                                  NO. 07-06-0190-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  MAY 30, 2008
                         ______________________________

                         JOSEPH M. JOHNSON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2005-410946; HONORABLE JIM BOB DARNELL, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant Joseph Mark Johnson appeals from his conviction by jury of the offense

of possession of cocaine with intent to deliver and his sentence of twenty years

confinement in the Institutional Division of the Texas Department of Criminal Justice. Via

two points of error, appellant contends the trial court erred by admitting evidence of an

extraneous offense and by allowing improper jury argument. We affirm.
                                         Background


       Appellant was indicted for knowingly possessing cocaine, with intent to deliver, in

an amount more than one gram but less than four grams, based on events occurring in

January 2004.1 The indictment also contained an enhancement paragraph, setting forth

appellant’s prior felony conviction for burglary of a habitation.2 Following appellant’s plea

of not guilty, this matter proceeded to trial.


       The State’s evidence described a “buy-walk” operation by which an informant, Oscar

Fira, accompanied an undercover narcotics officer to appellant’s residence. Fira and the

undercover officer testified at trial that the officer remained in his car while Fira approached

the residence, brought appellant to the vehicle and introduced him to the officer, who

completed his purchase of crack cocaine from appellant. Another officer testified he was

part of the “listening team” who monitored the undercover buy. The evidence also included

an audio recording of conversation during the transaction. Fira was paid $150.00 for his

participation in the operation.




       1
         See Tex. Health & Safety Code Ann. § 481.112(c) (Vernon 2001). This is a
second degree felony punishable by imprisonment for any term of not more than 20 years
or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33
(Vernon 2003).
       2
      Appellant’s sentence was enhanced pursuant to Penal Code § 12.42. Tex. Penal
Code Ann. § 12.42 (Vernon 2007).

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       Appellant testified, denying he committed the offense. The jury returned a verdict

of guilty, and the court assessed the punishment we have described. This appeal followed.


                                           Analysis


Admissibility of Evidence Pursuant to Texas Rule of Evidence 404(b)


       In appellant’s first point of error, he argues the trial court erred by allowing the State

to introduce evidence of a similar transaction occurring in September 2003, for which

appellant’s prosecution was then pending.          His trial objection to admission of the

extraneous offense evidence cited Texas Rules of Evidence 404(b) and 403.


       Rule of Evidence 404(b) provides 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, but such evidence may be admissible to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex. R. Evid.

404(b). Merely introducing evidence for a purpose other than character conformity, or any

of the other enumerated purposes in Rule 404(b), does not, by itself, make that evidence

admissible. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). Whether

objected-to evidence of “other crimes, wrongs, or acts” has relevance apart from character

conformity, as required by Texas Rule of Evidence 404(b), is a question for the trial court.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g). An

appellate court owes no less deference to the trial judge in making this judgment than it

affords him in making any other relevancy call; that is, such a decision is reviewed for



                                               3
abuse of discretion. Id. Therefore, as long as the trial court's ruling was within the zone

of reasonable disagreement, we will not intercede. Id.


       After appellant’s testimony, the trial court allowed the State to present evidence that

in September 2003, undercover officers accompanied another informant, Nora Diaz,3 to

appellant’s residence where they completed the purchase of $100 of crack cocaine from

him. When it overruled appellant’s trial objection to admission of the evidence, the trial

court noted its finding the evidence was admissible to show appellant’s intent, knowledge

and identity.4 On appeal, the State primarily argues the evidence was properly admitted

on the issue of appellant’s identity. Appellant contends his identity as the perpetrator of

the offense was not placed at issue, and that the extraneous offense evidence was thus

not relevant to a fact of consequence. We agree with the State.


       During his direct testimony, appellant described the block on which his duplex

residence was located. His description included a reference to a residence near his, in

which a number of people lived. He said 12 to 15 people stayed there and many of them

commonly congregated outside, “all in the parking lot, on the sidewalk, and by the phone

booth [on the corner].” He said there was drug activity, and testified he called the duplex

manager several times to “tell about people selling on the corner.” He further testified

people knocked on his door, seeking drugs, and told of being asked, “Is Mark there?” He

said he once heard a man on the street identify himself as Mark, and referred to others “on


       3
           Diaz testified she was Fira’s wife.
       4
       By instruction, the court limited the jury’s consideration of the evidence to those
purposes.

                                                 4
the street named Mark.” Appellant noted, “but my name is Mark also.” He went on to

testify that “they” were “actually selling drugs in that area,” and that “they” sometimes

waved passing cars down for that purpose.


       The trial court was within its discretion to find appellant’s testimony placed his

identity at issue. See Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996); Smith

v. State, 211 S.W.3d 476, 479 (Tex.App.–Amarillo 2006, no pet). Indeed, it is difficult to

see that appellant’s testimony associating other people named Mark with drug dealing

outside his duplex had any goal other than to suggest that Fira and the officer had bought

their drugs from another Mark. We find no abuse of discretion in the trial court’s conclusion

that admission of evidence of appellant’s sale of cocaine, four months before, from the

same location in the same manner,5 was permissible under Rule 404(b).


Rule 403 Exclusion of Relevant Evidence


       Under Rule of Evidence 403, evidence that is relevant may be excluded if its

probative value is “substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” Tex. R. Evid. 403. When conducting the balancing

test under Rule 403, the trial court determines whether the probative value of the evidence



       5
        Before evidence of an extraneous offense can be used to establish identity, the
extraneous offense “must be so similar to the offense charged that the offenses are
marked as the accused’s handiwork.” Smith, 211 S.W.3d at 479, citing Lane, 933 S.W.2d
at 519. Here, appellant does not deny the two drug transactions were sufficiently similar
to make the September 2003 offense relevant to the issue of the identity of the seller in the
January 2004 transaction.

                                             5
is substantially outweighed by one of the countervailing considerations listed in the rule.

Id. A trial court must balance (1) the inherent probative force of the proffered item of

evidence along with (2) the proponent's need for that evidence against (3) any tendency

of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence

to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the probative force

of the evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or repeat evidence already admitted. Casey v. State, 215

S.W.3d 870, 880 (Tex.Crim.App. 2007).


       Appellant reiterates his contentions identity was not at issue, and the extraneous

offense evidence thus was not directed at a fact of consequence. He also contends the

State had little need for the evidence, noting the prosecutor characterized the case to the

jury as a “simple case.” He also complains that evidence of the 2003 offense took a

considerable amount of time to present to the jury and thus posed the danger of confusing

the issues to be tried. As noted, we find the trial court was within its discretion to find

appellant placed his identity at issue through his testimony, and the extraneous offense

evidence was probative of a fact of consequence.          We see little risk the evidence

suggested to the jury a decision on an improper basis, or confused or distracted the jury.

The trial court’s instruction reduced the risk the jury would make improper use of the

evidence. Presentation of the evidence took some time, but we do not find it inordinate.

The trial court did not abuse its discretion by overruling appellant’s Rule 403 objection. We

overrule appellant’s first issue.


                                             6
Improper Jury Argument


    By his second issue, appellant asserts the prosecutor engaged in improper argument

when she told the jury, “And some people do force 12 people of their community to make

them take responsibility, and today is that day.” Appellant contends the statement was a

negative comment on his exercise of his right to a jury trial. At the same time, appellant

acknowledges he did not object to the prosecutor’s argument at trial, and correctly notes

that binding authority holds that failure to object to jury argument forfeits an appellant’s

complaint on direct appeal. Cockrell v. State, 833 S.W.2d 73, 89 (Tex.Crim.App. 1996),

cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997). See also Threadgill

v. State, 146 S.W.3d 654, 670 (Tex.Crim.App. 2004). Finding appellant’s second point of

error presents nothing for our review, we overrule it, and affirm the judgment of the trial

court.


                                                 James T. Campbell
                                                     Justice




Do not publish.




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