of a trial court's rule 403 balancing test, an appellate court should reverse the trial court's judgment "rarely and only after a clear abuse of discretion." Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim. App. 1999) (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1991) (op. on reh'g)). The trial court limited the expert opinion evidence to the value of the cocaine. Although the State was permitted to argue reasonable inferences or deductions from the evidence, the jury was ultimately left to decide what, if any, inferences or deductions to draw. Specifically, the trial court said:
Your objection is overruled with one caveat that is you can't draw speculation from your witness. If you want to put him on for street value, the jury wishes to draw that — that conclusion, that's fine. But you can't ask the officer to speculate as to whether or not this amount of drugs were so valuable that it would be improbable that someone would have left it. That's a speculation you can't make.The highest approximation of the street value of the cocaine was $760. The trial court could have reasonably concluded that was an amount large enough to rebut appellant's defense that the cocaine was accidentally left in appellant's truck without appellant's knowledge, yet not large enough to have the effect of accusing appellant of a collateral crime of distributing cocaine. Moreover, even assuming arguendo there was error, any error would be harmless. Examination of the entirety of the evidence reveals that the admission of the street value evidence would not have met the "substantial and injurious effect or influence in determining the jury's verdict" standard required by rule 44.2(b). See 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The amount involved would likely not have had any effect on the jury's verdict. Any prejudicial effect was reduced by the trial court's exclusion of any speculation evidence and limitation of the State's evidence to value alone. Because we conclude the trial court's ruling does not fall outside the zone of reasonable disagreement, we further conclude the trial court did not abuse its discretion in admitting the street value evidence. No error is shown. In the alternative, even if there is error, any error is harmless. We, therefore, resolve appellant's issue against him. We affirm the trial court's judgment.