Opinion
NO. 14-15-01020-CR
02-27-2018
JEROME TERRY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Cause No. 1468004
MEMORANDUM OPINION
A jury convicted appellant Jerome Terry of possession of less than one gram of cocaine, enhanced by two prior convictions for possession of a controlled substance. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D) (Vernon Supp. 2017), 481.115(a), (b) (Vernon 2017); Tex. Penal Code Ann. §§ 12.35(a), 12.425(b) (Vernon Supp. 2017). The jury sentenced appellant to 20 years' confinement.
Appellant asserts that the trial court erred by (1) denying his motion to suppress; and (2) permitting a police officer to testify regarding injuries he sustained while pursuing appellant. We affirm.
BACKGROUND
I. Arrest
Three Houston Police Department officers detained and arrested appellant on May 12, 2015, for possession of cocaine.
The officers were working as part of a surveillance operation investigating complaints about narcotics dealings in part of Houston's Third Ward. Officer Delasbour, dressed in plain clothes and working undercover, surveilled with binoculars a stretch of Holman Street from approximately two blocks away. Delasbour testified that he saw appellant engage in three hand-to-hand transactions with three different individuals. Delasbour described the transactions in which appellant retrieved an object from the waistband area of his shorts; exchanged the object or part of the object for money; and placed the object back in the waistband area of his shorts. Delasbour testified that the transactions occurred quickly and lasted "maybe a second or two." Based on his experience, Delasbour concluded that appellant was exchanging narcotics for money.
After watching appellant's third hand-to-hand transaction, Delasbour called in additional officers to detain appellant and "explained to the [officers] what was going on." Sergeant Haney and Officer Fregia responded and Delasbour directed them to appellant. Delasbour confirmed appellant's identity as the person he saw conducting three hand-to-hand transactions minutes earlier.
Haney and Fregia approached appellant and Fregia handcuffed appellant behind his back. Haney testified that he informed appellant the officers had probable cause to believe appellant was selling narcotics and holding them in the waistband of his shorts. Appellant told the officers he did not have and was not selling any narcotics. Haney testified that he told appellant he was going to search the waistband area of appellant's shorts and, if narcotics were hidden in appellant's rectum or anus, appellant "would be transported to the station and held until [the officers] got a search warrant for the retrieval."
The officers moved appellant toward the push bar on the front of the officers' patrol car and Haney proceeded to search appellant. Haney testified that he "stuck [his] fingers into the waistband area" of appellant's shorts "where the small of the back would be." Haney testified that appellant "immediately began twisting, trying to pull around" and "trying to get out of my grasp." Haney "use[d] [his] body weight to pen [appellant] against the push bar" and appellant "tilt[ed] over maybe 45-degrees or so with [Haney's] arm in the small of [appellant's] back."
Haney testified that, as he was applying pressure to appellant, appellant's "shirt was pushed up a little bit, and his shorts were down, and [Haney] could see the top of the waistband of [appellant's] boxer shorts, and about an inch or so of [appellant's] butt crack was showing." Haney testified that he "saw a brown, tannish plastic about a half inch or so sticking up from the top of the folds of the top of [appellant's] buttocks." Haney testified that he "immediately recognized that as possible contraband" and "took [his] fingers and grabbed that half inch or so and just pulled it right out." Haney described the object he retrieved as "a piece of tan plastic" that contained "several rocks." The Houston Forensic Science Center determined that the piece of plastic held .53 grams of cocaine.
Fregia grabbed appellant by the handcuffs and assumed custody of appellant while Haney placed the evidence in the patrol car. Haney testified that he heard Fregia yell, looked up, and saw appellant running from the officers. Haney and Fregia pursued appellant and Haney discharged his taser; the taser's darts made contact with appellant on the side of his head and forearm. Appellant fell and landed face-first on the street.
Shortly after discharging his taser, Haney stepped in a pothole covered with water. Haney fell, rupturing his right hamstring and breaking his left wrist. Haney testified that he remained on the ground until ambulance personnel arrived to assist him.
Appellant was apprehended by Fregia and transported to jail. Delasbour testified that he remained in the area after Haney and Fregia left and attempted to get statements from witnesses who saw the officers detain and arrest appellant. Delasbour stated that he was unable to get a statement from anyone who witnessed appellant's arrest.
Appellant was indicted for (1) possession of less than one gram of cocaine, enhanced by two prior convictions for possession of a controlled substance; and (2) evading arrest or detention. Appellant proceeded to trial on the possession of cocaine charge.
II. Motion to Suppress
Appellant filed a motion to suppress alleging that the drugs recovered during Haney's search "were pulled out of [appellant's] anal cavity without a warrant and against the customary procedures of the Houston Police Department."
Appellant presented testimony from four witnesses at the suppression hearing. The witnesses testified that, when the officers detained appellant, they exposed appellant's buttocks and searched his anal cavity.
Appellant's friend Fredrick Kennebrew was across the street when appellant was arrested. Kennebrew testified that the officers "wrestled [appellant] to the ground," "pull[ed] [appellant's] shorts area down" exposing his buttocks, and "reach[ed] inside of [appellant's] pants to go in his anus." Kennebrew recalled that people on the street were yelling at the officers to "express[] that they were upset" about the search of appellant. The State cross-examined Kennebrew about his multiple felony convictions.
Katina Thomas testified that she saw the officers "go in [appellant's] rectum" twice, with one search occurring after appellant was tased. Katina did not recall hearing people on the street yelling as officers searched appellant.
Jay Thomas saw officers arrest appellant and described it as a "wrestling match" that ended with appellant on the ground. Jay recalled that appellant's pants were "below his knees," his "underwear was past his cheeks," and that an officer matching Haney's description was "digging in the [appellant's] backside" with "two or three fingers in the [appellant's] rectum." The State cross-examined Jay about his prior burglary conviction.
Jay Thomas stated that he is not related to Katina Thomas.
Roderick Richards, a college student, saw officers search appellant. Richards testified that appellant was standing against the officers' patrol car when an officer matching Haney's description put on latex gloves and performed a "cavity search" on appellant. Richards recalled seeing appellant tased by the officers and testified that, once appellant was on the ground, an officer matching Haney's description proceeded to search appellant's "rectum" while appellant's pants were down.
The trial court denied appellant's motion to suppress. The trial court's findings of fact, in relevant part, stated as follows.
• The court finds credible Sergeant Haney's testimony that he did not
search inside the [appellant's] anus and did not touch the [appellant's] anus and that the [appellant's] clothing was not removed during the search.The trial court concluded that "there was sufficient probable cause for officers to detain and search the [appellant] for possession of narcotics" and that the officers' search of appellant "did not rise to the level of a 'body cavity search.'" The trial court concluded that the officers' "search of the [appellant] was reasonable."
• The court finds credible Officer Fregia's testimony that he observed Sergeant Haney search the [appellant] and that Sergeant Haney did not search inside of or near the [appellant's] anus.
• Based on inconsistencies, demonstrable bias and impeachable convictions, the court does not find credible the testimony from Katina Thomas, Jay Thomas, Fredrick Kennebrew and Roderick Richards that the [appellant's] clothing, including underwear, were removed or pulled down while he was being searched or that a search was conducted of the [appellant's] anus or in the immediate area of the [appellant's] anus by Houston Police Officers.
III. Trial
Appellant proceeded to trial in November 2015 on the possession of cocaine charge.
The four defense witnesses testified at appellant's trial. Richards and Katina Thomas both testified that, after appellant was tased and fell on the ground, an officer matching Haney's description performed an anal cavity search on appellant.
Haney testified regarding the injuries he sustained when he fell after firing his taser at appellant. Haney testified that he ruptured his hamstring, requiring four screws in his pelvis, and broke his wrist, which required a plate and nine screws to mend. At one point during questioning by the State, Haney briefly cried.
Appellant's counsel objected to Haney's testimony discussing his injuries as irrelevant to appellant's charge for possession of cocaine. The trial court overruled appellant's objections.
The jury found appellant guilty of possession of cocaine, enhanced by two prior convictions for possession of a controlled substance.
At the punishment stage of appellant's trial, Haney testified regarding the extent of the injuries he incurred when he fell while pursuing appellant. Appellant's counsel objected to Haney's testimony as irrelevant and "tied to a separate case." The trial court overruled appellant's objections.
The jury sentenced appellant to 20 years' confinement. Appellant timely appealed.
ANALYSIS
Appellant challenges on appeal the trial court's denial of his motion to suppress and admission of Haney's testimony discussing injuries he sustained while pursuing appellant.
Addressing the denial of his motion to suppress, appellant asserts that (1) officers lacked probable cause to arrest him; (2) the officers' search of appellant was an unreasonable search incident to arrest; and (3) the officers' search of appellant exceeded the permissible bounds under Terry v. Ohio, 392 U.S. 1 (1968).
Appellant contends that Haney's testimony discussing his injuries constituted "extraneous offense victim-impact testimony" that was inadmissible during both the guilt and punishment phases of his trial.
I. Motion to Suppress
Appellant asserts that the trial court erred in denying his motion to suppress because Haney's search of appellant exceeded its permissible scope.
The trial court's denial of a motion to suppress is reviewed under a bifurcated standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
First, the trial court's factual findings are reviewed for an abuse of discretion. Id. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court is "entitled to believe or disbelieve all or part of the witness's testimony — even if that testimony is uncontroverted — because [it] has the opportunity to observe the witness's demeanor and appearance." Id. When the trial court makes express findings of fact, we review the evidence in the light most favorable to the trial court's determinations. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
Second, the trial court's application of search and seizure law to the facts is reviewed de novo. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). The trial court's ruling will be affirmed "if that ruling is 'reasonably supported by the record and is correct on any theory of law applicable to the case.'" Valtierra, 310 S.W.3d at 447-48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
A. Warrantless Arrest Based on Probable Cause
The trial court concluded that "there was sufficient probable cause for officers to detain and search [appellant] for possession of narcotics."
A warrantless arrest for an offense committed in the presence of an officer is reasonable if the officer has probable cause. Tex. Code. Crim. Proc. Ann. art. 14.01(a) (Vernon 2015); Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005). Probable cause exists if, "at the moment the arrest is made, the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense." Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The test for probable cause is objective; does not relate to the subjective beliefs of the arresting officer; and requires "a consideration of the totality of the circumstances facing the arresting officer." Id. A finding of probable cause requires "'more than bare suspicion' but 'less than . . . would justify . . . conviction.'" Id. (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).
The officer who witnessed the offense is not required to make the arrest as long as the viewing officer "effectively participated in" and "was fully aware of the circumstances of the arrest." Curry v. State, 831 S.W.2d 485, 487-88 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd) (internal quotation omitted).
An officer's observance of a suspect engaging in what appears to be a narcotics transaction, combined with other incriminating circumstances, gives rise to probable cause supporting a warrantless arrest. See Hamilton v. State, 590 S.W.2d 503, 505 (Tex. Crim. App. 1979); Lunde v. State, 720 S.W.2d 251, 252-53 (Tex. App.—Houston [14th Dist.]), aff'd, 736 S.W.2d 665 (Tex. 1987).
The officers in Hamilton were surveying an area in downtown El Paso after receiving a tip regarding drug transactions occurring in the area. Hamilton, 590 S.W.2d at 504. The officers saw the defendant sitting at a restaurant booth with two other individuals; the defendant gave money to an individual in exchange for a balloon and the defendant placed the balloon in her mouth. Id. Based on "their experience in dealing with drug trafficking," the officers believed the exchange was a heroin transaction and arrested the defendant. Id. Holding that the officers had probable cause to arrest the defendant, the Court of Criminal Appeals concluded that, "[u]pon observing the transaction and recognizing it as an offense, the officers were authorized to make a warrantless arrest." Id. at 505.
The officers in Lunde received a complaint about men standing in front of a Houston grocery store dealing heroin. Lunde, 720 S.W.2d at 252. While surveying the area, the officers observed a man approach the defendant; exchange something with the defendant; and walk away. Id. "[B]ased on their experience as narcotics officers," the officers believed the exchange involved drugs. Id. Concluding that "the arresting officers had reasonable grounds to believe that the transaction observed was one involving drugs," the court held that probable cause justified the officers' warrantless arrest of the defendant. Id. at 253.
Like Hamilton and Lunde, the circumstances in the present case gave rise to probable cause justifying the officers' warrantless arrest of appellant. See Hamilton, 590 S.W.2d at 504-05; Lunde, 720 S.W.2d at 252-53.
On the day of appellant's arrest, the officers were working as part of a surveillance operation investigating an area "known for narcotics and gang activity." The officers recently had received complaints about narcotics dealings in the area. Delasbour testified that he saw appellant engage in three hand-to-hand transactions during which appellant retrieved an object from the waistband area of his shorts, exchanged the object or a part of the object for money, and placed the object back in the waistband area of his shorts. Discussing the conclusions he drew from his surveillance, Delasbour testified that:
. . . I've been doing this for a long time now. I've been the tact [sic] unit for a total of 12 years. Just over my years of experience, hand-to-hand is basically when they take dope, narcotics, and give to another person in exchange for money. That's what we call a hand-to-hand transaction.Delasbour informed Haney and Fregia of his conclusions regarding appellant's activities and confirmed appellant's identity prior to his arrest.
Considering the totality of the circumstances, the officers had probable cause to justify a warrantless arrest of appellant. Appellant's three hand-to-hand transactions, combined with the complaints received about narcotics dealings and the officers' general knowledge of the area's propensity for drug and gang activity, satisfied the necessary showing. See Hamilton, 590 S.W.2d at 504-05; Lunde, 720 S.W.2d at 252-53. Even though Haney did not personally observe appellant's hand-to-hand transactions, Delasbour informed Haney of their occurrence and Delasbour actively participated in appellant's arrest. See Curry, 831 S.W.2d at 487-88. The trial court did not abuse its discretion in concluding that "there was sufficient probable cause for officers to detain and search [appellant] for possession of narcotics."
B. Search Incident to Arrest
The trial court concluded that the officers' search of appellant "was reasonable and based on probable cause."
A search incident to arrest authorizes the police "to conduct 'a full search of the person.'" McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)). This search must be reasonable. Id. at 616.
When determining whether a search incident to arrest was reasonable, the court considers "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. No single factor is determinative and each analysis depends on the particular facts and circumstances of the underlying case. Id.
1. Scope of the intrusion
Witnesses testifying during the suppression hearing presented conflicting descriptions of the intrusiveness of the officers' search of appellant. Haney testified that his search of appellant did not extend beyond the "waistband area" of appellant's shorts, and that he saw the plastic containing cocaine "sticking up from the top of the folds of the top of [appellant's] buttocks." The defense witnesses, on the other hand, testified that the officers exposed appellant's buttocks and searched his anal cavity.
The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Valtierra, 310 S.W.3d at 447. Here, the trial court found credible the officers' testimony regarding how the search had been conducted and concluded that the search (1) was reasonable; and (2) did not rise to the level of a body cavity search. These conclusions are reasonably supported by the record in this case. See id. at 447-48.
"The protections of the Fourth Amendment require that the scope of search be limited to the circumstances justifying the warrantless entry and search." Roth v. State, 917 S.W.2d 292, 302 (Tex. App.—Austin 1995, no pet.). Here, the officers' search of appellant's waistband was reasonable based on the circumstances of appellant's arrest and Delasbour's observance of appellant engage in three hand-to-hand transactions that employed an object stored in appellant's waistband.
2. Manner in which the search was conducted
For this inquiry we consider whether the search was violent and whether the officers conducting the search had training or experience in conducting similar searches. McGee, 105 S.W.3d at 166.
The defense witnesses' testimony suggests that the officers' search of appellant was violent. Haney, in contrast, testified that he used a gloved hand to pull out a piece of plastic containing cocaine protruding from appellant's buttocks and visible when appellant's shirt was pushed up. Haney testified that he did not penetrate appellant's anal cavity.
The trial court was entitled to believe Haney and disbelieve the defense witnesses. Valtierra, 310 S.W.3d at 447. Moreover, the evidence shows that "[w]hile it may have been an uncomfortable experience for [appellant,] that is not sufficient to classify the search as violent." McGee, 105 S.W.3d at 116. Haney testified that he had been trained and was experienced in the process of conducting such a search.
The manner in which the search was conducted was reasonable and weighs in favor of the conclusion that the search was reasonable.
3. Justification for the search
As discussed above, the officers had probable cause to believe appellant was engaged in illegal activity. Delasbour watched appellant conduct three hand-to-hand transactions which, based on Delasbour's knowledge and experience, indicated appellant was selling narcotics. See Hamilton, 590 S.W.2d at 504-05; Lunde, 720 S.W.2d at 252-53. The officers were aware that the area where appellant was arrested had a propensity for drug and gang activity and the officers had received complaints about narcotics dealings in the area. This information and evidence constituted probable cause to warrant Haney's search of appellant.
4. Place where search conducted
The officers detained and searched appellant on a street across from a convenience store. Witnesses stated that people were walking around at the time of appellant's arrest.
The trial court found that Haney "searched the back waistband area" of appellant's shorts and did not remove appellant's clothing or "search inside the [appellant's] anus." Haney testified that, while he was searching appellant's waistband, appellant's shirt rode up exposing about an inch of appellant's buttocks. Haney testified that this exposure was exacerbated by appellant's twisting and trying to get out of Haney's grasp. The defense witnesses, in contrast, testified that the officers exposed appellant's buttocks and searched his anal cavity.
The trial court was entitled to believe Haney and disbelieve the defense witnesses. Valtierra, 310 S.W.3d at 447. The search described in the trial court's findings reasonably could take place in public and did not rise to the level of those requiring a sterile environment. See McGee, 105 S.W.3d at 617 (a visual body cavity search "must be conducted in a hygienic environment where there is no risk of infection"). Moreover, according to Haney's testimony, any exposure of appellant's buttocks was exacerbated by appellant's resistance.
The location of Haney's search — a street across from a convenience store — of appellant was reasonable and weighs in favor of the conclusion that the search was reasonable.
5. Conclusion
All four factors weigh in favor of the conclusion that the officers' search of appellant was reasonable. See id. at 616-17. The trial court did not err in denying appellant's motion to suppress.
Because we conclude that (1) the officers had probable cause to arrest appellant; and (2) the officers' search of appellant incident to arrest did not exceed its legally-permissible scope, we do not address appellant's arguments addressing the scope of a Terry search. Williams v. State, 726 S.W.2d 99, 100 (Tex. Crim. App. 1986) (declining to address issue of whether officer justified in making protective search for weapons where officer had probable cause to arrest).
II. Haney's Testimony Regarding His Injuries
Appellant asserts that the trial court erred by overruling his objections to Haney's testimony addressing the injuries he incurred while pursuing appellant. This testimony, appellant argues, constitutes extraneous offense victim-impact testimony.
Appellant objected at the guilt and punishment phases of his trial that Haney's testimony discussing his injuries was irrelevant and "tied to a separate case."
Appellant's trial objections to Haney's testimony did not preserve error with regard to appellant's victim-impact argument on appeal. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ("To avoid forfeiting a complaint on appeal, the party must "let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it." (internal quotation omitted)); Karnes v. State, 127 S.W.3d 184, 195 (Tex. App.—Fort Worth 2003, pet. ref'd) (appellant's objection that testimony was "irrelevant, highly prejudicial, and below the threshold required for admissibility" did not preserve victim-impact argument on appeal).
In accordance with appellant's objections at trial, we review the admission of the challenged testimony for relevancy and as extraneous offense evidence. The trial court did not err in overruling appellant's objections to Haney's testimony.
The trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretion "unless its determination lies outside the zone of reasonable disagreement." Id.
Relevant evidence is admissible unless the unfair prejudicial effect of the evidence substantially outweighs its probative value. Tex. R. Evid. 403. "Rule 403 favors the admissibility of relevant evidence." Green v. State, 971 S.W.2d 639, 645 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd).
Texas Rule of Evidence 404(b) prohibits extraneous offense evidence "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Tex. R. Evid. 404(b)(1). Extraneous offense evidence may be admissible for another purpose, such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. at (b)(2).
Evidence of extraneous offenses committed by the accused is admissible to (1) show the context in which the criminal act occurred because "events do not occur in a vacuum" and "the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence;" (2) prove scienter, where intent or guilty knowledge is an element of the State's case; and (3) rebut a defensive theory raised by the accused. Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex. Crim. App. 1972).
The State is generally "entitled to show circumstances surrounding an arrest, because evidence of these circumstances, including the defendant's resistance, may demonstrate . . . how the police located, pursued, and apprehended the defendant." Burks v. State, 227 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (internal quotation omitted). Circumstances showing flight from custody or flight to avoid arrest are admissible even though they may show the commission of extraneous offenses. Thompson v. State, 652 S.W.2d 770, 772 (Tex. Crim. App. [Panel Op.] 1981); Williams v. State, 832 S.W.2d 152, 154 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd). Moreover, "[e]vidence of flight is admissible as a circumstance from which an inference of guilt may be drawn." Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989).
At the punishment phase of trial, evidence may be offered "as to any matter the court deems relevant to sentencing," including "the circumstances of the offense for which [the defendant] is being tried" and "any other evidence of an extraneous crime or bad act . . . for which [the defendant] could be held criminally responsible." Tex. Code. Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2017); see also Umana v. State, 447 S.W.3d 346, 358 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) ("During punishment, relevant evidence is that which assists the fact finder in determining the appropriate sentence given the particular defendant in the circumstances presented." (internal quotation omitted)).
Here, the trial court did not abuse its discretion by admitting Haney's testimony discussing his injuries during the guilt phase of appellant's trial.
First, this evidence was relevant to "the circumstances surrounding [appellant's] arrest" and showed how the officers "located, pursued, and apprehended" appellant. See Burks, 227 S.W.3d at 148. Haney's testimony discussing his injuries was part and parcel of the circumstances showing appellant's flight to avoid arrest. See Thompson, 652 S.W.2d at 772.
Second, this evidence was relevant to a material element of the State's case. The jury charge required the State to prove beyond a reasonable doubt that appellant "knowingly or intentionally" possessed the cocaine found on his person. See Tex. Health & Safety Code Ann. § 481.115(a). Evidence of flight is relevant to show guilt and Haney's injuries are part of the circumstances surrounding appellant's attempt to evade arrest. See Foster, 779 S.W.2d at 859.
Third, Haney's testimony regarding his injuries refutes a defensive theory raised by the accused. Defense witnesses Richards and Katina Thomas testified at trial that, after appellant was tased and fell on the ground, an officer matching Haney's description performed an anal cavity search on appellant. Haney testified that, when he fell after firing his taser at appellant, he ruptured his hamstring and broke his wrist. Testimony addressing the extent of Haney's injuries incurred after he discharged his taser provided a context in which to evaluate Richards's and Katina's testimony. See Albrecht, 486 S.W.2d at 100-01.
The trial court similarly did not abuse its discretion by admitting Haney's testimony discussing his injuries during the punishment phase of appellant's trial. This testimony fits squarely into allowable evidence under article 37.07 as circumstances surrounding the offense for which appellant was tried. See Tex. Code. Crim. Proc. Ann. art. 37.03 § 3(a)(1). The prejudicial nature of this testimony does not render it inadmissible. See Umana, 447 S.W.3d at 358.
CONCLUSION
We overrule appellant's two issues on appeal and affirm the trial court's judgment.
/s/ William J. Boyce
Justice Panel consists of Chief Justice Frost and Justices Boyce and Jewell. Do Not Publish — Tex. R. App. P. 47.2(b).