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Gardner v. State

Court of Appeals of Texas, Tenth District, Waco
Mar 23, 2005
No. 10-04-00105-CR (Tex. App. Mar. 23, 2005)

Opinion

No. 10-04-00105-CR

Opinion delivered and filed March 23, 2005. DO NOT PUBLISH.

Appeal From the 87th District Court, Freestone County, Texas, Trial Court # 04-015-CR. Affirmed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


MEMORANDUM Opinion


Milton Gardner was charged by indictment with the offense of Possession of Controlled Substance in Penalty Group 1, cocaine, less than one gram. A jury found Gardner guilty, and the court assessed punishment at eight years' imprisonment. Gardner appeals in a single issue, claiming error in allowing the testimony of Officer Willis that Gardner could have been destroying evidence prior to his arrest. We will affirm the judgment.

BACKGROUND

Gardner was stopped by Deputy Turner for a defective taillight. Deputy Turner testified that when he turned on his lights, Gardner pulled onto the shoulder and kept driving at 60 m.p.h. Gardner kept driving on the shoulder for about one mile before he pulled onto the grass and then quickly stopped. Deputy Turner approached the vehicle and noticed that the passenger window was partially down. He also noticed a green leafy substance spilled on Gardner, and Gardner was wiping his mouth. Deputy Turner testified:
Q. Why was there an urgency, in your mind, to get him out of the vehicle?
A. I felt like he was destroying evidence.
Q. And that's because of seeing —
A. — seeing him wiping his mouth, yeah.
Q. Is that something that has happened fairly frequently, in your drug interdiction experience, that people will try to destroy evidence when they're being stopped?
A. Quite a bit, yes.
Q. And is one of the methods of doing that by eating the evidence?
A. Eating it —
MR. BURKEEN [for Gardner]: Objection, leading.
THE COURT: Sustained.
Q. (BY MR. McDONALD) Okay, tell the jury what all you know, what all a suspect has done, in your experience, in an effort to destroy evidence when they're being pulled over.
A. Had a lot of things happen. I've had them shove them up private parts. Had them throw them out the windows. Had them eat it. Shove it down their socks and shoes and underwear. People put it anywhere.
Q. Okay, so, is that what was in your mind when you saw what you saw when you came —
A. I felt like he was trying to destroy the evidence.
After Deputy Turner removed Gardner from the vehicle, he returned to the vehicle and saw what he believed to be crack cocaine in the front seat and front floorboard. He also found a baggie with the corner ripped off, and he testified that he believed this was a container for the crack cocaine. Deputy Willis was called to the scene because he had the narcotic test kit. Deputy Willis testified:
Q. And would it be difficult or easy to destroy crack cocaine or to throw it out a window if you were being pulled over?
A. It's very easy to get rid of.
Q. And, in your experience with drug interdiction, either with the task force that you work with or just working here in Freestone County, is it common or uncommon for a suspect, whose being pulled over, to attempt to destroy evidence?
MR. BURKEEN [for Gardner]: Object, Your Honor, there is no evidence Mr. Gardner was destroying evidence. It's speculation and misleading to the jury.
THE COURT: Overruled.
A. It's very common for people trafficking narcotics to try to get rid of the evidence before you approach the vehicle.
Q. (BY MR. McDONALD) Okay.
On redirect examination, Deputy Willis testified:
Q. (BY MR. McDONALD) Have you reviewed this video tape?
A. Yes, sir.
Q. And given that Mr. Gardner took what appeared to Officer Turner a long time to stop, and given the fact his window was halfway down, and given the fact that he pulled all the way off into the grass, could there have been substantially more of this drug out on the ground that there would be no way to find?
A. Yes.
MR. BURKEEN [for Gardner]: Again, Your Honor, it's speculation. There is no evidence to support this.
THE COURT: Overruled.
Gardner testified on his own behalf. He denied knowing anything about the marihuana and cocaine, and he admitted to two prior convictions for possession of crack cocaine less than one gram.

ADMISSION OF TESTIMONY

We review a court's ruling on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will not reverse such a ruling so long as it falls "within the `zone of reasonable disagreement.'" Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g)). Gardner argues that the testimony of Deputy Willis allowed the jury to hear testimony designed to create the impression that he had more drugs on him than were found, and that he must have destroyed evidence that was never located. Gardner argues that the testimony: (1) was improper opinion testimony under Rules of Evidence 701 and 702; (2) led to an implication that he was guilty of other extraneous offenses in violation of Rule of Evidence 404(b); (3) was improper impeachment under Rules of Evidence 608 and 609; and (4) was not relevant under Rule of Evidence 401. The State argues that the admission of Deputy Willis's testimony was proper. The State further argues that any error arising from the admission of this opinion testimony is "harmless" or "waived" because similar testimony was admitted without objection. The State also asserts that Gardner's objections at trial fail to comport with his appellate issue. We agree with the State, in part, that Gardner's objections do not comport with his appellate issue with respect to extraneous offense, impeachment, and relevancy. See Comacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App. 1993) ("hearsay" and "irrelevant" objections at trial did not comport with extraneous offense violation under 404(b) on appeal); Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App. 1990) ("An objection stating one legal theory may not be used to support a different legal theory on appeal."). However, we believe Gardner's objections of "no evidence to support," "speculation," and "misleading" preserved his opinion-testimony issue on appeal. The opinion testimony of Deputy Turner that Gardner was destroying evidence was not objected to, which forfeits any complaint relative to Deputy Turner's testimony. TEX. R. EVID. 103; TEX. R. APP. P. 33.1. As for Deputy Willis's opinion testimony, evidence of Gardner's possible destruction of evidence came in through the testimony of Deputy Turner. "It is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered." Hernandez v. State, 914 S.W.2d 226, 233 (Tex.App.-Waco 1996, no pet.) (citing Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984)). In Horton v. State, Chief Justice Davis wrote for a unanimous court:
The State argues that any error arising from the admission of the evidence in question is "harmless or waived" because evidence of a similar nature was admitted without objection. The State's use of the term "waiver" in this instance has been rejected recently by the Court of Criminal Appeals as inaccurate. See Leday v. State, 983 S.W.2d 713, 718 nns.6-8 (Tex.Crim.App. 1998). Under Leday, a trial court's action in improperly "overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling." Id. at 716-18. In this situation, the court's improper action is "rendered harmless" by the admission of similar evidence without objection. Id. at 718-19 nn. 6-8.
Horton v. State, 986 S.W.2d 297, 302 (Tex.App.-Waco 1999, no pet.). We overrule Gardner's issue.

CONCLUSION

Having overruled Gardner's issue, we affirm the judgment.


Summaries of

Gardner v. State

Court of Appeals of Texas, Tenth District, Waco
Mar 23, 2005
No. 10-04-00105-CR (Tex. App. Mar. 23, 2005)
Case details for

Gardner v. State

Case Details

Full title:MILTON GARDNER, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 23, 2005

Citations

No. 10-04-00105-CR (Tex. App. Mar. 23, 2005)