*1 581 established when no confidential informant used). BOSQUEZ, Rolando po Munchrath Specifically,
is told previous drug lice about the existence of v. transactions and the exact amount of Texas, The STATE of State. marijuana that mushrooms and could be now,” apartment “right 02-13-00401-CR, found an he Nos. 02-13-00402-CR. specific apartment identified com Rivas’s Texas, of Appeals Court Flores, plex and unit. See S.W.3d Fort Worth. (indicating that when informant has affairs, familiarity subject and his Sept. 2014.
magistrate reasonably could conclude that Rehearing Overruled Oct. tip regarding illegal informant’s activities was relevant in probable consideration analysis).
cause Munchrath’s statement
regarding the amount of he had apartment
seen in Rivas’s three or four
weeks earlier also tends to indicate that Jones, ongoing operation.
this was an See 860-61; McKissick, S.W.3d Therefore, at 214.
S.W.3d we conclude
that, sniff, excluding dog even
magistrate reasonably could have found the search warrant affidavit estab probable
lished cause.5
III. Conclusion
Having prior opinion reconsidered our
light of Jardines as directed the court
of criminal appeals, we affirm the trial judgment.
court’s conclusion, 5. Based on Tex.RApp. this we do not reach P. 47.1. apply retroactively. whether Jardines should *2 Stickels, Appellant.
John W. for Tanya Dohoney and methamphetamine S. Charles M. Mal- amine. The was found lin, State Texas. panel driver’s door and was later weigh grams. determined to 6.34 The red DAUPHINOT, GARDNER, PANEL: registered truck was to Appellant. Buey GABRIEL, JJ. arrested gave him the re- *3 quired warnings. See Tex.Code Crim. OPINION1
MEMORANDUM 2(a) (West 38.22, § Proc. Ann. art. Supp. GABRIEL, LEE Justice. 2014). Appellant waived right his to re- gave main silent and Buey a written state- Appellant Rolando Bosquez appeals ment in which he claimed that the driver from for possession his convictions of a pulled the white truck pistol out a after possession firearm a felon and of a they disagreed “on who going was first” at controlled substance. We affirm.
a traffic light. Appellant averred that I. BACKGROUND when the driver of the white truck started window, to roll down Appellant his back A. Facts “ducked and shoot Appel- the air.” [sic] During early morning hours of Janu- lant wrote that he “told the officer that 21, 2013, ary Fort Police Officer Worth guy gun” Buey had a when pulled him Benjamin Buey patrol was on he when grand jury over. A Appellant indicted for “pops.” Buey heard two then saw a red (the possession unlawful of a firearm Janu- him, truck and a white truck toward speed case) ary gun possession and for of one with the red following truck the white gram or more but less than four grams of truck. The driver white truck saw (the methamphetamine January Buey and honking waving started and case). See Tex. Health & Safety Code Buey. Buey arms at followed trucks. 481.102(6), (West 2010); §§ Ann. 481.115 over, pulled The driver of the white truck (West § Tex. Penal Code Ann. 46.04 but the red truck Buey continued on. 2011).2 approached the driver of the white truck Buey “guy who told that the in that red 18, 2013, On June while the just truck shot his white two [at truck] case and the drug case were Buey caught up times.” to the red truck pending, Fort Police Officer Worth Antho- pulled and it over. ny Tobar saw a red truck that had a nonworking license-plate light.3 When To- Buey determined that the driver of the truck, stopped bar the red Tobar deter- red truck was Appellant passenger and his mined that the driver was and Happy. Buey was Alicia a gun saw registered that the red truck was in Appel- seat Happy. Buey between and bullets, approached Ap- searched the lant’s name. When Tobar truck and found two holster, spent pellant, he casings, gun bag- coming and four “could smell alcohol gies appearing methamphet- to contain from within the vehicle and from within 1. See P. 47.4. 3.Tobar familiar with was the red truck be- day cause he had seen the same truck before and had determined that the truck's alleged deadly weapon 2. The State that a registration expired. Tobar was unable January drug used or exhibited in the case. however, truck, stop because the driver 42.12, See Tex.Code Crim. Proc. Ann. art. "quickly pulled apartment complex into an (West 2014). 3g(a)(2) Supp. § quickly began exited and to enter a resi- dence.” searching During After of Appellant, breath.” [Appellant’s] why questioned State trial truck, bags several small con- Tobar found was the first time ac- grams methamphetamine taining 20.48 cused the driver of the white truck of the driver’s seat and a and scales under shooting first in the glove residue in the glass pipe with Appellant explained that his written state- grand jury Ap- A indicted compartment. ment included the fact that he “told the with the intent pellant possession gun,” thought officer that he had a more than but less than 200 deliver he had written that the driver of the white (the methamphetamine grams of statement, truck had shot in his first case). Safety See Tex. Health & Buey verbally he had told he had been (West 481.102(6), §§ 481.112 Code Ann. Buey pulled shot at when him over. The 2010). *4 Appellant State asked how' J.P. could have planted in in the his truck the June B. Procedure drug given case Tobar’s saw Appellant driving the red truck on trial, granted Before the trial court the explained June 17. Appellant that when motion to consolidate the State’s 17, Tobar him saw on June he was on his case, case, January drug the and the gun way to J.P.’s to leave the truck. house drug case into one trial. See id. June (West 2010). At the of Appellant’s conclusion testimo- § 481.132 The State also ny, Appellant’s requested counsel that the drug in limine in filed a motion the June video Appellant’s “arrest and interaction any to oral case directed statements made drug Officer Tobar” the June case by they because were self-serv- Appellant be admitted into evidence as a con- ing potentially and inadmissible. See All sistent statement to rebut the State’s fa- State, 146, ridge v. 762 S.W.2d 152-54 brication allegation: “[Appellant] was ex- (Tex.Crim.App.1988) (discussing when self- plaining just picked he the [to Tobar] admissible). declarations are serving This up just car from like [his friend] he told agreed by motion Appellant. jury.” argued The such State January gun drug case and the June evidence was inadmissible because it would case, Appellant filed motions in limine also improperly Appellant’s bolster trial testi- statements, including directed to his his mony hearsay. and constituted See Tex.R. given police statements officers. 613(c), 801(d). Evid. The trial court de- Appellant testified trial and asserted Appellant’s request nied but included the that the driver of the white truck shot at appellate video in the record. See Tex.R. Appellant before Appellant returned fire. During jury Evid. 103. the State’s closing Appellant explained that after the driver argument, prosecutor argued that Ap- him, the white truck shot at handed Happy pellant had “excuse after excuse after ex- pistol he had never seen be- cuse” to explain presence gun gun fore and that he shot the into the air. drugs. prosecutor questioned and the Regarding the June “really whether it [Ap- reasonable that the drugs paraphernalia testified that and pellant] didn’t know and these weren’t his may inadvertently have been left in his drugs” again and stressed that friend, J.P., by truck his who had done written statement in the case 17, mechanical work truck on June nothing contained “about car other 2013, kept the and had truck until June shooting jury Appel- at him.” The found day Appellant. guilty January drug 18—the Tobar arrested lant not
585 However, found guilty consistent statement must be offered to express case and the June rebut an or charge of re- fabrication, (5) cent punishment case and assessed his eight and the prior consis- tent statement years’ confinement fifteen must years’ and con- have been made be- fore finement, alleged respectively. motive to fabricate arose. States,
See Tome v. 150, United 513 U.S. 156-58, 115 700-01, S.Ct. 130 II. DISCUSSION (1995); L.Ed.2d Hammons, appeal, On Appellant raises a sin 804; S.W.3d at Dowthitt v. gle point and asserts that the trial court S.W.2d 263 (Tex.Crim.App.1996). To erred denying to admit the determine whether the video of his discussion with Tobar in the of a witness establishes an implied charge case to rebut the allega State’s fabrication, we consider the totality of tion fabrication. We review a trial the record may and look to such clues as court’s decision to exclude evidence for an dire, statements, voir opening and closing abuse of discretion will not reverse the arguments. Hammons, 239 S.W.3d exercise of that if discretion it is within the at 808. zone of disagreement. reasonable Till We first note that the State man v. *5 Appellant seem to be talking past each Crim.App.2011). occurred, If an abuse we other. The State asserts that the video will not reverse the trial judgment court’s from the June drug case could not be unless the error affected a substantial admitted to rebut the implication State’s of right i.e., of the appellant, the error had a fabrication in the January gun case. Ap substantial injurious effect or influ pellant also seems to argue, at least in ence in determining the jury’s verdict. part, that the video of drug the June case See Walters v. 247 S.W.3d 218- should have been admitted to rebut the 19 (Tex.Crim.App.2007); v. Hammons State’s attack on Appellant’s failure to in 806 (Tex.Crim.App. clude information in his written statement 2007); 44.2(b); see Tex.R.App. also P. in January gun the case. But the video 103(a). Tex.R. Evid. l Appellant’s related to verba statements general, In a prior witness’s made case, to Tobar in the drug June not statement that is consistent with the wit his written Buey statement to in the Janu ness’s trial testimony is inadmissible hear ary gun however, case. Appellant, addi 613(e). say. Tex.R. Evid. A prior consis tionally argues that the video was admissi admissible, however, tent statement is “to ble to rebut the implication State’s rebut express an or implied charge fabricated his testimony about how the against the declarant of recent fabrica drugs in the June drug case could have 801(e)(1)(B). tion.” Tex.R. Evid. To fall been in found his truck—J.P. left them (1) within hearsay this exception, the de- there after fixing Appellant’s truck.4 Ap clarant must testify at trial and be sub pellant’s specific argument appeal is cross-examination, (2) ject to there must that in-car prior “[t]he video contained express be an or charge against statements that Ap were consistent with (3) fabrication, the declarant of recent the pellant’s trial; testimony day statement must be thus, consistent with the de- purpose playing the of this video was (4) testimony, clarant’s in-court prior to demonstrate prior consistent state testified drugs. that he assumed J.P. uses by denying Appellant’s P. abuse its discretion generally ment.” (“The 38.1(f) point of an issue or video. See Tex.R. statement to introduce the every 613(c). covering as subsid will be treated Evid. included.”). fairly is iary that question respectfully with the dis- disagree We at trial that he believed Appellant testified Appellant’s sent’s statement that ... “[i]f truck, drugs in his and the planted J.P. for the' only statement was offered cross-examination had State on ... the words showing planted reiterate that he believed J.P. had spoken during Appellants were earlier ex- drugs drug in his truck in the June changes recently and not officer questioned credibility The State case. trial, then the purposes fabricated Appellant’s explanation during closing hearsay.” statement is not The exhibit not arguments. admitted in this case—the in-car video The record shows that the State did not drug from the June case—does not include or expressly implicitly charge Appellant statement, any prior consistent or other- drug
with recent fabrication in the June wise, case, relating to the case, the State which is the case in which the State raised expressly questioned veracity Appel Indeed, Appellant’s recent fabrication. testimony lant’s trial that the driver of the Buey written statement to white truck shot first based on the lack of gun case admitted into evidence. Appellant’s such a statement written Buey. in the June statement But sufficiently Even if im the State case, imply Appel the State did not plied recent fabrication in the June recently lant had fabricated his case, were Appellant’s statements to Tobar planted that J.P. the truck. made, before had a motive to In the merely the State fabricate. videoed statement questioned Appellant’s credibility, which *6 pulled Appellant was made after Tobar equate charge does not to a of recent drugs Appellant’s over and found truck. 611(b); fabrication. See Tex.R. Evid. Lin Appellant’s pres motive to fabricate was (Tex. State, 764, ney 401 v. S.W.3d 781-82 stop ent at the time of his arrest in the ref'd). 2013, App.-Houston pet. [14th Dist.] drug during June case as well as trial. totality questions of the State’s on See, State, v. e.g., Marshall No. 11-10- regarding cross-examination the June 00057-CR, 2012 at *8 WL merely Appellant’s general case attacked ref'd) 9, 2012, App.-Eastland pet. Feb. credibility and not suggest did that he had (mem. op., designated publication) not recently his story fabricated about J.P. or (“Because appellant had the same motive consciously had altered his testi to lie at the time of his statement to his mony. Linney, See at 781-82. S.W.3d during mother as he did his Hammons, generally See trial, his statement mother 806 (explaining totality of cross-examiner’s night of the incident was not admissible to questions deciding must be considered in fabrication.”); charge rebut a of recent whether an in v. 503-04 and, Johnson S.W.3d by tent the witness to fabricate there ref'd) (“The 2006, pet. by, opened (Tex.App.-Austin the door to the admission of a witness). record shows that Lofton’s motive to fabri by consistent statement .... Because cate arose the summer of 2002 allegation there was no of recent in. fabrication in Because Lofton’s 2003 statement the June the video thus, hearsay; after the motive to fabricate the trial court did not was made arose, it not rehabilitate Lofton and did III. CONCLUSION ”). not .... Because the was- admissible Appellant’s prior consistent statement in support record does not admission of the case was inadmissible hear- Appellant’s prior consistent state video say. Because the trial court did not abuse 801(e)(1)(B), ment under rule it was inad its discretion excluding this hearsay evidence, we overrule hearsay Appellant’s missible evidence. See Tex.R. sole point. We affirm the trial 613(c). court’s Therefore, judg- Evid. the trial court did 43.2(a). ments. See Tex.R.App. P. by denying not abuse its discretion its admission. DAUPHINOT, J., dissenting filed a opinion. if
We further note that even
dissent were correct and the trial court
DAUPHINOT, Justice,
LEE ANN
by excluding
had abused its discretion
dissenting.
video,
compelled
analyze
we would be
Respectfully,
agree
I cannot
with the
any
arising
whether
harm
from the error
majority’s analysis
Appellant’s
sole
Appellant’s
rights.
affected
substantial
point
appeal
or the conclusions that the
44.2(b);
P.
Tex.R. Evid. majority
clearly
reaches. The State
ac-
103(a).
rights
Substantial
are not affected
cused
of recent fabrication of his
by the erroneous exclusion of evidence “if exculpatory testimony. A statement
is
court,
appellate
examining
after
hearsay only if it is offered for the truth of
whole,
record as a
fair
has
assurance that
If,
the matter asserted.1
appears
as it
jury,
error did not influence the
or had
court,
the case now
before this
slight
but a
effect.” Motilla v.
78 prior
only
statement was offered
for the
(Tex.Crim.App.2002).
S.W.3d
purpose of showing, contrary to the State’s
in which
case—the case
position, that the
spoken
words were
dur-
the State charged
Ap
recent
ing Appellant’s
exchanges
earlier
with the
fabrication —
pellant testified that his conduct satisfied
officer and
recently
pur-
fabricated for
every
charged. Ap
trial,
element of the offense
poses of
then the statement
is not
pellant
any
hearsay.2
did not
defensive
If the statement had been ad-
only
mitted
to show that the
issues be submitted in the
words were
charge
court’s
spoken and not for the truth of the matter
for the
In the context
*7
asserted,
presume
would
that the
we
record,
of the entire
from voir dire
would follow the trial court’s proper limit-
through the
charge
trial court’s
to the
ing instruction. Both the State and the
jury, any error in excluding the video did
defense are entitled to
an allegation
rebut
substantially
injuriously
or
affect the
suggestion
or even a
of recent fabrication.3
Thus,
jury’s
disregard
verdict.
we must
any error in the exclusion of the video.
young girl
The Tome court involved a
44.2(b).
P.
living
who was
with her father but wanted
801(d) (" 'Hearsay'
writing
Tex.R. Evid.
is a state-
which is offered
of
ment,
by
other than one made
the declarant
showing what was said rather than for the
testifying
hearing,
while
at the trial or
offered
truth of the matter stated therein does not
prove
in evidence to
the truth
the matter
denied,
hearsay.”),
constitute
cert.
516 U.S.
asserted.”).
(1995).
116 S.Ct.
January stop. getting vehicle, A. I out exchange in June. Yet this is the lant over ma’am, following instructions. at trial: that occurred Q. you So didn’t see her do it? funny you
Q the And it’s [by State]: No, A. ma’am. that the told Officer Tobar never Q. you jury So want this to believe you, at of the white truck shot driver truth, you’re telling the you’re that you? did credible, despite your criminal his- did, Appellant]: A I ma’am. [by tory despite telling them —leav- That’s the first words that came out ing something virtually important my mouth. your out of statement. You want them to believe that out dif- of two witness, May approach I the [State]: dope ferent times your was found in Your Honor? car, that other people planted it? THE Yes. COURT: Yes, A. ma’am. Q. your look at state- Let’s written objected The State that the admitting you I want me in ment. to show video of Appellant’s arrest and interaction you this written statement where with be “improper bolstering” Tobar would say you. that he shot at hearsay. and inadmissible re- A. on the other It’s sheet. sponded that of the in-car Okay. Q. Point it out to me. video allegation was to rebut the of recent says right A. It here. I told the officer prosecutor Ap- fabrication. Both the gun. he had a pellant seem confused about who stopped January; Buey, it was not say Q. you? Does he shot at Tobar. When defense counsel asked Well, gun, A. he had a and that’s what trial court to admit the video of Tobar’s fire came from. Appellant, interaction ex- clearly with he you actually Q. Do admit in here that plained that you shot? throughout the constant theme did, me, he I yes, A. After shot at was, “These are ma’am. we things that haven’t heard before. Q. nothing there’s in here about But You want the to believe this?” shooting you you. him Wouldn’t with that? agree Anywhere. Well, it’s, again, at the time of No, I thought A. I did it there. write explained po- arrest. He himself to the happened This so fast. lice officer. fact, Q. this is the first time we’ve shooting of the other person
heard explaining just He was picked you, right? right? Isn’t that just the car from J.P. up like he told jury. I—I A. No. told the officer that he at me he verbally shot first when agree majority I with the that the exhib- getme
had out the vehicle. actually it offered was connected to Q. put didn’t see I do Happy agree You Alicia offense. *9 ac-
dope your majority car on side that State limited its fabrication to cusations of properly al- The State was
drug case. testimony regarding Appel-
lowed to offer exchanges regarding with Tobar
lant’s oral his truck. And the
the source Appel- to characterize
State was allowed testimony at trial as lies. Defense
lant’s clearly stated that had
counsel thing at the
told Officer Tobar same his arrest. That is a
time of consistent statement
offer right had the have the watch the video that actually in the ex-
showed what he said Tobar,
change with not for the truth of the Tobar for the
statements to but
showing that made the state- required
ments. He was not to sit back accept the State’s characterization of captured
events were video. I believe the trial court
Because reversible error excluding
committed video, I dissent. respectfully Stanley parte
Ex Anozie OBI.
No. 01-12-01003-CR. Texas, Appeals
Court (1st Dist.).
Houston
Sept. 2014.
Discretionary Review Refused
Dec.