NO. 07-06-0048-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B DECEMBER 29 , 2006

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DAVID l. SM ITH, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 137 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2004-407,438; HON. CECIL G. PURYEAR, PRESIDING

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Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant, David I. Smith, appeals his c onviction for possessing , with i ntent to deliver, a controlled substance (cocaine) in adrug free z one. His two issues inv olve the legal sufficiency of the evidence to sustain his convicti on and the trial court’s admiss ion of an extraneousoffense. We aff irm the judg ment.2 Issue 1 - Leg

al Sufficien cy In his first i ssue, appellant complains of the le gal sufficiency of the evidence by contending that t he te stimony of the only witness to the drug sale was not sufficien tly corroborated. Furthermore , corroborat ion was req uired since the witness , Dorothy Wilbon, was a confident ial informant of the pol ice. We overrule the i ssue. According to statute, a defe ndant may not be co nvicte d of the off ense with which appellant

was char

ged on the testi mony

of a person w ho is not a li censed peace officer or
a special investigator but who is acting covertly on behalf of the police unless the testimony is corrobor

ated by other evidence tending to connect the defendant to the offense. T EX
. C ODE C RIM
. P R OC
. A N N
. art. 38.141(a) (Vernon 2005 ). In assessing whether this requirement

was satisfied, we ignore the informant’s testimony an d instead examine the record to see if

any other ev idence tended to connect the accused to the offense. Dennis
v. State, 151 S.W .3d 745, 749 (Tex. App.–Am arillo 2004, pet. ref’d); Young v. State, 95 S.W.3d 448, 451 (Tex. App.–H ouston [1 st Dist.] 2002, pet. ref’d). Thi s other evi dence need notdirectly

link the defendant to the crime or es tablish his guilt bey ond a reasonable doubt. Young v. State, 95 S.W.3d at 451. Itneed only connect him to the offense. Furthermore , we review

the corrobor

ating evidence i n the light most favorable to t he verdic t. Dennis v. State, 151 S.W.3d at 749. Ignoring the testimony of W ilbon, we still have that of Officers Michelle Holder and Walter Scott. Holder testified that W ilbon was to purchase drugs f rom a perso n named “Spunk.” She further

stated that she met up w ith Wilbon on June 14, 2004, sear ched her for money, weapons, or contr aband, and fitted h er with a recording device. Holder then3

drove W ilbon to an apartment com plex, gave her $200, and dropped W ilbon off. Shortly thereafter, Wilbon came back to H older’s vehicle w ith crack cocaine. In t urn, Scott infor med the jury that Wilbon indicated to him s he could p urchas e crackcocaine from a per son named Spunk. According to pol ice records, th at name refer red to appellant. Scott also had Wilbon view a photo spr ead, and she identi fied appellant

as Spunk. So too did Scott and his men con duct visual surveillance of Wilbon after she left Ho lder. Wilbon was seen wal king throug h the apartment compl ex to an apartment. She talked to people at the ab ode while waiting for appellant to r eturn. Soon, appellant

arriv ed, and as he di d, a child cou ld be heard say ing, “What’s up, Spunk?” Thereafter, W ilbon le ft the apartm ent and was seen en tering a vehicle with appel lant who Scott reco gnized . Add itio nall y, the vehicle’s licen se pl ate wa s trac ed to a woma n kno wn to be appe llant’s g irlfriend. Wilbon also was heard i ndicating to appellant that s he wa s buying the cocaine for s omeone else and that s he was g oing to make money off the transaction. So too wasshe heard counti ng the money in appellant’s pr esen ce and requesting from him something in whic h to put the drug s. The testimony

of Holder and Scott was more than a mple to connect appellant to the offense. See Dennis v. State, supra (finding the corroborating evidence sufficient when the informant and his v ehicle were searched prior to the pur chase, the defendant wa s obse rve d comi ng o ut of a hou se an d app roac hing the i nfor mant ’s vehic le, the i nfo rman t called the defendant by name, wordson an audio reco rding indicated theexc hang e of a substance for $400, the officer i dentified one of the voices on the tape as the def endant’s, and when the in formant returned to the officer he gave h im cocaine); Jefferson v. State, 99 S.W.3d 790, 792-93 (Tex. App.–East land 2003, pet. r ef’d) (holding the corrob oratin g1 To the ext ent t hat appel lant complains on appeal of t he procedur e used bythe t ri al cour t i n rul ing on the admissibi li ty

of t he evi dence at a pret ri al hea ri ng, he fai led t o mak e such a complai nt to t he tr ial courtand there by wa ived a ny erro r. 4 evidence sufficient even though t he informan t went by herself to a houseto make the purchase since she had b een searched before s he left, the officer watche d her go into the house, a recording was made of the tr ansaction, the officer

testified that

the defendan t’s voice was on the re cording, and the informant g ave the officer cocaine w hen she returned to his vehicle)

. And, while appellant’s voice was not identified, he no netheless was visually identified by an officer as enteri ng the vehi cle in w hich the trans action occurr ed. Issue 2 - Extr

aneous Off

ense Appellant

next contends that

the trial court erred i n admitting ev idence of another sale of cocaine by him to Wilbon four day s after the J une 14, 2 004 buy. 1 The evidence
was purportedly inadmissible under both Texas R ules o f E v i d e n c e 4 0 4 ( b ) a n d 4 0 3

. We overrulethe contention. Evidence of ex

tra neou s offe nses or bad acts may beadmitted to prove motive, opp ortu nity, intent, prepar ation, plan, knowledge, identity, o r absenc e of mistake or accident. T EX
. R. E VID
. 404 (b). A nd, wh ethe r the trial cour t corr ectl y admitted such evidence depends on whether i t abused its di scretion. Lane v. State , 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). That is, if the deci sion came within the zone of reasonable disagreement, then it was no t wrong

. Montgomer y v. State , 810 S.W .2d 3 72, 3 91 (T ex. Crim. App. 1991)

. Here, appellant conce des that “[t]r ial counsel coul d have arguably raised the i ssue of whe ther [he] [a]p pell ant commi tted the a ct h e wa s ac cuse d of thro ugh cross- examination5

of the State’s w itnesses.” Indeed, in attempting to discredit the testimony of Wilbon and Scott identify ing him asthe seller during the J une 14 th sale, he place the issue of ident ity into play. Next, it is tru e, as contended by appellant, that before evidence of an extraneous offense can be used to es tablish identi ty, the extraneousoffense “must be so si milar to the offense charged that

the offenses are marked as the accused’s handiwork.” Lane v. State , 933 S.W.2d at 519; accord Johnson v. State , 68 S.W.3d 644, 651 (Tex. Cri m. App. 2002) (stating the same). Yet, there are s everal w ays to sati sfy this r

equirement. I t may be done through proof of a co m mon modus operan di or through proof of proximit y in time a nd place. Lane v. State , 933 S.W.2d at 519. Moreover, the similarities between the off ense for which the accused is being tried and the extraneou s offense are sufficient if th ey make the latter rel evant

to the issue of

identity. Jimenez

v. State , No. 08-0 5-00 46-C R, 20 06 T ex. App

. L EXIS 9282 at *18 (Tex . App.–El Paso, O ctober 26, 2006, nopet. h.); Thoma s v
. State , 126 S.W.3d 138, 144 (Tex

. App.–Houston [1 st Dist.] 2003, pet. dism’d). For example, in Ranso n v. Sta te , 503 S.W.2d 810 (Tex. Crim. App. 1974), the ex traneous offense was deemed admi ssible on the issue of identit y since the same offense was committed both times, they occur red withi n a three-day period in the same city, and appellan t(who w

as identified as participati ng in both) had a confederate in bo th. Id. a t 813. The court in Jimenez also found the evidence admissible s ince the cri mes were the same, the appellant w

as identified as participati ng in both, th ey occurr ed w ith in a month of each other at dark in the same neighborhood, t he same type g un was used, and the accused shot at his vic tims as they

fled. Jiminez

v. State, 2006 Tex. App. L EXIS 9281 at2 Accordi ng to Texas Rule of Ev idence 403, r elev ant ev idence may be excl uded i f i ts pr obati ve val ue

is substant ial ly

outwei ghed by the dang er of unfa ir prej udice, confusi on of t he issue s, or m isle ad ing the jur y, or by c ons idera tions o f und ue d elay or o f nee dles s pre sen tation o f cum ulative e viden ce. 6 *18. In each instan ce, the evidence may not have been of the ilk to show that the accused and only the accused could have done both. Instead, the si milarities in manner, place, and time were enough to allow the tri al c ourt to reasonab ly infer th at if he committed the extraneousoffense, then he also committed t he crime underl ying hi s current pr osecution. And, the same is t rue here. First, we hav e a c lose proxim ity in t ime b etwee n the two of fen ses; only f our d ays had lapsed. The proximity of locatio n betwee n the two i s also remark able; both drug transactionsoccur red ar ound thesame apartment complex on the 2100 block

of East 4 th Street. So too wer

e the crimes t he same, i.e. a drug sale, and appellant was spied at each by the same police officer. Moreover, both tran sactions occurred within a vehicle controlled by appellant, the buyer and seller were alone during the transaction, the deals
were co mpleted in a ver y short period of time, and the contraband purchas ed was the
same in each insta nce. These simil arities betw een the two c rimes suffice to r ender the extraneousevide nce r eleva nt on the i ssue of id enti ty. Th us, we cannot say the trial court abused its dis cretion in concluding th at the requi rements of Rule 404( b) were satisfied. As for the alleg ation that the r elevance of the ev idence wassubstanti ally outweig hed by its alleged prejudice, we are told to consider four f actors when decidi ng whether the trial court correctly

ruled upon the R ule 403 objecti on. 2 They consist of

assessing 1) whether the evidence compellingly made a fact of consequen ce more or less probable, 2) what the potential was for the evidence to impress the jury in some irrational , yet indel ible, way , 3)7

how much time was

spent devel oping the ev idence, and 4) ho w great was the need for the evidence. Lane v. State , 933 S.W.2d at 520. Assessment of those c riteria her e leads us to no Rule 403 v iolation. First, we agai n note that identi ty was at issue, and t he similari ty between the crimes noted abovedid muc h to id entify appell ant as the deal er in both in stance s. Th us, it can be said that the ev idence in dis pute was suffici ently compel ling to make more probable a fact of consequence. Next, thetrial courtattempted to minim ize the risk of the evidence causing an irrati onal impressi on by restricting thetopics on which the jury could conside r it. Third, while the extraneous offe nse was established through the testim onyof t wo witnesses, they spoke about many other matters and wer e only two o f the seven individuals to testify du ring the guilt/ i nnocence phase of the tr ial. So, a dispropor tionate amount of time was not spent developing the extraneous off ense. Regarding the last criteria, we note that appellant w holeheartedly endeavored to discredit Wilbon, a drug abuser, as part of his t rial str ategy. M oreover, s he was the sole eyewitness to the actual, initial drug trans action. This pr ovided the trial court with r easonable basis to conclude that while the need for the ev idence may not have be en dire , it nonetheless existed. So, in sum, we cannot s ay that t he trial cour t’s decision to overrule the Rule 403 complaint fell outside the zone o f r e asonable disag reement and consti tuted an instance of abused discretion. Having overrul ed each issue of appel lant, we affirm the j udgment of the trial court.

Brian Quinn Chief Justice Publish.