Opinion filed May 14, 20 09



### In The 

# Eleven th Court of Appeals

__________ 

### No. 1 1- 07 -0 02 66 -CR

____ ____ _ MIC HAE L E. “GIBSON ” HAR BER T, Ap pellant
V.
STA TE OF TEX AS , A ppellee

On App eal from the 118th Distric t Court
How ard County, Texas
Trial Court Cause No. 12034

M E M O R

A N D U M O P I N I O N Michae l E

. “Gibson” Har bert appea ls his conviction for the offe nse of murder. Th e j u ry assessed his punishment at life imprisonment i n t he Te x as De partment of Criminal Just ice, I nstitut ional Division, and a fine of $10,000. He contends in two issues on appea l that the trial court abused its discre tion in admitt ing e vidence as t o the extraneous off ense of possession of marihuana

an d th a t t h e tr ia l c o u rt e r

r e d in o v e r r u li n g h is o b

je c ti o n to th e p r o s e c u to r ’ s c lo s in g ar g u me n t. We

a ff ir m. Har bert make s no assertion that the e vi d en ce i s insufficient to show that he mur dere d the victim. He urg es in issue one that the trial court abused its discretion in admitting evide nce a s to the extraneous offe nse of possession of ma rih uana. Prior to tria l, the trial court g rante d Har bert’s motion2

in l imi ne , p ro hib iti ngthe State fr om i ntr od uc inge vid e nc e of

a ny e xtra ne ou s c on du c t a lle g e dly perpe trated by Har

bert, whether adjudicate d or not. At trial, the prosec utor asked Corporal Nathan L on de nb e rg , the B ig Spr ing po lic e of fi c e r wh o ar

re ste d Harb e rt a nd bo ok e d him into ja il, wh a t e lse he had be en booked f

or. Corpora l L ondenber g responde d that, during the booking proce ss, it was di sco vere d that

Ha rb e rt ha d s ome mari hu a na

in h is p oc ke t and

tha t he wa s c ha

rg e d w iththat. Counsel for Ha

rber t made a ge nera l objection. Be fore the trial cour t could rule on the obje ction, Har bert’s c ounsel moved for a mistrial beca

use the e vidence violated the motion in lim ine about extraneous m atters. The trial court denied the m otion for mis trial without ever expressly ruling on Har bert’s obje ction. Sub se qu e ntl y , F e lic ia

Al dr idg e , th e dr ive r o f t

he c a r in wh ic h Ha

rb e rt wa s r idi nga t th e tim e of his arr est, testified that cra ck coc aine f ound in her possession at the time of H arbe rt’s ar rest wa s hers. She indicated that neither she nor Har

bert was smoking the cr ack c ocaine that night. When the S tat e ’ s a tt o r

n e y a p p a r e n tl y s ta rte d to a s k w h e th e r th e y h a d s mo k e d th e ma r ih u a n a , H a r b e rt’ s
c ouns e l ma de a

g e ne ra l ob

je c tio n a nd the n r e fe rr e d to his mot ion in l imi ne a bo ut e xtra ne ou s matte rs
. The S tate arg ued that it was entitl ed to prese nt the evidence because it went to Harbe rt’s per ception and st ate of mind. Aldridg e then testified t hat neither she nor Har bert had been smoking marihuana that night. The Te x as Rules of Evidenc e provide that evidenc e of other crimes, wrong s, or acts is not admissible to prove the c hara cter of a pe rson in order

to show ac t i o n in conformity there with. T EX
. R. E V ID . 404(b). How ever , it may be admissi ble for other purposes, such as proof of motive, op po rt un ity , in te nt, pr e pa

ratio n, pla

n k nowl e dg e , id e nti ty , o r a

bs e nc e of mis take or

a c c ide nt. Rule 404(b). These e x ceptions ar e neither mutually exclusive nor collectively exhaustive. DeLa Pa z v . S tat e , 279 S.W .3d 336 (Tex. Crim. App. 2009). Whe the r e xtra

ne ou s o ff e ns e e vid e nce ha s r e le va nc e a pa rt fr om c ha ra c te r c on fo rm ity

is a question for the tria l court. Id. A tri a l court ’s ru lin g on the a dmi ssi bil ity of e xtra ne ou s o ff e ns e s is revie wed under a

n abuse of

discretion standa

rd. Id. We will uphold the trial cour t’s ruling as long as it is within t he zone of re asonable disag ree ment. Id. Th e tr ia l c ourt ’s ru lin g is g e ne ra lly wi thi n the zon e of

re a so na ble dis a g re e me nt i f t

he e vid e nc e sh ow s th a t ( 1) an e xtra ne ou s tr a ns a c ti on

is rele vant to a mater ial, non-prope nsity issue and (2) the probative value of t h e evidence is not substantially

outweig hed by

the dang er of

unfair pr ejudice, confusion of the issues, or misleading the jury

. Id.3

The State a

rg ues that the testimony

about marihua

na re sulted from questioni ng of Corpora l L ondenber g by defe nse counsel. Howeve r, our rec ord ref lects that the testimony was elicited by the p r o s e c u t o r , n o t d e f

e n s e c o u n s e l

. T h e S t a t e a t t h a t t i m e m a d e n o s u g g e s t i o n a s t o w h a ti s s u e , i f a n y, oth e r t ha n c ha ra c te r c on fo rm ity , the e vid e nc e te nd e d to su pp or t. L a te r, wh e n th e Sta te so ug ht t o a sk Al dr idg e wh e the r s he or

Ha rb e rt we re smo kin g mari hu a na on the nig ht o f t

he mur de r, the Sta te indicated that the e vidence went to Har bert’s pe rce ption and state of mind. The e vidence befor e us is that Har bert was in possession of some marihuana at the time of his arr e st a

nd that he ha d n ot s mok e d a ny of it o n th e nig ht i n q

ue sti on . T he re wa s n o is su e a s to whether Har bert shot the victim. Not only did the fore nsic eviden ce e stablish that the shots were fi re d f ro m hi s g un , but he ha d hims e lf sa id so wh e n he tol d thos e do ing fo re ns ic wo rk that the y did not ne ed to te st his hands for g unshot r esidue. The only materia l issues at trial wer e whether t he dece ased c onfronted Har

bert with a

g un prior to the shooting and, if so, whe ther Ha rber t’s actions

wer e consistent with those who wish to a vail themselves of the defe nse of self-de fense

. We hold that evidenc e of H arbe rt being in possession of m arihua na is not rele vant t o those issues and that, eve n if it were , i t s p robative value is substantially outweig hed by

the dang er of

unfair pr ejudice. Consequently , we hold that the trial cour t abused its discretion in admitting into evidenc e the f act that Har bert wa s in possession of marihuana at the time of his ar

rest. While Harbe rt’s per ception

and state of min d mig ht be of so me re le va nc e to the iss ue s in

the c a se , th e Sta te ha s f

a ile d to e xpla in how Har bert’s me re posse ssion of marihuana , without more, relates to either Ha rber t’s perc eption or state of mind. Even if it could be said to be relevant, we hold that its probative value is we ak and substantially

outweig hed by

the dang er of

unfair pr ejudice. I nasmuch a s we have conc luded that the trial c ourt abused its discre tion by admitting evidenc e of H arbe rt’s possession of mar ihuana, we must determine if the admission of this evidence aff ecte d Har bert’s substantial rig hts. T EX
. R. A PP
. P. 4 4. 2( b) ; Pr ibl e v . S tat e , 175 S.W .3d 724, 737 (Tex. Crim. App. 2005). Substantial rig hts are not affe cted by the er roneous a dmission of evidence if the appellate court, afte r ex amining the rec ord as a whole, has fair assura nce that the err or did not influence the jury

or had but a slig ht effe ct. Mo til la v . S tat e , 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

adver sely

aff ected t h e jury ’s dec ision by consideringever

y thing in the

rec ord, including the following : (1) testimony or phy sical evidence a dmitted for the jury ’s consideration; (2) the nature of the evidenc e supporting the verdic t; (3) the cha rac ter of the alleg ed4

err or and howit might be conside red in c onnection with ot her e vidence in the case ; (4) the jury instructions; (5) the State’s theory and any defe nsive theories; (6) closing arguments; ( 7) voir dire ; and (8) the State’ s em p h as i s o f t he er ror. Ha le yv . S tat e , 173 S.W .3d 510, 518 (Tex. Crim. App. 2005). As pr e vio us ly

no te d, it w a s und isp ute d th a t H a rb e rt fi re d th e fata l sh ots that ki lle d th e vic tim

. Ha rb e rt re lie d o n s e lf

-d e fe ns e . T he re wa s e vid e nc e that H a rb e rt fired hi s gun a ft e r t

he vic tim confr onted him with a g un at the fr ont door of the pr emises. Howe ver, f orensic e vidence showed that the victim died inside the res i dence , near the bac k door, as a

result of thre e conta ct or ne arcontac t bullet wounds to his back from the gun found in Har bert’s posse ssion sh o rt l y afte r the shooting. In addition to the testimony about Har

bert’s posse ssion of marihuana , Aldridg e testified that sh e ha d on he r pe rs on fo ur g ra ms o f c ra c k c oc a ine . Wh ile he sit a nt t o a dmi t th a t sh e liv e d w ith Har bert be cause she lived in housing under a prog ram with the United States Depa rtment of Housing and Ur ban De velopment, s he acknowledg ed that they had three children toge ther and that he wa s her man. She subsequently

t estified that neither

she nor Ha

rber t was smoking the marihuana on the

occa sion in question. I n closing argument, the prosec utor said:

No w, a ro uti ne se a rc h o f t

he ve hic le tur

ns up He nnessy

Cog na c a nd

so me mari hu a na . I

do n’ t sa y that be c a us e the y ’r e ne c e ssa

ri ly ba d ac ts. Th e te sti mony , if y ou believe it, is not that the Def endant or F elicia Aldr idge partook of ma rihuana that night or partook of that Hennessy Cogna c or p ar t o o k of the c rac k coca ine she po sse sse d th a t ni g ht. Th e y de ny a ll that.
I ntere stingly , Har

bert’s c ounsel did not object to this argument on the basis of its ref ere nce to marihuana

but, instead, soug ht a m i s t ri al on t he basis that Ha rber t, who did not testify , had not denied that he had used ma rihuana , cog nac, or

cra ck coc aine on the nig ht of the murder . After the tr ia l c ourt ov e rr ule d H a rb e rt ’s mot ion

fo r m ist ri a l, t he pr os e c uto r a

rgue d: Fe licia Aldridg e states that ther e wa s no drug use that night. She states that there was no drinking that night. You may rea sonably

consider w hether

or not she was telling the truth when she said that and whe th er or not that affe cted he r sensibiliti es or the se nsibili ties of anyone else in the course of conduc t of that evening

. Although the State did emphasize the error in its final arg ument, we hold that the evidentiar y ref ere nces to Harber

t’s marihuana

possession did not affec t his subst antial rig hts, give n Har bert’s

a dmi ssi on

tha t he wa s th e sh oo te r, e vid e nc e that H a rb e rt ha d threate ned

the vic tima

sh or t ti me befor e the s h o o t i n g, forensic evidenc e showing that the victim was shot at close r ang e inside the5

house with the g un fou n d in Harbe rt’s possession, and Aldridg e’s testimony conce rning cra ck

coca ine. While Harbe rt argues cor rec tly that his objections t o t h e re fe rences in the evide nce
conce rning the marihua

na found in his possession should have be en s u s t ai n ed , he make s no argument and submits no authority on the i ssue of whether the admission of that evidenc e af fec ted his su bs ta nti a l r ig hts

. W i t h re s p ec tt o t h e i s s u e o f ad m i s s i b i l i ty , Ha rb er t d i d ci t e s ev er al ca s es , i n cl u d i n g W allace v. Sta te , 679 S.W .2d 1 (Tex. Crim. App. 1984). I n that case , the def endant’ s attempted ca

pital murder conviction was r ever sed due to the introduc tion into evidence of marihuana found i n the def endant’ s possession. The Texas Rules of Evidenc e did n o t b ec o m e effective until Marc h 1, 1998. Consequently , the cour

t in W allace did not discuss the issue of whe ther the a dmission i nto evidence of mari hu ana

po sse ssi on

on the pa rt of the de fe nd a nt af

fe c te d his sub sta

nti a l r ig hts . Wh ile it h e ld that the evidenc e wa s ext reme ly prejudicia l, we notice that the defe ndant i n that case possessed marihuana , cra ck coc aine, a nd methamphetamine. Id. We overrule issue one. Har be rt a s s e rts in is s u e tw o th a t th e tr ia l c o u rt e r r e d in o v e r

r u li n g h is o b

je c ti o n to the prosec utor’s closing argument conce rning the alleg ed denia l of the us e of ma rihuana , cog nac, or
cra ck coc aine. We have previously noted that the prose cutor, in his fi n al ar gu m ent, stated that “they” denie d the use of marihuana , cog nac, or cr ack c ocaine on the nig ht of the murder . We have also noted that Ha

rber t had objecte d an d m o v ed fo r a mi strial based upon the fac t that he had not denied their

use. At this t i m e, we wo u l d point out that, after the tr ial court ove rruled H arbe rt’s

mo t i o n for mis trial, the prose cutor a rg ued to the jury

that Aldridg e, Ha

rber t’s companion on that evening , had denie d their use. We would first note that the prose cutor’s r efe renc e to the fa ct that “they” denie d the use of the marihua

na, cog nac, and crack coca ine could rea sonably have been intended as a ref ere nce to the de fe ns e a s a

g ro up , n ot t o H a rbert in di vi dua lly . We a g re e tha t, i f t he re fe re nc e wa s in te nd e d to inc lu d e H ar

b e rt i n d iv id

u a ll y , it w a s an in c o r

r e c t s tate me n t a

n d th e o b je c ti o n s h o u ld

h a v e been

su sta ine d. Th e re is s ome qu e sti on a s to whe the r the a rgume nt wa s har mf ul to H a rb e rt

a t a ll, a t le a st with respec t to the objection that he had not de nied the use of marihuana , cog nac, or cra ck coc aine

on the nig ht i n q

ue sti on . We ho ld that, in a ny e ve nt, a ny e rr or in o ve rr uli ngHa rb e rt ’s ob je c tio n to the State’s ar g ument, for the r easons we asser ted with respe ct to issue one, did not aff ect Ha rber t’s substantial rig hts. Har

bert makes no argument that the prosecutor’s arg ument, with respec t to the objection he of

fer ed, wa s harmful or that it affec ted his substantial rights. We overrule issue two.John G . H ill , For m er Just ic e, Cour

t of A ppea ls , 2nd D is tri ct

of T ex as a t For

t W orth, s itt ing by

a ss ig nm ent

. 1 6 The judg ment is affirme d.

PER C URI AM

May 14, 2009 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , a n d

H i l l , J. 1