Opinion
No. 05-10-00500-CR
Opinion Filed June 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F09-58310-N.
Before Justices MURPHY, FILLMORE, and MYERS.
MEMORANDUM OPINION
Lonnie James Sanders pleaded guilty before a jury to possession with intent to deliver more than four but less than two hundred grams of cocaine. The jury found him guilty and assessed punishment at seventy-five years' imprisonment and a $10,000 fine. Appellant contends the trial court abused its discretion by allowing the State to reopen evidence during the punishment phase of his trial. We affirm the trial court's judgment.
Background
Appellant initially pleaded not guilty and "true" to two enhancement paragraphs in the indictment charging him with possession with intent to deliver more than four but less than two hundred grams of cocaine. See Tex. Health Safety Code Ann. § 481.112(a) (West 2010). After a recess, however, the State abandoned the two enhancement paragraphs, and appellant pleaded guilty. The punishment evidence was submitted to the jury. The State presented testimony from the Dallas Police Department officers who arrested appellant, as well as expert testimony regarding drug dealing. The evidence also included the parties' stipulation that appellant was previously charged and convicted in four drug-related cases: possession of cocaine with the intent to deliver less than twenty-eight grams, possession of less than a gram of cocaine, possession of more than four grams but less than two hundred grams of cocaine, and possession of less than two ounces of marijuana. Officers Grimes and Nunez both testified they observed a car traveling at a high rate of speed exit an apartment complex without stopping at a sidewalk. The sidewalk crossed the private driveway for the apartments, an area where pedestrians could be present, and the failure to stop constituted a traffic violation. Three people were in the vehicle: appellant was driving, a female later identified as Amanda Reynolds was in the front passenger seat, and another man later identified as Earnest Miller was in the back seat. After effecting a traffic stop, Miller's movements suggested he was trying to hide something in the back seat; the officers asked him and the others to exit the car. Nunez observed a protruding crack-cocaine pipe in plain view under the armrest. He also noticed small pieces of what appeared to be white rock on the back seat, which were consumed in a field test that was positive for cocaine. The officers arrested Miller for possession of drug paraphernalia, handcuffed him, and placed him in the back of the police car. They allowed appellant and Reynolds to leave. About the same time, Miller began speaking loudly and became very animated. Miller told the officers appellant "had a bunch of crack in a black magnetic box in the trunk behind where the key goes." Appellant's car was still in sight at that time, and the officers observed appellant failing to stop at a stop sign. They effected another stop of appellant's car, and Grimes asked appellant if he could search the vehicle. Appellant agreed, and both he and Reynolds stepped out of the car. Nunez found a magnetic key box in the trunk near the locking mechanism. Several rocks of crack cocaine were in the box. While appellant was being placed in handcuffs, he yelled at Miller, "That's [expletive deleted] up, you would do this to me over a crack pipe. You couldn't even take the rap for a crack pipe." Concerned about an altercation between Miller and appellant if they were transported in the same vehicle, the officers issued a citation to Miller for the same offense previously charged, released him, and took appellant into custody. Cross-examination of the officers by appellant's counsel at trial suggested the cocaine found in the trunk was Miller's. The State also called an expert witness, who opined that appellant was a dealer, not a user, based on the way the cocaine was secreted, hidden, and broken apart. He testified the profit for the crack cocaine found in the magnetic key box likely would be a thousand dollars. Following the testimony of the expert and the officers, the State rested. Appellant indicated he wanted to testify, and the trial court recessed proceedings until the next day. The next morning, appellant informed the trial court he had changed his mind and would not testify. The trial court then summarized the proceedings and stated that when the jury returned, appellant would rest and "the State is going to reopen to call a witness." There was a pause in the proceedings as the witness, Miller, was brought to the courtroom. Once the jury returned, appellant rested without putting on any additional evidence, and the State made its request to reopen. Appellant objected, stating, "[w]e object for the record. We believe it's going to raise new issues and confuse the issues we already have and oppose that." Without further argument, the trial court noted the objection and permitted the State to reopen its case. Miller testified he had been smoking crack cocaine in appellant's car and was high when they were stopped by the officers. Before the officers reached the car, Miller saw appellant hand Reynolds drugs to hide. Miller said he began yelling to appellant when he was handcuffed and placed in the police car because he thought he was being arrested for the drugs appellant passed to Reynolds. He then told the police where appellant kept additional drugs in the magnetic key box in the trunk. Miller described the events following, including appellant's arrest. Miller also testified that he had a drug problem and had purchased crack cocaine from appellant several times. Appellant was known for having "good drugs" because he "cooked" them himself. Miller also identified Reynolds as appellant's prostitute and said appellant usually kept one or two young girls. Miller described his own criminal history tied to drug use and related thefts. He said he was leaving Dallas to protect himself because appellant "know[s] a lot of people." After the direct and cross-examination of Miller, the State rested. Appellant then recalled Grimes and Nunez and rested following their examination. After closing arguments, the case was submitted to the jury, which assessed the seventy-five-year sentence and $10,000 fine. This appeal followed.Standard of Review
We review a trial court's decision to reopen evidence under an abuse of discretion standard. Reeves v. State, 113 S.W.3d 791, 794 (Tex. App.-Dallas 2003, no pet.) (citing Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003)). Generally, a trial court abuses its discretion when it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh'g).Discussion
Appellant contends that despite his judicial confession and the State's having rested its case, the trial court allowed the State to reopen the evidence and introduce highly prejudicial and harmful evidence, "as evident in the jury's sentence." The State responds that code of criminal procedure article 37.07 controls the admission of evidence at the punishment phase of the trial, and Miller's testimony was material and relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010). Both appellant and the State address the trial court's decision in the context of code of criminal procedure article 36.02, which requires a trial court to "allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." See Tex. Code Crim. Proc. Ann. art. 36.02 (West 2007). Evidence is necessary to the due administration of justice if the evidence "would materially change the case in the proponent's favor." Peek, 106 S.W.3d at 79. In such circumstances, the trial court abuses its discretion if it does not reopen the case to allow the evidence. Id.; see also Reeves, 113 S.W.3d at 794. Stated differently, the trial court has no discretion if the proffered evidence would materially change the case. We do not reach the question of whether the trial court was required to grant the State's motion under article 36.02, because we conclude, considering the record before us, that Miller's testimony was relevant to sentencing and the trial court did not abuse its discretion. Appellant's statement at the time the State asked to reopen the evidence was "[w]e object for the record. We believe it's going to raise new issues and confuse the issues we already have. . . ." Appellant argued no other basis for his objection, such as lack of notice, surprise, or unfair prejudice. Appellant, in fact, cross-examined Miller and recalled the officers to testify in an attempt to refute Miller's testimony regarding the circumstances of appellant's offense and arrest. Assuming without deciding that appellant preserved his issue for review on appeal, Miller's testimony satisfied the evidentiary standard for relevance on the issue of punishment. Article 37.07 of the code of criminal procedure describes evidence allowed during punishment, as follows:Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Tex. Code of Crim. Proc. Ann. art. 37.07, § 3(a)(1). Appellant's complaint on appeal is that Miller testified to collateral and prejudicial issues, such as how appellant fed Miller's drug addiction, kept "young girls" as prostitutes, and tried to hide drugs on Reynolds. The testimony fits squarely into allowable evidence under article 37.07. Miller's testimony rebutted suggestions raised through cross-examination of the officers that the drugs belonged to Miller and suggestions raised through cross-examination of the expert that appellant was not a dealer. In addition to addressing "circumstances of the offense for which [appellant was] being tried," as allowed under article 37.07, Miller's testimony was relevant to appellant's reputation, character, and "extraneous crime[s] or bad act[s] . . . for which [appellant] could be held criminally responsible." Although Miller's testimony may have affected appellant's sentence, the testimony was relevant and admissible.