### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00868- CR

Clif ton Eugene Holl oway S heppard, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F LEE CO UNTY, 21ST JUDICI AL DISTRICT NO. 702 8, TH E H ONO RAB LE REVA TOW SLEE CO RB ETT, JUDGE P RESIDING

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

A jury convicted Clifton Eug ene Holloway Sheppard of the offe nse of possession of

a controlled substance, coca ine, in an amount of four g rams or more but less than 200 g rams, within 1,000 fee t of a school. See Tex. Hea lth & S afety Code Ann. §§ 481.115(a) , (d) (West 2010), 481.134(c) (1) (West Supp. 2012). T h e j u ry assessed his punishment, enhanc ed by a prior felony conviction, at confine ment for 25 y ear s in the I nstitut ional Division of the Texas Depa rtment of Criminal J ustice. See Tex. P enal Code Ann. § 12.42(b) ( West S upp. 2012); Tex. Health & Safety Code Ann. § 481.134(c) (1). On appea l, Sheppard challeng es the sufficie ncy of the evid en ce and complains about the e x clusion of evidenc e. We af firm the judg ment of convic tion.

BACK GR OUND The jury hear d evidenc e that on t h e ev en i n g of Marc h 5, 2009, Giddings Police Offic er De re k Gr i ffin initiated a traff ic stop of a pickup truck displaying an expired inspectionsticker. The truck pulled over, stopping within 1,000 fee t of a Luthera n churc h and private churc h school. After parking his patrol car direc tly behind the truck, Offic er Griff in made contac t with the driver, Sheppard, throug h the driver’ s side window and ask ed for his identification. Sheppard provided the office r with a Texas driver’ s license that had expired in 2005. Offic er Griff in then ran

a driver’ s license history and war rant ch ec k throug h dispatch. The computer chec k showed that Sheppard’ s driver’ s license was suspended and reve aled an open arr est war rant for Sheppard for the failure to pay child support. I ntending t o p l ac e S h eppard under arr est, Offic er Griff in asked Sheppard to step out of his truck, instructing him to not have any thing in his hands when he exit ed the vehicle. Sheppard exit ed his truck with a wallet in one hand and a cell phone in the other hand.

At Offic er Griff

in’s direc tion, Sheppard moved to the back of the truck in front of the patrol vehicle. The office r repe atedly asked Sheppard to empty his ha nds so he could place him in handcuf fs. Howeve r, Sheppard ref used to comply with this reque st, but instead questio n ed why Griff in was asking him to do this. To encour ag e compliance with his reque st, Offic er Griff in moved his hand close to his taser and once ag ain asked Sheppard to empty his hands and place them behind his back. At this point, Sheppard ran from b eh i n d the pickup along its passeng er side, acr oss the front of the pickup, toward the driver’ s side, and acr oss the street. Sheppard’ s flig ht path took him p ast an 18-whe eler commerc ial vehicle that was parke d a short distance in front of the picku p . Offic er G riffin immediately pursued Sheppa

rd on foot. Offic er Griff

in’s pursuit of Sheppard continued for a distance of about 500 to 600 fee t from the traff

ic s top location. At one point duri n g t h e ch ase, Sheppard abruptly turned to chang e direc tion and bumped into Offic er Griff in. Sheppard then surre ndere d, raising his hands in the air.

2He then laid fac e down on the g round with his hands benea th his chest. Concerne d with his safe ty , Offic er Griff

in instructed Sheppard to move his hands from beneath his chest and place them behind his back to be handcuf

fed. Sheppard’ s repe ated failure to comply with that instruction prompted the office r to apply

his taser a g ainst Sheppard’ s back twic e. About this time, O ffice r Adam Sheppard arr ived to a ssist Grif fin. The two office rs

succe eded in handcuf

fing Sheppard and returning him to the orig inal traff ic stop location. Sheppard was placed in Officer

Griff in’s patrol vehicle, and the office rs commenced an inventory sear ch of the pickup truck Sheppard had been driving

. During the inventory sear ch, Offic er Sheppard circ led
to the front of the truck to rec ord the license plate number. When he looked down at the front license plate, the office r immediately noticed a small plastic bag g ie on the g round in front of the truck only

a few fee t from the passeng er side front tire. Upon inspection, he discovere d it contained multipl e rocks of an off- colore d white substance, which Offic er Sheppard immediately rec og nized to be cra ck

coca ine. Offic er Sheppard handed this bag g ie and its contents to Offic er Griff in who also rec og nized the contents as cra ck coca ine. Subsequent lab testing reve aled that the bag g ie contained 4.57 g rams of coc aine. The jury found Sheppard g uilty of possession of four g rams or more but less than 200 g rams of co ca i n e within 1,000 fee t of a school. Sheppard pled true to the enhanc ement 1

The indi ctment charg ed S heppar d with possession of a controlled subst ance , coca ine, i n 1 an amount of more than four g ram s b u t l es s than 200 g rams of coca ine, with intent to deliver the controlled subst ance . The indi ctment further allege d t hat S heppar d committed the offense withi n 1,000 fee t of a school. The jury found Sheppard g uilty of the lesser- included offe nse of possession of four g rams or more but less than 200 g rams of coca ine within 1, 000 fee t of a school, without intent to deliver the c ontrolled substance

. 3para g raph of the indictment alleg ing that he had been previously convicted of the felony offe nse of

delivery o f a controlled substance, coca ine, in an amount of four g rams or more but less than 200 g rams. The jury returne d a verdic t assessing Sheppard’ s punishment at confine ment for 25 y ear s in prison. This appeal f

ollowed.

Suf

fi ciency of the Evidence I n his first point of err or, Sheppard complains that th e evidence is insufficient to support h i s co n v i ction for possession of a controlled subst ance . He arg ues t hat t he evidence fails to link him to the coca ine found on the g round in front of his truc k.
Standard of Review Due proce ss require s that the State prove, bey ond a rea sonable doubt, ever y element of the crime char g ed. Jack son v. Virginia , 443 U.S. 307, 313 (1979); Byrd v. State , 336 S.W .3d 242, 246 (Tex. Crim. App. 2011). When revie wing the suffic i en cy o f the evidenc e to support a conviction, we consider all of the evidenc e in the light most favor able to the verdic t to deter mine whether any rational trier of fac t could have fo u n d the essential elements of the offe nse bey ond a

rea sonable doubt. Jack

son , 443 U.S. at 319; Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010). The sufficie ncy of t he evidence is measure d by ref ere nce to the elements of the offe nse as define d by a hy

pothetically corr ect jury char g e for the case . Villarreal v. State , 286 S.W .3d 321, 327 (Tex. Crim. App. 2009).

I n deter mining the sufficie ncy of the evidenc e, we must consider all the evidenc e in the rec ord that the jury was permitted to consider, whet h er d i re ct or circ umstantial, proper ly

4or improperly admitted, or submitt ed by the prosec ution or the defe nse. See Clayton v. State ,

235 S.W .3d 772, 778 (Tex. Crim. App. 2007); Moff v. State , 131 S.W .3d 485, 489–90 (Tex. Crim. App. 2004); Allen v. State , 249 S.W .3d 680, 688–89 (Tex. App.—Austin 2008, no pet.). We revie w all the evidenc e in the lig ht most favorable to the verdic t a nd assume that the trier of fac t resolved conflicts in the testimony , weig hed the e vidence , and dre w reasonable infere nces in a manner that supports the verdic t. Jack son , 443 U.S. at 318; see Laster v. State , 275 S.W .3d 512, 517 (Tex. Crim. App. 2009). A sufficie ncy revie w require s us to defe r to the jury ’s deter minations of the witnesses’

cr ed i b ility and the weig ht to be g iven their testimony

. Brooks , 323 S.W .3d at 899. The j u ry , as exclusive judge of the fac ts, is ent i t l ed t o weig h and resolve conflicts in the evidenc e and draw

rea sonable infere nces there from. Clayton , 235 S.W .3d at 778; see Tex. Co de Crim. Proc. Ann.
art. 38.04 (West 1979). Thus, when fac ed with a rec ord of historical fac ts that supports conflicting infere nces, we must presume that the trier of fac t resolved any such conflicts in favor of the verdic t and defe r to that resolution. Jack son , 443 U.S. at 326; Padilla v. State , 326 S.W .3d 195, 200 (Tex. Crim. Ap p . 2 010). We consider only whether the jury rea ched a rational decision. See Curry v. State , 30 S.W .3d 394, 406 (Tex. Crim. App. 2000).

The standard of revie w on appea l is the same for both direc t and circ umstantial evidenc e case s. Kuciemba v. State , 310 S.W .3d 460, 462 (Tex. Crim. App. 2010). Circumstantial evidenc e is as probative as direc t evidenc e in establishing g uilt and may alone b e s u ff i ci en t to establish g uilt. Hooper v. State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). Every fac t does not need
to point direc tly

and indepe ndently

to the g uilt of the appellant, a s long as the cumulative forc e of all the incriminating circ umstances is sufficie nt to support the conviction. Id. So long as “the

5verdic t is supported by a reasonable infere nce, it is within the province of the fa ctfinder

to choose which infere nce is most rea sonable.” Laster , 275 S.W .3d at 523. As with any q u es t i o n o f ci rcumstantial evidenc e and infere nce, “‘the jurors are fre e to use their common sense and app l y

common knowledg e, observation, and experience g ained in the ordinary aff airs of life when g iving eff ect to the infere nces that may rea sonably be drawn from the evidenc e.’” Boston v. State , 373 S.W .3d 832, 837 (Tex. App.—Austin 2012, pet. filed) (quoting Obigbo v. State , 6 S.W .3d 299, 306 (Tex. App.—Dallas 1999, no pe t.)).
Possession of a Contr olled Substance To support a co n v i cti on for possession of a controlled substance, the State must prove, first, that the defe ndant exercised car e, custody , control, or manag ement over the substance and, sec ond, that he knew the m atter possessed was contraband. Evans v. State , 202 S.W .3d 158, 161 (Tex. Crim. App. 2006); see Tex. Hea lth & Safety Code Ann. § 481.115(a)

. When an acc used is not in ex clusive possession and c ontrol of the place where the contra band is found, it cannot be conclude d or pre sumed that the ac cused ha d knowledg e of a nd control over the contra band unless there are additional i n d ep en d en t fac ts and circ umstances connec ting or linking him to the contra band. Poindexte r v. State , 153 S.W .3d 402, 406 (Tex. Crim. App. 2005); Brown v. State , 9 1 1 S

. W

. 2 d 7 44, 748 (Tex. Crim. App. 1995); Allen , 249 S.W .3d at 690. These links may b e established by circ umstantial evidenc e. Poindexte r , 153 S.W .3d at 405–06; McG oldrick v. State , 682 S.W .2d 573, 578 (Tex. Crim. App. 1985). Whether direc t or circ umstantial, the evidenc e must establish, to the requisite level of confide nce, that the acc used’s connec tion with the contra band was

more than just fortuitous. Poindexte r , 153 S.W .3d at 406; Brown , 911 S.W .2d at 747; Allen , 6249 S.W .3d at 691. Mere prese nce at the l ocation where drug s are found i s insufficient, by itself,

to establish car e, custody , or control of those drug s. Evans , 202 S.W .3d at 162. Howeve r, prese nce and proxi mity when co m b i ned with other evidenc e, direc t or circ umstantial, may be sufficie nt to establish a knowing possession of contra band. Id. Courts have identified rele vant fac tors that may link an acc used to contra band, either singly or in combination, to establish a person’ s possession of contra band. See Evans , 202 S.W .3d 2

at 162 n.12 (citing Olivarez v. State , 171 S.W .3d 283, 291 (Tex. App.—Houston [14t h Dist.] 2005, no pet.)). T reating these fac tors as a r equire d chec klist, Sheppard argues t he evide nce in this ca se is insufficient beca

use more “af

firmative links” are absent from this case than are prese nt. Howeve r, these rele vant fac tors are simply some fac tors that may circ umstantially es t abli sh the leg al sufficie ncy

of the e vidence to prove a knowing possession; they are not a li tmus test. Id. Not all,

or even a cer

tain number , o f t h es e factors must be proved. I t is “not the number of links that is dispositi ve, but rathe r the logic al forc e of all the evidenc e, direc t and circ umstantial.” Id. Moreove r, t he absenc e of some of the fac tors is not evidenc e of innocenc e that must be weig hed ag ainst the

These fac tors include: (1) the defe ndant’ s p re s en ce when a sear ch is conducte d; 2 (2) whether the contra

band was in plain view; (3) the defe ndant’s proxi mity to and the acc essibility of the narc otic; (4) whether the d ef en d an t wa s under the influence of narc otics when arr ested; (5) whether the defe ndant pos sessed oth er co n traba nd or narcotics when arr ested; (6) whether the defe ndant made incriminating statements when arr ested; (7) whether the defe ndant attempt e d to f le e ; (8) whether the defe ndant made furtive g estures; (9) whether there was an odor of contra band; ( 1 0) whether other contra

band or drug para

pherna lia wer e prese nt; (11) whether the de f e n d a n t o wn e d or had the rig ht to possess the place wher e the drug s wer e found; (12) whether the place wher e the drug s wer e found was enclose d; (13) whether the defe ndant was found with a larg e amount of cash; and (14) whether the conduct of the defe ndant indicated a consciousness of g uilt. See Evans v. State , 202 S.W .3d 158, 162 n.12 (Tex. Crim. App. 2006) (citing Olivarez v. State , 171 S.W .3d 283, 291 (Tex. App.—Houston [14t h Dist.] 2005, no pet.)). 7fac to rs t h at are prese nt. Satchell v. State , 321 S.W .3d 127, 134 (Tex. App.—Houston [1st Dist.]

2010, pet. ref

’d); see Hernande

z v. State , 538 S.W .2d 127, 131 (Tex. Crim. App. 1976). Whether sufficie nt fac ts and circ umstances exis t to link or connec t a defe ndant to illega l contra band i s dete rm i n ed on a case -by -ca se basis. See W hitwort h v. State , 808 S.W .2d 566, 569 (Tex. App.—Austin 1991, pet. ref ’d); see also Allen , 249 S.W .3d at 692 n. 1 3 (e x p l ai n ing that aff irmative-link doctrine “is a judicially devised standard to aid appellate courts in deter mining the leg al s ufficie ncy of t he evidence in knowing pos s es s ion of contraband cases” and is not a “litm us test”). There is no set form u l a o f fac ts nece ssary to support an inferenc e of knowing possession. The issue is whether there was evidenc e of circ umstances, in addition to mere prese nce, that would adequately justify the conclusion that the defe ndant k n o wi ng ly possessed the substance. Evans , 202 S.W .3d at 166–67 (Womack, J., concurring ).

I n this c ase, Sheppard exit ed his truck with objects in both of his hands, contra ry to the office r’s instructions. Then, afte r repe ated reque sts, he ref used to put the items down. I nstead, when Offic er Griff

in g estured toward his taser to encour ag e compliance , Sheppard fled on foot. His path of flig ht took him around his truck, up t h e passeng er side, acr oss the front of his truck—the
exact location wher e the coca ine was l at er d i s co v ere d, and acr oss the street. When he ultimately

surre ndere d, he did so by holding up his hands. After Sheppard resisted repe ated order s to place his hands behind his back, he was tased, and the office rs wer e eventua lly able to retrie ve his hands and

secur e him in handcuf

fs. The re co rd ref

lects t hat $600 was removed from his wallet. The recor d does not indi ca t e wh er e Sheppard’ s wallet was rec overe d or whether Sheppard’ s phone was

rec overe d, though it sug g ests that these items wer e not in his hands when he surre ndere d.

8Sheppard’ s response of flee ing from Offic er Griff in g ives rise to multipl e, rea sonably equal, plausible infere nces: that he did not want to be tased, that he did not want to be arr ested—on the outstanding arr est war rant or for driving with a suspended driver’ s license, or that he wanted the opportunity to dispose of drug s he had con ce al ed in his hand. Although the parties may disag ree about the logic al infere nces that flow from undisputed fac ts, “[w]here there are two p er m i s s ible views of the evidenc e, the fac t finder’ s choice betwee n them cannot be clea rly err oneous.” Evans , 202 S.W .3d at 164 (citing Anderson v. City of Bessem er , 470 U.S. 564, 5 7 4 (1985))

. I n such a situation, it is clea

rly the jury that makes the choice of which infere nce to acc ept. Id. I t is the jury , not the revie wing court, that chooses betwee n alterna te rea sonable infere nces to be draw n from the evidenc e. Id. at 165. The trier of fac t is the exclusive judg e of the cre dibilit y of the witnesses and the weight g iven to their testimony in deter mining whether the evidenc e shows a sufficie nt link betwee n the defe ndant and the contra band. Poindexte r , 153 S.W .3d at 406; see Hall v. State , 86 S.W .3d 235, 241 (Tex. A pp.—Austin 2002, pe t. r ef’ d) (trier of fac t de termines whether fac tors prese nted at trial c ombine to form link betwee n acc used and c ontraba nd). Viewing all the evidenc e in the light most favor able to the State, the logic al forc e of the combined piece s of circ umstantia l e v id e n c e in th is case , toge ther with rea sonable infere nces from them, could lead a rational jury to d et er m i n e that Sheppard exercised car e, custody , control, or manag ement of the coca ine found on the g round in f ront of his truc k and that he knew the coc aine

was contra

band. See Evans , 202 S.W .3d at 162. Acc ording ly , the evidenc e was sufficie nt to support Sheppard’ s conviction for possession of a controlled substance. See Jack son , 443 U.S. at 318–19; see also Hooper , 214 S.W .3d at 13. We overr ule his first point of err or.

9Exclusion of E vidence Sheppard’ s rema ining two points of err or relate to the trial co u rt ’s exclusion of evidenc e. I n his second point of err or, Sheppard contends the trial court err ed by ref using to allow him to offe r evidence that his re l at i v e died whil e in custody

. I n his third point of error, Sheppard

asser ts that the trial court e rre d in excluding evidenc e of the arr esting office r’s prior drugarr est. Standard of Review We revie w a trial court’s ruling on the admission or exclusion o f ev i d ence for an abuse of discretion. Till man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011). A trial cour t abuses its discretion only if its decision “lies outside the zone of rea sonable disag ree ment.” Martinez

v. S t a t e , 3 27 S.W .3d 727, 736 (Tex. Crim. App. 2010), cert. denied , 131 S.Ct

. 2966 (2011 ); Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’ g ). We consider the ruling in light of what was befor e the trial court at the time the ruling was made and u p h o l d the trial court’s decision if it lies within the zone of rea sonable disag ree ment. Bill o deau v. State , 277 S.W .3d 34, 39 (Tex. Crim. App. 2009).
Death of Relative in Custody At trial, Sheppard attempted to offe r evidenc e about the death of his relative in 2002 while in the county jail in the custody of the Giddings Police Depa rtment. Sheppard wanted to prese nt evidenc e that he beca me “emotionally distraug ht” when informed about his relative’s death throug h the testimony of the office r who told him about the death. He argued that this evidenc e was rele vant to demonstrate his fea r of law enfor ceme nt and explain his flig ht from Offic er Griff in. The

10State objected, arguing the evidenc e was not rele vant and that it was more prejudicia l than probative.

On appea l, Sheppa

rd argues that the evidenc e of his re lative’s dea th would have pr ovided the jury with a re ason, other tha

n his guilt, for his flig ht f rom Offic er Griff

in. Thus, he maintains, the trial
court e rre d in excluding this evidence

.

To be rele vant, evidenc e must be materia l and probative. Miller v. State , 36 S.W .3d 503, 507 (Tex. Crim. App. 2001); see Tex. R. Evid. 401. Evidence is materia l if it is “shown to be addre ssed to the proof of a materia l propo s i t i on, i.e., any fac t that is of conseque nce to the deter mination of the action.” Miller , 36 S.W .3d at 507 (quoting Steven Goode, et al., Texas Practice Guide to the T

exas Rules of Evidenc e: Civil and Criminal § 401.1 (2d ed. 1993 & Supp. 1995)). Evidence is probative if it tends to make the exis tence of the fac t more or less probable than it would be without the evidenc e. Id. Thus, the proff ere d evidenc e is rele vant if it has b ee n s h o wn to be materia l t o a fa ct in issue and if it makes that fac t more probable than it would be without the evidenc e. Id. “[E] vidence mere ly tending to aff ect the probability of the truth or falsity of a fac t in issue is logic ally rele vant.” Mendiola v. State , 21 S.W .3d 282, 284 (Tex. Crim. App. 2000) (quoting Montgomery v. State , 810 S.W .2d 372, 376 (Tex. Crim. App. 1990)). The evidenc e need not by itself prove or disprove a particula r fac t to be rele vant; it is sufficie nt if the evidenc e provides a small nudg e toward proving or disproving some fac t of conseque nce. Stewart v. State , 129 S.W .3d 93, 96 (T ex . Crim. App. 2004). I n deter mining whether evidence is rele vant, courts should exam i n e t h e purpose for which the evidenc e is being i n t ro d u ce d

. Layton v. State , 280 S.W .3d 235, 240 (Tex. Crim. App. 2009). “It is critica l that there is a direc t or logic al connec tion betwee n t he actua l

11evidenc e and the proposition soug ht to be proved.” Id. Evidence that is not rele vant is not

admissible. Tex. R. Evid. 402; see also Tienda v. State , 358 S.W .3d 633, 638 (Tex. C ri m. App. 2012) (“A bedroc k condition of admissibili ty of evidenc e in a ny leg al contest is its rele vance to an issue in the case —that is to say , its tendenc y to make a fac t of conseque nce to deter mination of the action more or less proba ble.”)

. I n this case , Sheppard failed to show how the excluded evidenc e about his relative’s death was rele vant to any fac t of conseque nce in this case . He offe red the ev i d ence to show his purported fea

r of law enfor ceme nt and explain his flig ht from Of fi cer Griff

in. Howeve r, the p r o f f e r e d evidenc e mere ly demonstrated that his relative died while he was incar cer ated in the county jail in the custody of the Giddings Police Depa rtment. Sheppard offe red no evidenc e that the death resulted f rom any actions or wr ong doing by law enf orce ment officia ls, certa inly not the actions of the police office rs involved in this case as neither office r was employ ed by the Giddings Police Depa rtment at the time of the relative’s death. I n fac t, the rec ord contains evidenc e that, afte r being

arr ested for disorderly conduct, Sheppard’ s relative died from a drug overdose

. There is no logic al

connec tion betwee n the actua l evidenc e offe red and the proposition soug ht to be proved. Thus, the trial court c ould rea sonably deter mine that the proff

ere d evidenc e wa s not releva nt. Rely ing on Martin v. State , Sheppard maintains that beca use the court excluded the evidenc e of his relative’s death, “it cannot be said ‘eve ry rea sonable hy pothesis, other than g uilt of
t h e acc used, has been excluded.’” See Martin v. State , 753 S.W .2d 384, 387 (Tex. C ri m . Ap p . 1988). Howeve r, it is not incumbent upon the State to exclude “eve ry rea sonable hy pothesis othe r

12than guilt” for the evidenc e to be considered s u fficient. Gee sa v. Stat e , 820 S.W .2d 154, 157-61 3 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State , 28 S.W .3d 570, 571 (Tex. Crim. App. 2000).

Sheppard also asser

ts in this point of err or that the State’s failure to provide him with

a copy of the autopsy re p o rt of the relative violated Brady v. Maryland , 373 U.S. 83 (1963) (establishing that due proce ss require s prosec utors to disclose materia l, exculpatory evidenc e to defe ndants). He argues that the autopsy repor t “provide s a rational mo t i v e for the flig ht of Appellant, i.e., fea

r of mistreatment by the Giddings Police Depa rtment.” The autopsy repor t itself is not contained in the rec ord. Howeve r, as noted previously , the rec ord indicates that the autopsy repor t ref lected that S h eppar d’s rela tive died from a drug overdose —not mistreatment by law enfor ceme nt officia ls

. Due proce ss require s the prosec ution to disclose exculpatory and impeachme nt evidenc e to the defe nse that is materia l to either g uilt or punishment. Ex parte Ree d , 271 S.W .3d 698, 726 (Tex. Crim. App. 2008); see Brady , 373 U.S. at 87; United States v. Bagley , 4 7 3 U.S

. 667, 676 (1985). “Exculpatory evidenc e is that which may justify , excuse, or clea r the defe ndant from alleg ed g uilt, wher eas impeachme nt evidenc e is that which disputes, disparag es, denies, or contra dicts other evidence .” Pena v. S t a t e , 3 5 3 S.W .3d 797, 811–12 (Tex. Crim. App. 2011); Harm v. State , 183 S.W .3d 403, 408 (Tex. Crim. App. 2 006). Contrary to Sheppard’ s

asser tion, the autopsy repor

t indicating that his relative died from a drug overdose while in custody

I n Gee sa v. State , the T ex as C o u rt of Criminal Appea ls expressly disavowed the 3 “re asonable hy

pothesis analy

tical construct” for leg al sufficie ncy revie ws. See Gee sa v. State , 820 S.W .2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State , 28 S.W .3d 570 (Tex. Crim. App. 2000). 13is neither exculpatory nor impeachme nt evidenc e. Thus, the failure to provide a copy of the repor t to Sheppard did not constitute a Bradyviolation.

We hold t h at the trial court did not abuse its discretion in excluding the evidenc e

conce rning the death of Sheppard’ s relative from a drug overdose while in custody

. We overr ule Sheppard’ s second point of e rror . Officer’s Prior Drug Arrest

During cross-e x amination of Offic er Griff in, Sheppa

rd soug ht to ask the office r “if he had ever been arr ested for a drug offe nse.” The rec ord ref lects that the office r was arr ested and subsequently

place d on defe rre d adjudication probation for 180 day s for the misdemea nor off ense of possession of less than two ounces of marijuana —seven y ear s befor e beg inning his car eer in law enfor ceme nt and 16 y ear s befor e testify ing at trial. Sheppard argued at trial that Offic er Griff in was “portra y ing himself as . . . a follower of the law and an enfor cer of the law” so he was entitled to ask the office r about his prior drug arr est. The State objected pursuant to Rule 609 of the Texas Rules of Evidenc e. As a g en er al rul e, specific acts of misconduct may not be introduced to impeach a party or a witness. See Prescott v. State , 744 S.W .2d 128, 130 (Tex

. C ri m . App. 1988); Tex. R. Evid. 609(a) (provid i n g t h at evidenc e that witness has been convicted of crime is admissible to attack witness’s cre dibilit y if crime was felony or involved moral turpitude and court deter mines that probative value of evidenc e outweig hs its prejudicia l eff ect) ; see also Tex. R. Evid. 60 8 (b ). An exception exis ts when a witness m ak es statements during direc t examination conce rning his past conduct that sug g est he has never been arr ested, char g ed, or convicted of any offe nse. Delk v. State , 14855 S

. W

. 2 d 7 0 0 , 704 (Tex. Crim. App. 1993), overruled on other grounds by Ex parte Moreno ,

245 S.W .3d 419, 425 (Tex. Crim. App. 2008); P r es co t t , 744 S.W .2d at 131; Caldwell v. State , 356 S.W .3d 42, 50 (Tex. App.—Texarkana 2011, no pet.). Where a witness “cr eate s a false impression of law ab i d ing behavior , ‘he opens the door’ on his otherwise irrele vant past criminal history and opposing counsel may expose the falsehood.” Delk, 855 S.W .2d at 704; see W inegarner

v. State , 235 S.W .3d 787, 790 (Tex. Crim. App. 2007) (re iterating that when witness, on direc t examination, makes blanket asser tion of fac t and there by leave s false impression with respe ct to prior criminal behavior or ex t en t o f prior troubles with the law, witness “opens the door” to otherwise irrele vant past criminal history and opposing co u n s el may impeach him by exposi ng falsehood)

. This exception is not limit ed to final convictions. See Prescott , 744 S.W .2d at 130–31.

Sheppard’ s theory is that Offic er Griff in opened the door by g iving a false impression

wh en he responde d to defe nse counsel’s questions about the stereoty pical drug deale r, indicating that h e h ad n o persona l knowledg e about drug deale rs or drug users. During cross-e x amination, th e following exchang e occ urre d:
Q. Offic er Griff

in, how many people would y ou say y ou have arr ested that y ou believe w ere deale rs? A. Icouldn’t say

a number . I

couldn’t g ive a spe cific numbe r. Q. Okay . I s there is a stereoty pical dea ler? A. What do y ou mean by stereoty pical? Q. Does a

ty pical dea ler have to borrow a vehic le to drive a

round in? A. Icouldn’t say . Idon’t know people ’s per sonal situation.

15Q. Does a ty pical dea ler wor

k somewher e? A. Icouldn’t say

. Q. Does a

ty pical dea ler have money ? A. Icouldn’t say

that either. Q. Does a

ty pical dea ler pa

y child support? A. Icouldn’t say

. Q. You formed any opinion about these people y ou’ve dealt with all these y ear s? A. No, I

haven’ t. Sheppard maintains that with this testimony , the office r “sa[id] his past involvement with crime was non-existent.” Although he acknow ledg es that Rule 609 limit s i mpeac hment with prior criminal his t o ry t o certain convictions, Sheppard never theless argues that pursuant to the false- impression exception describe d above, he was e ntitled to ask the office r about his drugarr est. We disag ree .

First, this testimony came not during the office r’s direc t examination, but thr o u gh

cross-e x amination by defe nse cou n s el

. T he false- impression exception to the g ener al rule of inadmissibil ity does not per m i t o p p o sing counsel to rely on his own interrog ation during

cross-e x amination to contra dict the witness and then admit evidenc e o f co llatera l matters which would otherwise be inadmissible. Cf. W heele r v. State , 67 S.W .3d 879, 885 (Tex. Crim. App. 2002) (“A s a g ener al rule, the defe nsive theory that the State wishes to rebut throug h the use of extraneous offe nse evide nce must be elicited on dir ect e x amination by the def ense a nd may not be elicited by ‘prompting or maneuve ring ’ by the State.”); Lopez v. State , 928 S.W .2d 528, 531 (Tex. Crim. App. 1996) (impeachment to cor rec t false impression can only be done when defenda nt has vol untarily

16testi fi ed to collater al m atter) ; Shipman v. Stat e , 604 S.W .2d 182, 184–85 (Tex. Crim. App. 1980)

(State “may not rely on its own questioning” to g et into collater al matters, extraneous offe nses, and bad ac ts that “would otherwise be inadmissible”); see also Hall v. State , 161 S.W .3d 142, 156–57 (Tex. App.—Texarkana 2005, pet. ref ’d); Crenshaw v. S t a t e , 125 S.W .3d 651, 656 (Tex. App.—Houston [1st Dist.] 2003, pet. ref ’d). Simpl y put, a party m ay n o t b o o tstrap its way to impeachme nt as Sheppard attempted to do here

.

Second, in order for the false impression exception t o ap p l y , the witness must unambig uously cre ate a

false impre ssion of law-a biding behavior , there by permitting introduction of ev i d en ce of past criminal history

. See Delk, 855 S.W .2d at 704–05; Hernande z v. State , 351 S.W .3d 156, 159 (Tex. App.—Texarkana 2011, pet. ref ’d). Her e, the testimony about the stereoty pical drug dealer does not cre ate a n unambig uous false impre ssion about Office r Grif fin’s criminal history or law-a

biding behavior

. I t is clea r from the context that these questions wer e about the char ac t er i s t i cs o f a drug deale r based on the office r’s experience with drug deale rs as a law enfor ceme nt office r. They wer e not questions rela ted to his persona l experience or conduct prior to his law enfor ceme nt car eer or conc erninghis own criminal history . His answer s about hi s lack of persona l knowledg e of dr ug deale rs did not cre ate a false impre ssion about his criminal history

. At no time during direc t examination did Offic er Griff i n m ake any statements

conce rning his past conduct that sug g ested he had never been arr ested, char g ed, or convicted of any offe nse nor did he cre ate a false impression of law abiding behavior

. Acc ording ly , we hold that the trial court did not abuse its discretion in excluding the evidenc e conce rning the office r’s prior drug

arr est. We overr

ule Sheppar d’s third point of err or.

17CONCLUSION Having found that the circ umstantial evide n ce is sufficie nt for a rational jury to conclude that Sheppard possessed the cocaine recove red f rom the g round in front of his truck, we hold the evidence is sufficie nt to support his convict i o n for possession of a controlled subst ance . We further hold that the trial court did not abuse its discretion in excluding evidenc e of the death of Sheppard’ s relative while in custody or the arr esti n g office r’s prior drug arr est. Acc ording ly , we aff irm the judg ment of convic tion.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Henson a nd Goodwin Affir med Filed: De cembe r 21, 2012 Do Not Publish

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