No. 01-04-00197-CR
Opinion Issued March 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 960426.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
SAM NUCHIA, Justice.
Appellant, Alonzo Alvin Seay, was charged by indictment with possession with intent to deliver cocaine in the amount of more than four grams and less than 200 grams, with two enhancements. The jury found appellant guilty as charged, found the two enhancements to be true, and assessed punishment at imprisonment for life. On appeal, appellant complains that the trial court erred by excluding from evidence a spent bullet that was recovered from the trunk of appellant's car. We affirm.
BACKGROUND
Houston Police Officer B.J. Banks testified that, at about 11:20 p.m. on September 2, 2003, he responded to a dispatcher's call regarding a disturbance nearby, saying that shots had been fired. When he arrived at the location, he found a small group of people who were upset and afraid. One of them said that the suspect had just driven away in a gold Pontiac. Banks had just passed a car meeting that description. He turned around to follow the car, and, as he got close to it, he turned on his lights and siren. The Pontiac then accelerated from approximately 40 miles per hour to 70 or 80 miles per hour. Banks continued to follow the Pontiac with his lights and siren on. The Pontiac continued down the street at a high speed, went through an intersection against a red light, and entered the Eastex Freeway, where its speed increased to 80 or 90 miles per hour, weaving in and out of traffic. After approximately two miles, the Pontiac exited the freeway at Jensen Drive, hit the median strip, and blew out both front tires. The resulting cloud of dust obscured Banks's vision, and he also hit the median and blew out his front tires. Appellant got out of the Pontiac and ran under the freeway to a convenience store on the other side. Banks followed him, caught up with him inside the store, and handcuffed him. After more officers arrived, Banks searched appellant and found two baggies that contained crack cocaine and $2,622 in 20- and 100-dollar bills. Banks also searched the Pontiac and found an electronic scale with a white powdery substance on it and a box of .25 caliber automatic ammunition. Banks noted that there were two bullet holes in the passenger side of the Pontiac — one on the rear door and one on the front fender near the windshield. At trial, after the State rested and out of the presence of the jury, appellant offered a spent bullet as evidence. The trial court stated, "I'm not going to let that bullet in at this time." Then, appellant made an offer of the testimony of Alex Azzo, appellant's former attorney, who stated that, two days after the incident, he recovered the spent bullet from inside the trunk of the Pontiac. Azzo admitted that he had no forensic expertise and no expertise on bullets. He stated that, although he was not an expert, he believed that the spent bullet was the same bullet that caused the bullet hole in the car's trunk. He admitted that he had no personal knowledge regarding who fired the bullet, when it was fired, or where it came from. He said he thought that "these bullet holes were caused by the individuals that were chasing my client." The trial court asked, "Does anyone have any way of showing when those bullet holes were placed in that vehicle?" Appellant's counsel responded, "My client will." The State objected to the admission of the bullet on the ground of relevance. The State also objected to the admission of the testimony of Azzo regarding who might have fired the bullet unless the defense produced some evidence to support its theory. The record does not reflect any further request to admit either the bullet or the testimony of Azzo into evidence. Appellant testified to the following on his own behalf. He was driving away from his boss's house when a truck drove toward his car. He had to stop to avoid a head-on collision. He did not know the three occupants of the truck. Another car came up behind him, and three men whom appellant knew got out of that car. Appellant knew he was being set up because he had had trouble with one of the men about one month before this incident. One of the men hit appellant in the jaw, and appellant lost consciousness. When he regained consciousness, the men were standing around him, displaying weapons and telling him never to come to that neighborhood again. Appellant drove away as the men chased him and shot at his car. When he stopped at a red light, he looked in his rearview mirror and saw bright lights and sped off. He did not know the lights were red and blue. He thought he was being pursued, but did not realize it was by the police. He heard some noise, but did not realize it was a police-car siren. He saw the convenience store and decided to go there because he knew there would be people there. He did not know that he had cocaine in his pockets and did not know where it came from. The money in his pockets belonged to his mother. Vanessa Harrison, an acquaintance of appellant, testified that she saw appellant's car with the other vehicles near it. She saw three men jump appellant and hit him. She saw appellant fall back, and it looked like the other men were putting something in his pocket, taking it out, and putting it back in. She heard them tell appellant to get out of the neighborhood and saw appellant speed off. She also heard gunshots around the corner. Harrison admitted that she could not be 100% sure of what the men were doing to appellant. At the time of her testimony, Harrison was serving a sentence in state jail for felony theft. DISCUSSION
In his sole point of error, appellant contends that the trial court erred by excluding the spent bullet from evidence. Appellant argues that the bullet supported his defensive theory that he was set up by the group of men that assaulted him on September 2, 2003 and that the men placed the cocaine in appellant's pockets while he was unconscious. We review the trial court's decision to admit or exclude evidence for abuse of discretion. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). The trial court abuses its discretion if it acts without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). 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. In this case, at the time the bullet was offered into evidence, Azzo admitted that he had no way of knowing when the bullet holes were placed in the car, who fired the bullet, when it was fired, or where it came from. Azzo's belief that "these bullet holes were caused by the individuals that were chasing my client" was nothing more than speculation. Appellant made no further attempt to connect the bullet to the incident in question and offer the bullet into evidence. Therefore, the trial court did not abuse its discretion by excluding the spent bullet from evidence. See Garza v. State, 18 S.W.3d 813, 822 (Tex.App.-Fort Worth 2000, pet. ref'd) (concluding that trial court did not abuse its discretion by excluding testimony based on speculation). We overrule appellant's sole point of error and affirm the judgment.