Opinion filed May 14, 2009

In The

Eleventh Court of Appeals

__________

No. 11-07-00266-CR

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MICHAEL E. “GIBSON” HARBERT, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 118th District Court

Howard County, Texas

Trial Court Cause No. 12034

M E M O R A N D U M O P I N I O N

Michael E. “Gibson” Harbert appeals his conviction for the offense of murder. The jury

assessed his punishment at life imprisonment in the Texas Department of Criminal Justice,

Institutional Division, and a fine of $10,000. He contends in two issues on appeal that the trial court

abused its discretion in admitting evidence as to the extraneous offense of possession of marihuana

and that the trial court erred in overruling his objection to the prosecutor’s closing argument. We

affirm.

Harbert makes no assertion that the evidence is insufficient to show that he murdered the

victim. He urges in issue one that the trial court abused its discretion in admitting evidence as to the

extraneous offense of possession of marihuana. Prior to trial, the trial court granted Harbert’s motion
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in limine, prohibiting the State from introducing evidence of any extraneous conduct allegedly

perpetrated by Harbert, whether adjudicated or not. At trial, the prosecutor asked Corporal Nathan

Londenberg, the Big Spring police officer who arrested Harbert and booked him into jail, what else

he had been booked for. Corporal Londenberg responded that, during the booking process, it was

discovered that Harbert had some marihuana in his pocket and that he was charged with that.

Counsel for Harbert made a general objection. Before the trial court could rule on the objection,

Harbert’s counsel moved for a mistrial because the evidence violated the motion in limine about

extraneous matters. The trial court denied the motion for mistrial without ever expressly ruling on

Harbert’s objection.

Subsequently, Felicia Aldridge, the driver of the car in which Harbert was riding at the time

of his arrest, testified that crack cocaine found in her possession at the time of Harbert’s arrest was

hers. She indicated that neither she nor Harbert was smoking the crack cocaine that night. When

the State’s attorney apparently started to ask whether they had smoked the marihuana, Harbert’s

counsel made a general objection and then referred to his motion in limine about extraneous matters.

The State argued that it was entitled to present the evidence because it went to Harbert’s perception

and state of mind. Aldridge then testified that neither she nor Harbert had been smoking marihuana

that night. 

The Texas Rules of Evidence provide that evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity therewith.

TEX. R. EVID. 404(b). However, it may be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident.

Rule 404(b). These exceptions are neither mutually exclusive nor collectively exhaustive. De La

Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009).

Whether extraneous offense evidence has relevance apart from character conformity is a

question for the trial court. Id. A trial court’s ruling on the admissibility of extraneous offenses is

reviewed under an abuse of discretion standard. Id. We will uphold the trial court’s ruling as long

as it is within the zone of reasonable disagreement. Id. The trial court’s ruling is generally within

the zone of reasonable disagreement if the evidence shows that (1) an extraneous transaction is

relevant to a material, non-propensity issue and (2) the probative value of the evidence is not

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury. Id. 
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The State argues that the testimony about marihuana resulted from questioning of Corporal

Londenberg by defense counsel. However, our record reflects that the testimony was elicited by the

prosecutor, not defense counsel. The State at that time made no suggestion as to what issue, if any,

other than character conformity, the evidence tended to support. Later, when the State sought to ask

Aldridge whether she or Harbert were smoking marihuana on the night of the murder, the State

indicated that the evidence went to Harbert’s perception and state of mind.

The evidence before us is that Harbert was in possession of some marihuana at the time of

his arrest and that he had not smoked any of it on the night in question. There was no issue as to

whether Harbert shot the victim. Not only did the forensic evidence establish that the shots were

fired from his gun, but he had himself said so when he told those doing forensic work that they did

not need to test his hands for gunshot residue. The only material issues at trial were whether the

deceased confronted Harbert with a gun prior to the shooting and, if so, whether Harbert’s actions

were consistent with those who wish to avail themselves of the defense of self-defense. We hold that

evidence of Harbert being in possession of marihuana is not relevant to those issues and that, even

if it were, its probative value is substantially outweighed by the danger of unfair prejudice.

Consequently, we hold that the trial court abused its discretion in admitting into evidence the fact

that Harbert was in possession of marihuana at the time of his arrest. While Harbert’s perception

and state of mind might be ofsome relevance to the issues in the case, the State has failed to explain

how Harbert’s mere possession of marihuana, without more, relates to either Harbert’s perception

or state of mind. Even if it could be said to be relevant, we hold that its probative value is weak and

substantially outweighed by the danger of unfair prejudice. 

Inasmuch as we have concluded that the trial court abused its discretion by admitting

evidence of Harbert’s possession of marihuana, we must determine if the admission of this evidence

affected Harbert’s substantial rights. TEX.R. APP. P. 44.2(b); Prible v. State, 175 S.W.3d 724, 737

(Tex. Crim. App. 2005). Substantial rights are not affected by the erroneous admission of evidence

if the appellate court, after examining the record as a whole, has fair assurance that the error did not

influence the jury or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002). When a trial court errs by improperly admitting evidence, an appellate court determines the

likelihood that the error adversely affected the jury’s decision by considering everything in the

record, including the following: (1) testimony or physical evidence admitted for the jury’s

consideration; (2) the nature of the evidence supporting the verdict; (3) the character of the alleged
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error and how it might be considered in connection with other evidence in the case; (4) the jury

instructions; (5) the State’s theory and any defensive theories; (6) closing arguments; (7) voir dire;

and (8) the State’s emphasis of the error. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App.

2005).

 As previously noted, it was undisputed that Harbert fired the fatal shots that killed the victim.

 Harbert relied on self-defense. There was evidence that Harbert fired his gun after the victim

confronted him with a gun at the front door of the premises. However, forensic evidence showed

that the victim died inside the residence, near the back door, as a result of three contact or nearcontact bullet wounds to his back from the gun found in Harbert’s possession shortly after the

shooting. In addition to the testimony about Harbert’s possession of marihuana, Aldridge testified

that she had on her person four grams of crack cocaine. While hesitant to admit that she lived with

Harbert because she lived in housing under a program with the United States Department of Housing

and Urban Development, she acknowledged that they had three children together and that he was her

man. She subsequently testified that neither she nor Harbert was smoking the marihuana on the

occasion in question. In closing argument, the prosecutor said:

Now, a routine search of the vehicle turns up Hennessy Cognac and some

marihuana. I don’t say that because they’re necessarily bad acts. The testimony, if

you believe it, is not that the Defendant or Felicia Aldridge partook of marihuana that

night or partook of that Hennessy Cognac or partook of the crack cocaine she

possessed that night. They deny all that.

Interestingly, Harbert’s counsel did not object to this argument on the basis of its reference

to marihuana but, instead, sought a mistrial on the basis that Harbert, who did not testify, had not

denied that he had used marihuana, cognac, or crack cocaine on the night of the murder. After the

trial court overruled Harbert’s motion for mistrial, the prosecutor argued: 

Felicia Aldridge states that there was no drug use that night. She states that

there was no drinking that night. You may reasonably consider whether or not she

was telling the truth when she said that and whether or not that affected her

sensibilities or the sensibilities of anyone else in the course of conduct of that

evening. 

Although the State did emphasize the error in its final argument, we hold that the evidentiary

references to Harbert’s marihuana possession did not affect his substantial rights, given Harbert’s

admission that he was the shooter, evidence that Harbert had threatened the victim a short time

before the shooting, forensic evidence showing that the victim was shot at close range inside the
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house with the gun found in Harbert’s possession, and Aldridge’s testimony concerning crack

cocaine. While Harbert argues correctly that his objections to the references in the evidence

concerning the marihuana found in his possession should have been sustained, he makes no

argument and submits no authority on the issue of whether the admission of that evidence affected

his substantial rights.

With respect to the issue of admissibility, Harbert did cite several cases, including Wallace v.

State, 679 S.W.2d 1 (Tex. Crim. App. 1984). In that case, the defendant’s attempted capital murder

conviction was reversed due to the introduction into evidence of marihuana found in the defendant’s

possession. The Texas Rules of Evidence did not become effective until March 1, 1998.

Consequently, the court in Wallace did not discuss the issue of whether the admission into evidence

of marihuana possession on the part of the defendant affected his substantial rights. While it held

that the evidence was extremely prejudicial, we notice that the defendant in that case possessed

marihuana, crack cocaine, and methamphetamine. Id. We overrule issue one.

Harbert asserts in issue two that the trial court erred in overruling his objection to the

prosecutor’s closing argument concerning the alleged denial of the use of marihuana, cognac, or

crack cocaine. We have previously noted that the prosecutor, in his final argument, stated that

“they” denied the use of marihuana, cognac, or crack cocaine on the night of the murder. We have

also noted that Harbert had objected and moved for a mistrial based upon the fact that he had not

denied their use. At this time, we would point out that, after the trial court overruled Harbert’s

motion for mistrial, the prosecutor argued to the jury that Aldridge, Harbert’s companion on that

evening, had denied their use. 

We would first note that the prosecutor’s reference to the fact that “they” denied the use of

the marihuana, cognac, and crack cocaine could reasonably have been intended as a reference to the

defense as a group, not to Harbert individually. We agree that, if the reference was intended to

include Harbert individually, it was an incorrect statement and the objection should have been

sustained. There is some question as to whether the argument was harmful to Harbert at all, at least

with respect to the objection that he had not denied the use of marihuana, cognac, or crack cocaine

on the night in question. We hold that, in any event, any error in overruling Harbert’s objection to

the State’s argument, for the reasons we asserted with respect to issue one, did not affect Harbert’s

substantial rights. Harbert makes no argument that the prosecutor’s argument, with respect to the

objection he offered, was harmful or that it affected his substantial rights. We overrule issue two.
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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The judgment is affirmed.

PER CURIAM

May 14, 2009 

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.1