Opinion filed January 29, 2010




                                                       In The


   Eleventh Court of Appeals
                                                      __________

                                              No. 11-08-00186-CR
                                                   ________

                                  ANTONIO B. RASCON, Appellant

                                                         V.

                                      STATE OF TEXAS, Appellee


                                   On Appeal from the 50th District Court

                                                Knox County, Texas

                                           Trial Court Cause No. 3806


                                   MEMORANDUM OPINION
       Antonio B. Rascon appeals his conviction by a jury of the offense of possession of more than
50 pounds but 2,000 pounds or less of marihuana. The jury assessed his punishment at sixteen years
in the Texas Department of Criminal Justice, Institutional Division. He contends in six points of
error that (1) the State committed reversible error by commenting on his post-Miranda1 silence, in
violation of his right under the Fifth Amendment of the United States Constitution that prohibits the
State from commenting on his right to remain silent during his trial; (2) the State violated Brady v.




       1
           Miranda v. Arizona, 384 U.S. 436 (1966).
Maryland2 by failing to disclose to his defense prior to trial that the State had already committed
itself to dismissing the marihuana possession charge facing his codefendant, Enrique Villegas;
(3) the trial court erred by allowing the State to introduce, at the guilt/innocence phase of his trial,
evidence that he had previously been arrested for a federal offense involving trafficking in
methamphetamines, under the flawed theory that the State needed the evidence to establish the
offense element of identity; (4) the trial court erred in admitting several pages of testimony relating
to his post-arrest interrogation by Texas Department of Public Safety Sergeant Bennett; (5) the trial
court erred in admitting into evidence several paragraphs of Sergeant Bennett’s written report of the
offense; and (6) the evidence is legally insufficient to support his conviction. We affirm.
         Rascon contends in Point Six that the evidence is legally insufficient to support his
conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all
of the evidence in the light most favorable to the verdict and determines whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App.
2009).
         Five hundred forty-one pounds of marihuana were found inside the trunks of new cars that
were being transported by Rascon, aided by a driver he had hired. The driver with Rascon confirmed
that the marihuana was Rascon’s. There was evidence that an unknown caller had phoned Rascon
telling him to leave his truck unattended at a truck stop for four hours, to drive to Oklahoma City,
and to wait for another call. Rascon concedes that the evidence is legally sufficient if all of the
evidence is considered but contends that this court should not include certain evidence, evidence he
says is hearsay or evidence that should have been excluded based upon TEX . CODE CRIM . PROC.
ANN . art. 38.22, § 3(a) (Vernon 2005), in our consideration of his claim that the evidence is legally
insufficient. In determining whether the evidence is legally sufficient to support a conviction, we
consider all of the evidence admitted, including any evidence that has been improperly admitted.
Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). We overrule Point Six.
         Rascon urges in Point One that the State committed reversible error by commenting on his
post-Miranda silence, in violation of his Fifth Amendment right to remain silent during his criminal
trial. After receiving a Miranda warning, Rascon agreed to talk to Sergeant Anthony Roland Bennett


         2
             Brady v. Maryland, 373 U.S. 83 (1963).

                                                      2
of the Texas Department of Public Safety Narcotics Service. Sergeant Bennett testified that Rascon
told him he had agreed with certain other persons who had contacted him by telephone to leave his
truck unattended at a large truck stop for four hours before delivering the new cars. He indicated that
Rascon could not recall who had made those phone calls. Sergeant Bennett later indicated that, when
Rascon would not disclose any further as to who “these people” were, the interview was terminated.
At that point, counsel for Rascon objected, urging that the district attorney had tried to intentionally
interject in front of the jury “post-Mirandized silence,” which he contended was inadmissible and
improper. The trial court overruled the objection. We hold that, in view of Sergeant Bennett’s
previous testimony that Rascon could not recall who the individuals were who had made the phone
calls, his comment that Rascon would not disclose any further as to who “these people” were was
a comment that Rascon never varied from his original statement, not a comment on Rascon’s silence.
Rascon was never shown to have refused to answer a question as to who the individuals were but
had stated that he could not recall who they were. Because there is no showing that Rascon failed
to answer any question that Sergeant Bennett asked, the trial court could have reasonably determined
that Sergeant Bennett’s testimony did not relate to any “post-Mirandized silence.”
       In support of this point, Rascon relies upon the opinions in Fletcher v. Weir, 455 U.S. 603,
607 (1982); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); and Doyle v. Ohio, 426
U.S. 610, 619 (1976). We find all of these cases to be distinguishable because in each case there was
a reference to the defendant being silent as to certain matters after having received a Miranda
warning. Fletcher, 455 U.S. at 603-04; Dinkins, 894 S.W.2d at 355-56; Doyle, 426 U.S. at 613-14.
We overrule Point One.
       Rascon insists in Point Two that the State violated Brady v. Maryland by failing to disclose
to him prior to trial that the State had already committed itself to dismissing the marihuana
possession charge facing his codefendant, Enrique Villegas. Villegas testified at trial that he did not
have any kind of deal with the district attorney in return for his testimony. He subsequently testified
that he did not know the drugs were in the trunks of the cars and that they were Rascon’s drugs.
When counsel for Rascon sought to ask Villegas what he thought his testimony would do for his
pending case, the district attorney objected, noting that Villegas had already answered that he had
no deal. During final argument, the district attorney stated, after noting his belief that Villegas
probably did not know “anything about it,” that: “We really have made a decision not to continue
prosecuting that particular case, but to prosecute Rascon because all of the -- all of the culpability

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appeared to fall on his shoulders. He owned the truck. He did the suspicious behavior. He made
the statements that were incriminating.” There is nothing preserved in the record as to when the
prosecutor made this decision. That being the case, in order to show that the State had suppressed
the idea that it had made such a decision prior to trial or prior to Villegas’s testimony, it would be
necessary to adduce facts not in the record. Rule 21.2 of the Texas Rules of Appellate Procedure
provides that a motion for new trial is a prerequisite to presenting a point of error on appeal only
when necessary to adduce facts not in the record. TEX . R. APP . P. 21.2. Since this is a case where,
in order to establish his contention with respect to the Brady complaint, it would be necessary to
adduce facts not in the record, a motion for new trial is a prerequisite to presenting this point of error
on appeal. Nothing relating to such a claim is presented in Rascon’s motion for new trial, and there
is no record of any hearing having been held on his motion. We, therefore, overrule Point Two.
        Rascon argues in Point Three that the trial court erred by allowing the State to introduce
evidence at the guilt/innocence phase of the trial that he had previously been arrested for a federal
offense involving trafficking in methamphetamines in order to establish his identity. Brody Joe
Moore testified that he was a trooper with the Texas Department of Public Safety. He indicated that
Rascon was the codriver of a truck he stopped following a traffic violation. He said that Rascon
identified himself as Antonio Rascon with a date of birth of June 13, 1960, but that he had no
driver’s license or other identification. He related that Rascon told him he had no prior criminal
history other than traffic tickets. During a voir dire hearing outside the jury’s presence, Trooper
Moore indicated that, in checking for identification, he was able to establish that there was a
California driver’s license in the name of Antonio Rascon from Riverside, California, and that he
was able to confirm that the address on the driver’s license was that of Rascon (the defendant in this
case). He indicated that he had learned Rascon was being truthful as to who he was.
        Following the voir dire hearing, Trooper Moore testified that, in checking Rascon’s identity,
he learned from “NCIC” that Rascon had been arrested in 2000 for a federal offense of transporting
methamphetamine in Minnesota. During the voir dire hearing, counsel for Rascon objected to this
testimony on the basis that it was hearsay, that it denied him his right of confrontation under the
Sixth Amendment of the United States Constitution, that it was not relevant, and that any probative
value of the evidence was substantially outweighed by the prejudicial nature of the testimony. The
State asserted that it was not offering the evidence for its truth but as evidence of Rascon’s identity.



                                                    4
       At the time of trial, Rascon’s identity was no longer an issue. As noted in Trooper Moore’s
testimony, Rascon’s identity had been established by the discovery that he had a California driver’s
license and that he had given his correct name and date of birth to Trooper Moore at the time he was
stopped. As we have noted, the State represented at trial that the evidence of Rascon’s arrest for
transporting methamphetamine in Minnesota was not hearsay because it was not offered for the truth
of the matter asserted and because it was admissible to show identity.
       On appeal, the State makes no argument that evidence of Rascon’s arrest was admissible to
show identity but, instead, argues that it was admissible to show Rascon’s intent and knowledge
regarding the presence of marihuana in his truck, which it contends is permitted by Rule 404(b) of
the Texas Rules of Evidence. TEX . R. EVID . 404(b). Absent its admission for the truth of the matter
asserted, evidence of Rascon’s arrest for the transport of methamphetamine has no relevance to the
issue of Rascon’s intent and knowledge regarding the presence of marihuana in his truck. If it was
admitted for the truth of the matter asserted, the State has offered no argument for why it would not
be hearsay and has not suggested an exception to the hearsay rule that would justify the admission
of the extraneous arrest.
       We also note that any relevance of evidence showing an arrest eight years prior to trial for
transporting methamphetamine, as opposed to evidence that Rascon had transported
methamphetamine or been convicted of that offense, is relatively slight with respect to showing
Rascon’s knowledge that there was marihuana in the truck he was driving on this occasion. On the
other hand, a showing that Rascon had previously been arrested for transporting methamphetamine
was highly prejudicial. We conclude, therefore, that any relevance of Rascon’s prior arrest was
substantially outweighed by the danger of unfair prejudice. Because we conclude that the evidence
of Rascon’s prior arrest was inadmissible, we hold that the trial court abused its discretion by
overruling Rascon’s objections and admitting the testimony into evidence.
       The testimonial statements of witnesses absent from trial are admissible over a Sixth
Amendment Confrontation Clause objection only when the declarant is unavailable and the
defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541
U.S. 36, 68 (2004); Campos v. State, 256 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d). Because the “NCIC” record contained a routine, sterile recitation of an objective fact,
it is nontestimonial within the meaning of Crawford. Campos, 256 S.W.3d at 762-63. Because the



                                                 5
record in question is nontestimonial, its admission does not constitute a violation of Rascon’s rights
under the Confrontation Clause of the Sixth Amendment of the United States Constitution.
       As we have noted, the State makes no argument on appeal as to why the evidence was not
hearsay or why its probative value was not substantially outweighed by the danger of unfair
prejudice. Where, as here, any error was nonconstitutional error, we must disregard any other error,
defect, irregularity, or variance that does not affect substantial rights. TEX . R. APP . P. 44.2(b). A
substantial right is affected when the error (1) had a substantial and injurious effect or influence in
determining the jury’s verdict or (2) leaves grave doubt as to whether it had such an effect.
O’Neal v. McAninch, 513 U.S. 432, 436-37 (1995); King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997).
       There was evidence that Rascon owned and was in control of the truck where the marihuana
was found. Although the bill of lading reflected that he was due to take the truck to Fort Worth, he
said he was going to Oklahoma City. He admitted to being told by someone to leave his truck for
four hours unattended at a busy El Paso truck stop and then take the truck to Oklahoma City.
Villegas testified that the drugs were Rascon’s, indicating that Rascon told him after they were
arrested, “This is not your problem. It is my problem. Nothing will happen to you.”
       The court’s charge instructed the jury that evidence of an extraneous offense was admitted
only for the purpose of establishing the defendant’s identity. The charge stated that the jury could
not consider the testimony unless it found and believed beyond a reasonable doubt that Rascon
committed the extraneous offense. Inasmuch as no evidence was admitted from which a reasonable
jury could have determined that Rascon committed the offense of transporting methamphetamine
in Minnesota, the jury, under the instruction, was not authorized to consider evidence of the arrest.
       Nevertheless, the district attorney, in final argument, stated that Rascon had been arrested for
trafficking methamphetamine in Minnesota, which he noted was a federal offense. Shortly
thereafter, he stated, in an improvised quote from Trooper Moore, “Well, man, this guy, he doesn’t
have any I.D., he’s been convicted on a drug offense by the federal government.” Inasmuch as there
was no evidence that Rascon had been convicted of the offense of transporting methamphetamine,
the trial court sustained the objection to the assertion that Rascon had been convicted of the offense
and instructed the jury to disregard it. The trial court overruled objections to the reference to
Rascon’s arrest for the offense and denied motions for mistrial.



                                                  6
       Evidence was presented at the punishment hearing showing that Rascon had indeed been
previously convicted in a Minnesota federal court of the offense of interstate travel in aid of unlawful
activity. The district attorney argued, without objection, that the conviction was drug related. Based
on the complete record, we find that the admission of the arrest did not affect any of Rascon’s
substantial rights. We overrule Point Three.
       Rascon submits in Point Four that the trial court erred in admitting several pages of testimony
relating to Sergeant Bennett’s post-arrest interrogation of Rascon. Sergeant Bennett testified at
length as to statements made to him by Rascon after Rascon had been given his Miranda rights.
Such statements of an accused made as a result of custodial interrogation ordinarily are not
admissible against the accused in a criminal proceeding unless an electronic recording is made of
the statement and the accused has, during the recording, been appropriately warned.                 See
Article 38.22, section 3(a). This general rule does not apply to a statement that contains assertions
of facts or circumstances that are found to be true and that conduce to establish the guilt of the
accused, such as the finding of secreted or stolen property or the instrument with which the accused
states the crime was committed. Article 38.22, section 3(c). The record reflects that Rascon’s
statements to Sergeant Bennett were not recorded. We are not aware of any statement made by
Rascon that was found to be true and conduced to establish his guilt of the offense.
       The State relies upon two statements made by Rascon. First, the State relies upon Rascon’s
statement that he left his truck in El Paso for four hours under an instruction from an unknown
person and was then instructed to drive the truck to Oklahoma City. The State notes that Sergeant
Bennett’s interview with Rascon led to the discovery of the fuel bill in El Paso, confirming that the
truck stopped in El Paso. We note first that there is some question in the record as to whether
Sergeant Bennett testified that the interview led to the discovery of the fuel bill. Sergeant Bennett
was asked by the district attorney, “Well, is there a diesel bill from a Petro station in El Paso where
they fueled up that you gathered as part of your investigation?” Sergeant Bennett replied, “Right.
There was a Petro, but I don’t have access to that information right now.” We construe this answer
to be an affirmation that there was a Petro truck stop involved but not as an affirmative answer to
the question as to whether he had acquired a diesel bill from a Petro station. Even if he had acquired
such a bill, the best such a bill would have established was that Rascon’s statement that he had
stopped for fuel at El Paso was true, a statement that did not conduce to establish his guilt because,



                                                   7
insofar as we know, evidence that he stopped for gas in El Paso was not suspicious and was not
incriminating.
        The second statement relied upon by the State was Rascon’s statement to Sergeant Bennett
that he did not have a commercial driver’s license. When Sergeant Bennett was asked if Rascon had
a commercial driver’s license, he replied that Rascon did not. Since Rascon did not have any
driver’s license in his possession, it is unclear whether Rascon told Sergeant Bennett that he did not
have a commercial driver’s license, as compared to telling him that he did not have a license in the
sense there was none in his possession. Even assuming that Rascon told Sergeant Bennett that he
did not have a commercial driver’s license at all, the State does not assert how this fact was found
to be true outside of Rascon’s statement to Sergeant Bennett.                The record reflects that
Sergeant Bennett confirmed that there was a California driver’s license, apparently in Rascon’s
name, issued to someone at his address. The State gives us no reference to where the record might
show, independently of Rascon’s statement, that the license he had was not a commercial license.
Even if it were independently established to be true that Rascon did not have a commercial driver’s
license at all, we do not find it to be a fact or circumstance that conduces to establish Rascon’s guilt
of the offense. We, therefore, find that the trial court abused its discretion by admitting into evidence
Sergeant Bennett’s testimony as to Rascon’s unrecorded statements.
        Because any error in admitting this evidence is a nonconstitutional error, we must disregard
any error that does not affect Rascon’s substantial rights. As we have previously discussed, the
primary issue at trial was whether Rascon had knowledge that the load of cars he was carrying on
the truck contained marihuana. A crucial piece of evidence, that Rascon was contacted by someone
unknown and told to leave his truck at an El Paso truck stop for four hours unattended, was
significant insofar as it constituted strong evidence that Rascon knew that he was going to be
carrying illegal contraband. Rascon’s statement is the only source for this evidence. The district
attorney emphasized this evidence more than once in urging the jury to convict Rascon. However,
this evidence was subsequently admitted through admission of a portion of Sergeant Bennett’s
report, admitted on the basis of the rule of optional completeness. Rascon’s objection to the reading
of the report was related to TEX . R. EVID . 107, the rule of optional completeness. At that time,
Rascon’s counsel did not again object on the basis of TEX . CODE CRIM . PROC. ANN . art. 38.22, § 3
(Vernon 2005). Based upon the complete record, we conclude that the error in admitting Rascon’s
statements to Sergeant Bennett did not affect Rascon’s substantial rights. While this is true with

                                                   8
respect to this error considered by itself, we find it also to be true that error in the admission of this
evidence, taken together with the error in the admission of Rascon’s prior arrest for transporting
methamphetamine in Minnesota, did not affect Rascon’s substantial rights. We overrule Point Four.
        Rascon suggests in Point Five that the trial court erred in admitting into evidence several
paragraphs of Sergeant Bennett’s written report of the offense.                When cross-examining
Sergeant Bennett, counsel for Rascon asked him to read Paragraph 13 to himself. He then referred
Sergeant Bennett to Paragraph 25 of the report and asked him if it related to his interrogation of
Rascon. Sergeant Bennett confirmed that it did relate to his interrogation. Sergeant Bennett insisted
that Paragraph 25 did not contradict testimony that he had given earlier. When Rascon’s counsel
asked Sergeant Bennett if he had not testified earlier on that day that Rascon had told him he had
been hired by someone to drive to Fort Worth, Sergeant Bennett responded, “Yes, because that’s
where the vehicles were supposed to go to.” Rascon’s counsel asked Sergeant Bennett to just answer
“yes” or “no” and then repeated the same question. Sergeant Bennett responded, “If we can go back
to question 24 -- or number 24, he was asked as to why he was driving to Oklahoma City instead of
Fort Worth as detailed in the bill of lading. The bill of lading was --.”
        Rascon’s counsel responded, “And what does paragraph 25 say?” Sergeant Bennett
responded, “If I can read from 23 to 26, I think that would be --.” He was interrupted by Rascon’s
counsel, who first requested that he read Paragraph 25, but then retracted his request. At that point,
the district attorney requested that the entire report be introduced into evidence. The trial court
denied that request, but informed counsel that he would allow the witness to read the report on
redirect. When Rascon’s counsel asked if the trial court was going to permit the witness to read the
whole report, the court replied, “You’ve gone into it.”
        During the State’s reexamination of Sergeant Bennett, the court indicated that it would allow
to be read the portion of the report dealing with Rascon’s statement as to where his destination was
and limit it to that. After further discussion, the court stated, “Well, I will allow you to read those
paragraphs dealing with the destination as Rascon recited to the officer.” The court then limited it
to Paragraphs 24 and 25. After further discussion, the trial court told the district attorney, “You can
start with when they picked him up in El Paso -- or when the El Paso deal started, up until the stop
in Munday.” These rulings by the trial court were made in response to Rascon’s counsel’s
contention that the entire report could not be read into evidence. Rascon’s counsel did not object
to any of these rulings limiting what portion of the report could be read.

                                                    9
       Rascon’s counsel did not object when the district attorney suggested to the witness to start
reading at Paragraph 21 and read through Paragraph 32. The first paragraph related to why Rascon
had hired Villegas to drive, including the issue of Rascon not having possession of a commercial
driver’s license and an issue about a statement Villegas had made about their switching drivers
during the course of the traffic stop. After the witness read this portion, Rascon’s counsel stated to
the court that it was totally outside the parameters of Rule 107 because it did not relate to the issue
of where Rascon’s destination was. The trial court responded, “My ruling on this, [Defense
Counsel], as you understood it, was that we’re going to start in El Paso on the report and get to the
time of the stop in Munday. If you want to object to that, make your objection.” At that point,
Rascon’s counsel objected, “It’s outside the parameters of Rule 107.” After the trial court overruled
the objection, Sergeant Bennett read additional material from his report, some of which related to
what Rascon had told him about where he was supposed to be driving and some of which did not.
A portion of that included Rascon’s disclosure to Sergeant Bennett that a person unknown to Rascon
had telephoned him and instructed him to park at a truck stop, leave his truck unattended for four
hours, then drive to Oklahoma City and wait for another phone call from the same individual.
Rascon’s counsel did not specifically object to this portion of the report. When a portion of the
report was read that related to Rascon’s prior criminal history, Rascon’s counsel interrupted with an
objection before any detail of the history was revealed but never obtained a ruling on that objection.
       From the record, it appears that Rascon’s counsel had in his possession a copy of
Sergeant Bennett’s report. However, as we have noted, when the trial court announced which
paragraphs it was going to allow to be read into evidence, Rascon’s counsel made no objection. As
a prerequisite to presenting a claim for appellate review, the record must show that the objection at
trial was timely. TEX . R. APP . P. 33.1(a)(1). An objection is timely if the party makes the complaint
as soon as the error becomes apparent. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App.
2006). Consequently, Rascon’s objection was not timely.
       Rascon’s objection was that the offer of portions of the report was outside the parameters of
Rule 107, which expresses the rule of optional completeness. This rule provides:
               When part of an act, declaration, conversation, writing or recorded statement
       is given in evidence by one party, the whole on the same subject may be inquired into
       by the other, and any other act, declaration, writing or recorded statement which is
       necessary to make it fully understood or to explain the same may also be given in
       evidence.

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Rule 107. Some of the evidence that the State sought to admit was admissible because it was related
to the same subject involved in Rascon’s counsel’s questioning of Sergeant Bennett, but some was
inadmissible because it was not so related. Rascon generally objected that the evidence offered was
outside the parameters of Rule 107 but did not specify which specific portions that he considered as
inadmissible. When an exhibit contains both admissible and inadmissible evidence, the objection
must specifically refer to the challenged material to apprise the trial court of the exact objection.
Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). By failing to direct the trial court’s
attention to the specific portions of the evidence considered to be inadmissible, Rascon failed to
preserve error as to the trial court’s admission of those portions. We overrule Point Five.
       The judgment is affirmed.




                                                                                JOHN G. HILL
                                                                                JUSTICE


January 29, 2010
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.3




       3
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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