                                   NO. 07-03-0362-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   OCTOBER 23, 2008

                          ______________________________


                      MICHAEL LEROY CAMERON, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

           FROM THE 9TH DISTRICT COURT OF MONTGOMERY COUNTY;

            NO. 01-09-05992CR; HONORABLE FRED EDWARDS, JUDGE

                         _______________________________

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


                   MEMORANDUM OPINION ON SECOND REMAND
                      FROM COURT OF CRIMINAL APPEALS


       Following a plea of not guilty Appellant, Michael Leroy Cameron, was convicted by

a jury of delivery of a controlled substance. Finding the three enhancement allegations in

the indictment to be true, the trial court assessed sentence at twenty-five years

confinement. By two issues, Appellant asserted: (1) the trial court erred in prohibiting his

prior attorney from testifying unless Appellant waived his attorney-client privilege, and (2)
his trial counsel was ineffective. By opinion dated August 16, 2004, this Court overruled

Appellant’s ineffective assistance of counsel issue. Cameron v. State, No. 07-03-0362-CR,

2004 WL 1839794 (Tex.App.–Amarillo Aug. 16, 2004) (not designated for publication). By

that same opinion, this Court determined that Appellant failed to preserve error as to his

first issue; however, on Appellant’s second petition for discretionary review, the Court of

Criminal Appeals reversed the decision of this Court, holding that Appellant’s contention

had been preserved for review. The Court of Criminal Appeals went on to hold that the trial

court had abused its discretion in failing to admit testimony from Appellant’s former

attorney and remanded the case to this Court with instructions to conduct a harm analysis.

Cameron v. State, 241 S.W.3d 15, 22-23 (Tex.Crim.App. 2007).


                                   Factual Background


       Because the background facts have been previously set out in the prior opinions of

this Court and the Court of Criminal Appeals, for purposes of our harm analysis, we restate

only those background facts as are necessary to an understanding of our analysis.


       Ron Pickering and Philip Cash were working as undercover narcotics officers at the

Handle Bar Club in Conroe during the evening hours of April 25, 2001, and the early

morning hours of April 26th.      During their undercover operation, Pickering made

arrangements with Stacy Warden to purchase some cocaine. After making a cell phone

call to an unidentified number, Warden indicated to Pickering that “it would be there within

15 minutes.” Sometime later, an individual entered the club, made eye-contact with

Warden, and then exited the club. Pickering identified that individual as Appellant.


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According to Pickering’s testimony, Warden then followed Appellant to a vehicle in the

parking lot of the club. Pickering and Cash exited the club and observed Warden meet

with Appellant at the vehicle. Warden then crossed the parking lot, where she delivered

a plastic bag containing cocaine to Pickering in exchange for $120.00. Warden then

walked back to Appellant and handed him the money. A few moments later, while

Pickering was still standing in the parking lot, Warden introduced Appellant to him as

“Mike.” At that time, Appellant asked Pickering “how he liked the blow,” (the street name

for powder cocaine) and advised him that “if [he] needed anything more that [he] should

contact [Warden].”


       No arrests were made at that time. Instead, Pickering described the investigation

as a “buy and walk,” where their status as undercover agents would not be compromised.

Appellant and Warden were identified by subsequent police investigation, the case was

referred to the district attorney’s office, and the grand jury indicted Appellant for the offense

of delivery of a controlled substance on September 25, 2001.


       At trial, Appellant attempted to offer the testimony of his former attorney, Guy Jones,

for the purpose of establishing discrepancies in the existence and content of a handwritten

police offense report. Appellant was prevented from offering that testimony when the trial

court ruled that, in order to present that evidence, he would have to waive his attorney-

client privilege. According to Jones’s testimony presented during Appellant’s Bill of

Exceptions, the police offense report in the district attorney’s file was a typewritten report

which identified the suspect vehicle as a dark blue truck. An earlier, handwritten report (no

longer located in the district attorney’s file) identified the vehicle as a white truck.

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According to Jones, the two reports were otherwise identical. The Court of Criminal

Appeals determined that the trial court abused its discretion in refusing to allow Jones to

testify. Cameron, 241 S.W.3d at 22-23. As directed by the Court, we will now conduct a

harm analysis on the trial court’s refusal to allow Jones to testify.


                                       Harm Analysis


       Error in the exclusion of evidence is evaluated under Texas Rule of Appellate

Procedure 44.2, with constitutional error evaluated under the “beyond a reasonable doubt

standard” of subparagraph (a) and nonconstitutional error evaluated under the “substantial

rights” standard of subparagraph (b). Generally, the exclusion of evidence is classified as

nonconstitutional error. Walters v. State, 247 S.W.3d 204, 218 (Tex.Crim.App. 2007).

However, the improper exclusion of evidence can present a constitutional issue if it

effectively prevents the accused from presenting relevant evidence that is a vital portion

of the case or significantly undermines or precludes the presentation of a defense by the

accused. Potier v. State, 68 S.W.3d 657, 659-63, 666 (Tex.Crim.App. 2002).


       Because we must apply a different standard of review for purposes of harm analysis

depending upon whether the erroneous exclusion of evidence was of constitutional

dimension, we must first determine whether the trial court’s erroneous exclusion of

evidence in this case constitutes constitutional or nonconstitutional error.




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                         Constitutional v. Nonconstitutional Error


       Not every erroneous exclusion of a defendant’s evidence amounts to a constitutional

violation. Id. at 659. Here, the error in question was the erroneous exclusion of Guy

Jones’s testimony concerning the existence and content of a handwritten police offense

report that was identical to the existing typewritten report with the sole exception of the

color of the suspect vehicle. Even though the color of the vehicle was never an issue,

Appellant sought to impeach the credibility of the police officers’ testimony by establishing

that they had given conflicting descriptions of Appellant’s vehicle and had possibly even

altered the offense report. Therefore, the existence of a previous handwritten report and

the discrepancy in the color of the vehicle described in the two reports could have been

relevant to the credibility of the police officer witnesses for purposes of impeachment.


       If the testimony in question had been presented to the jury, and if the jury chose to

believe that testimony, then the jury could have determined either that the officers were

careless in their investigation at best, or they engaged in the intentional falsification of

evidence at worst. However, as more fully discussed hereinbelow, because Appellant was

able to attack the credibility of the officers’ testimony through the use of other testimony,

we cannot say that the exclusion of Jones’s testimony significantly undermined the

fundamental elements of Appellant’s defense. Accordingly, we find that the error did not

amount to constitutional error, but was instead, nonconstitutional error.




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                                    Standard of Review


       Nonconstitutional error involving the exclusion of evidence requires reversal only if

we determine that an appellant's substantial rights were affected. See Tex. R. App. P.

44.2(b); Walters, 247 S.W.3d at 218. A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. Morales v.

State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In other words, a criminal conviction

should not be overturned for nonconstitutional error if the appellate court, after examining

the record as a whole, “has fair assurance that the error did not influence the jury, or had

but a slight effect.” Id.


       When the claimed error is the exclusion of a relevant piece of evidence, as is the

case here, conducting a meaningful harm analysis necessarily requires consideration of

all evidence which was admitted at trial. Id. In assessing the likelihood that the jury's

decision was adversely affected by the error, the appellate court should consider

everything in the record, including both testimonial and physical evidence admitted for the

jury's consideration, the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with other evidence in the case.

Id. The reviewing court must also consider any jury instruction given by the trial judge, the

State's theory, any defensive theories, closing arguments, and even voir dire, if material

to an appellant's claim. Id.




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                                           Analysis


       In this case, Appellant presented two basic defensive theories: (1) Warden was the

sole participant in the offense because she had the narcotics in her possession all along,

and (2) the officers misidentified him as being the person in the vehicle from whom Warden

acquired the narcotics immediately prior to her delivery of the same to Pickering.


       While the exclusion of Jones’s testimony came at the conclusion of Appellant’s

case-in-chief, he did not wait until that moment to introduce his potential defenses. In voir

dire, Appellant’s counsel questioned the prospective jurors concerning conflicts in

testimony, their relationship to law enforcement personnel, their opinions concerning the

credibility of police officer witnesses, and the possibility of misidentification of the accused.

Appellant’s counsel touched upon factors contributing to misidentification, including lighting

conditions, distance, personal contact, and prior consumption of alcohol by the person

making the identification - all factors Appellant’s counsel subsequently developed during

cross- examination of the State’s witnesses and through the presentation of defense

witnesses.


       During the State’s case-in-chief, Appellant’s counsel vigorously cross-examined

Officers Pickering and Cash concerning their undercover activities and their ability to

positively identify Appellant as the person who delivered narcotics to Warden immediately

prior to her delivery to Officer Pickering.        The officers were extensively questioned

concerning their investigation techniques, including the possibility that Warden had the

narcotics hidden in her bra all along. The officers’ ability to positively identify Appellant was


                                               7
also placed into question based upon their consumption of alcohol during the course of

their undercover investigation. They were further questioned concerning the lighting

conditions in the parking lot, their proximity to the transaction between Warden and the

individual in the vehicle, their identification of Appellant and his vehicle, their failure to

investigate the telephone records of the phone used by Warden to call her supplier, their

failure to have the baggie containing the narcotics fingerprinted, and their decision to delay

the arrest of the persons involved.


       In his opening statement, Appellant’s counsel admitted that Appellant was at the

Handle Bar Club on the night in question; however, he also called into question the ability

of the officers to positively identify him as the person in the parking lot who might have

delivered the narcotics to Warden. Furthermore, he questioned the ability of the officers

to identify the vehicle due to their proximity to the transaction and the poor lighting

conditions present.


       Appellant then offered the testimony of Shelly Cummings and Elliott Brown to

confirm his version of the events of the night in question, including Appellant’s presence

at the bar. Appellant also offered the testimony of Ronald Lehmiller, an investigator, as

well as, Ismail Bhai and Roy Wilkins, adjacent business owners, to place into question the

lighting conditions in the parking lot and the ability of the officers to identify Appellant, or

Appellant’s vehicle, as being involved in the narcotics transaction witnessed by them.


       Finally, during closing arguments Appellant’s counsel again questioned the

investigation techniques of Officers Pickering and Cash, calling into question their reliability


                                               8
and credibility. Appellant’s closing arguments could be paraphrased as, no audio tape of

the transaction; no immediate arrest and suspect identification; no fingerprint investigation;

no marked money; no bogus stop, search and seizure; no investigation of the telephone

records, in other words “nothing but questions.” In fact, Appellant’s entire closing

argument can be seen as a criticism of the officers investigation and a plea for the jury to

rely upon the principle of reasonable doubt to acquit Appellant.


       Because the State did not offer any evidence that directly contradicted Appellant’s

first defensive theory, the “Warden did it” theory, Appellant’s postulation of that theory did

not turn on the credibility of the officers’ testimony. Therefore, the erroneous exclusion of

Jones’s testimony did not preclude or hinder Appellant in his presentation of that defense.


       As to the defensive theory of misidentification, the credibility of the officers was

called into question. The officers testified that Appellant came into the bar, made eye

contact with Warden, and then returned to his vehicle in the parking lot where he

subsequently delivered the narcotics to Warden. Their testimony directly tied Appellant to

the delivery of the narcotics. Their positive identification of Appellant did not, however,

depend solely upon their ability to identify the occupant of a vehicle in a dark parking lot.

Their identification was bolstered by Appellant’s prior appearance in the bar, as well as his

being introduced to the officers as “Mike,” and his direct comment to the officers

concerning their satisfaction with the purchase.


       Another relevant factor in a harm analysis is the character of the error and how it

might be considered in connection with other evidence in the case. Motilla v. State, 78


                                              9
S.W.3d 352, 359 (Tex.Crim.App. 2002). In this case, the excluded evidence did not go

directly to the issue of guilt or innocence but was instead relevant to the collateral issue of

credibility of the State’s key witnesses. Though relevant, the exclusion of the evidence did

not prevent Appellant from attacking their credibility. Therefore, in this case, the character

of the error amounted to the exclusion of supporting evidence, not the exclusion of all

evidence relevant to the issue of credibility of the witnesses.


       Finally, though not outcome determinative, evidence of Appellant’s guilt is also a

factor to consider in conducting a harm analysis under Rule 44.2(b). Id. Subject to a

determination of their credibility, both of the State’s witnesses provided direct testimony

concerning Appellant’s guilt. The testimony of either witness, taken alone, would have

been sufficient to support a finding of guilt. The jury is the sole judge of the credibility of

the witnesses and the weight to be given their testimony, and it may choose to believe all,

some, or none of the testimony presented. We must, therefore, give great deference to

the jury’s determinations, particularly those concerning the weight of the evidence and the

credibility of the witnesses. Johnson v. State, 23 S.W.3d 1, 14 (Tex.Crim.App. 2000).


       Based upon our analysis of the entire record, from voir dire through final closing

arguments, we cannot say that the exclusion of Jones’s testimony had a substantial and

injurious effect or influence in determining the jury’s verdict. In other words, we are able

to say that we have a “fair assurance” that the error did not did not significantly impair the

presentation of Appellant’s misidentification defensive theory, or otherwise influence the

jury, or had but a slight effect. Morales, 32 S.W.3d at 867.



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                                        Conclusion


       Accordingly, we find the error to be harmless. Appellant’s first issue is overruled.

Having previously overruled Appellant’s second issue pertaining to ineffective assistance

of counsel, Cameron v. State, No. 07-03-0362-CR, 2004 WL 1839794 (Tex.App.–Amarillo

Aug. 16, 2004) (not designated for publication), the trial court’s judgment is affirmed.


                                                        Per Curiam




Do not publish.




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