Opinion
No. 05-10-00829-CR
04-18-2012
VICTOR HUGO MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as MODIFIED and Opinion Filed April 18, 2012
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F08-54099-K
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
The jury convicted Victor Hugo Martinez of possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. The trial court assessed punishment of eighteen years' imprisonment. In a single issue, Martinez contends the trial court erred in admitting drug ledger evidence because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The State requests we modify the trial court's judgment to reflect the correct statute under which Martinez was convicted. As modified, we affirm the trial court's judgment. Background
Based upon the record, the trial court determined that trial counsel failed to timely file a notice of appeal. Ex parte Martinez, No. AP- 76356, 2010 WL 2106643, at *1 (Tex. Crim. App., May 26, 2010) (per curiam) (not designated for publication). The court of criminal appeals found, therefore, that Martinez was entitled to file an out-of-time appeal. Id.
Martinez has not challenged the sufficiency of the evidence to support the conviction. Accordingly, we recite only those facts necessary to address Martinez's issue on appeal.
On April 12, 2008, Dallas Police Officers Daniel Foster and Chris Wagner, accompanied by two other police officers, responded to a citizen complaint of drug sales at an apartment. When Officer Foster knocked on the front door of the apartment, the door opened. Three men were in the apartment: Martinez, Michael Monroe, and Martinez's younger brother, Martin Martinez (Martin). Martinez and Monroe were sitting in chairs around a coffee table near the front door. Martin was on a couch adjacent to the coffee table.
When they saw the policemen, Martinez quickly put his hand under the chair in which he was sitting, and Monroe put his hand down in the chair in which he was sitting. The officers saw a drug scale and what appeared to be methamphetamine on the table directly in front of and closest to Martinez. The officers stepped inside the apartment door. Officer Foster testified Martinez was quiet and acted fairly nervous. Officer Wagner testified that when the officers entered the apartment, Martinez acted in an aggressive manner and was less cooperative than Monroe and Martin. It was Officer Wagner's sense that Martinez was the individual in control of the situation in the apartment.
Martin informed the policemen that he rented the apartment and gave them permission to search the apartment. The police recovered methamphetamine and a drug scale that were sitting on the coffee table, methamphetamine and cocaine under the cushion of the chair Monroe was sitting in, a glass pipe for smoking methamphetamine under Martinez's leg, and another drug scale and a drug ledger on a bookcase.
Testing confirmed that the substance found on the coffee table contained methamphetamine and weighed 20.8 grams and a substance found under the cushion of the chair where Monroe was seated contained methamphetamine and weighed 43 grams. Sergeant Barry Ragsdale, employed in the narcotics division of the Dallas Police Department, testified that an individual using methamphetamine typically uses between .1 gram to .25 gram at a time.
The trial court conducted a hearing outside the presence of the jury to consider admissibility of the drug ledger. Martinez objected to the drug ledger being admitted in evidence, asserting any probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The trial court overruled Martinez's objection, and the drug ledger was admitted in evidence at trial.
Before the jury, Officer Wagner testified that the drug ledger appeared to contain records of drugs purchased by Martin and sold from Martin's apartment to known drug users in the same apartment complex and the surrounding area. At the top of the ledger was the name "Victor," the first name of Martinez. The entries referencing "Victor" showed sums of money owed to Victor. The ledger entries indicated to Officer Wagner that Victor had supplied or sold methamphetamine to Martin, and Martin, in turn, sold methamphetamine to residents of the apartment complex and the surrounding area. Sergeant Ragsdale testified that the drug ledger contained a record of "monetary amounts and drug amounts that individuals are paying for and purchasing." He also testified it is common to find both ledgers of drug sales and scales in a drug house, which are indicative of a drug distribution enterprise.
According to an affidavit executed by Martin and Martin's testimony at trial, the drugs found in his apartment were his. He purchased the methamphetamine found by the police from someone in East Dallas. Martin testified Martinez did not provide him with any drugs. He also testified Monroe does not deal drugs and was not Martin's drug supplier.
Although he testified he did not sell drugs to people in the apartment complex, Martin testified the handwriting in the drug ledger is his and the drug ledger contains names of individuals and what those individuals owed for drugs. Martin acknowledged that the entries in the drug ledger referencing "Victor" are not included in the same area of the ledger as the names of individuals who owed for drugs. The references to Victor indicate amounts owed to Victor. However, according to Martin, the "Victor" referenced in the drug ledger does not refer to Martinez, but refers to a man who lived in an upstairs apartment at the apartment complex. Martin testified his family calls Martinez by his middle name, "Hugo," and never calls Martinez by his first name,"Victor."
Officer Wagner testified that once Martinez, Monroe, and Martin were taken into custody, they were separated. While in Officer Wagner's squad car, Martin was read his Miranda rights, and he agreed to waive those rights. Martin told Officer Wagner that Martinez's first name was Victor. Contrary to Martin's affidavit and testimony, Martin told Officer Wagner that Martinez and Monroe had come to his apartment that day to sell Martin methamphetamine.
See Miranda v. Arizona, 384 U.S. 436 (1966).
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Analysis
In his sole issue, Martinez contends the trial court erred by admitting into evidence the drug ledger during the guilt/innocence phase of the trial. Martinez argues that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the State's evidence did not expressly link Martinez to the drug ledger or show that the "Victor" referenced in the ledger was Martinez. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We must uphold the trial court's ruling so long as it is within the zone of reasonable disagreement. Id. Relevant evidence is "evidence having 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. Pursuant to rule 401, evidence is "relevant" if it influences facts that have something to do with the ultimate determination of guilt or innocence in a particular case. Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991). Rule 403 allows for the exclusion of otherwise relevant evidence when 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. Because rule 403 favors admissibility of relevant evidence, it is generally presumed that relevant evidence will be more probative than prejudicial. De La Paz v. State, 279 S.W.3d 336, 343 & n.17 (Tex. Crim. App. 2009).
"All testimony will be prejudicial to one party or the other." Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). It is only when a clear disparity exists between the degree of prejudice of the proffered evidence and its probative value that rule 403 is applicable. Id. Unfair prejudice does not mean the evidence injures the opponent's case, which is the point of offering evidence. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999) (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)). Rather, it refers to "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Id. It is the opponent's burden to demonstrate the prejudicial attributes of the evidence and to show how these attributes substantially outweigh the probative value of the evidence. Sosa v. State, 230 S.W.3d 192, 195 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). In undertaking a rule 403 analysis, the trial court balances:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
In this case, the drug ledger and the testimony regarding the ledger were inherently probative of whether there was a drug enterprise and whether Martinez possessed, with intent to deliver, methamphetamine. The disputed evidence was relevant to the question of whether Martinez was the supplier of drugs to Martin. There is nothing in the record to suggest the disputed evidence influenced the jury to decide the case on an improper basis. Indeed, there was other substantial evidence of Martinez's guilt, including methamphetamine and a drug scale on the table closest to Martinez and testimony of Officer Wagner that Martinez behaved in an aggressive manner and was less cooperative than Monroe and Martin, that Martinez seemed to be in control of the situation in the apartment, and that Martin informed Officer Wagner that Martinez and Monroe had come to Martin's apartment to sell him drugs. Nothing in the record indicates the disputed evidence confused or distracted the jury from the main issues, the jury gave undue weight to the disputed evidence, or the jury had not been equipped to evaluate the probative force of the evidence. Martinez does not argue, and the record does not show, that presentation of the disputed evidence consumed an inordinate amount of time or merely repeated evidence already admitted. Accordingly, we are unable to conclude the probative value of evidence regarding the drug ledger was substantially outweighed by the danger of unfair prejudice. See id. at 641-42.
We conclude the trial court did not abuse its discretion by admitting the drug ledger evidence. We resolve Martinez's sole issue against him.
Modification of the Judgment
The State contends the judgment should be modified to reflect the correct statute under which Martinez was convicted. Martinez was convicted of possession with intent to deliver methamphetamine under section 481.112 of the Health and Safety Code. The trial court's judgment erroneously reflects Martinez was convicted under section 481.115 of the Health and Safety Code. We may modify a trial court's written judgment to correct a clerical error when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 530 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to reflect Martinez was convicted under section 481.112 of the Health and Safety Code.
As modified, we affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100829F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
VICTOR HUGO MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00829-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F08- 54099-K).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the statement "Statute for Offense: 481.115 Health and Safety Code" on page 1 of the judgment is MODIFIED to state "Statute for Offense: 481.112 Health and Safety Code."
As modified, the judgment is AFFIRMED.
Judgment entered April 18, 2012.
ROBERT M. FILLMORE
JUSTICE