                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00015-CR

RUDOLPH CHAVEZ,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-931-C1


                          MEMORANDUM OPINION


      In this appeal, appellant, Rudolph Chavez, challenges his conviction for

unlawful possession of a controlled substance, methamphetamine, in an amount less

than 200 grams but more than four grams and with intent to deliver, a first-degree

felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010). In three

issues, appellant argues that: (1) the jury charge erroneously included a non-statutory

definition of “possession” and a faulty definition of “constructive transfer”; and (2) the

trial court abused its discretion by excluding evidence of appellant’s mental and
emotional condition because the evidence was relevant to mitigate punishment. We

affirm.

                                         I.      BACKGROUND

          At trial, Darryl Moore, an officer with the Waco Police Department working in

the Drug Enforcement Unit (“DEU”), testified that the DEU began investigating

appellant in July 2011 for distributing methamphetamine. According to Officer Moore,

the investigation lasted until September 2011 and involved more than five controlled

buys and surveillance of two houses in Waco, Texas, and appellant’s pickup truck.1 As

a result of their investigation, the DEU determined that appellant was indeed

distributing methamphetamine.

          Subsequently, officers obtained a warrant to search appellant’s pickup truck and

his residence at 2603 Summer Avenue. Officers intended to execute the warrant the

following day; however, they later learned that appellant was not at the house. As

such, officers split into groups and began searching for appellant.                   Officer Moore

spotted appellant driving his pickup truck in the area of 18th or 19th Street and I-35.

Appellant was eventually stopped at 20th Street and Dutton in Waco. The stop was

later moved to a secure location several blocks away because officers wanted to

apprehend appellant with the least amount of fanfare. Officer Moore recounted that

DEU officers wanted to work with appellant to discover the identity of appellant’s

methamphetamine suppliers.

          Officer Moore explained that a “controlled buy” occurs when: “The individual relating
          1

information to you about whoever it was that was selling drugs, whatever type of drug that might be at a
house, we would provide them with funds to purchase whatever type of drug they were supposed to be
selling.”

Chavez v. State                                                                                  Page 2
       Upon arriving at the secure location, Officer Moore read appellant his Miranda

rights and explained the plan to appellant. Officer Moore recalled that appellant agreed

to help officers discover the identity of his methamphetamine suppliers after officers

informed appellant that they had a search warrant. Thereafter, Officer Moore asked

appellant if there were any drugs inside the pickup truck. At first, appellant denied

having any drugs inside the pickup truck; however, he later changed his story and

informed officers that he had dropped some methamphetamine in a Bush’s Chicken tea

glass located inside the pickup truck. Other officers searched the pickup truck and

found baggies of methamphetamine inside the tea glass, a digital scale, and a small bag

of marihuana in the front seat. Faced with this evidence, appellant informed officers:

(1) that he had additional methamphetamine at his house; (2) about his

methamphetamine suppliers; (3) that he received methamphetamine weekly in an

amount of a half-ounce or greater for a three-month period; and (4) that he had

additional scales at his house.

       After speaking at the secure location, appellant and the officers proceeded to

appellant’s residence.    Officer Moore noted that appellant made several requests

regarding how officers should search the residence.      Appellant requested that the

officers searching the residence pose as construction workers who were present to

repair windows at the house. Appellant was afraid that his suppliers would observe

the police searching the house, which could compromise his work with police. Officers

thought appellant had some good ideas and agreed to pose as construction workers.




Chavez v. State                                                                   Page 3
       Inside the house, officers found a box under appellant’s bed, which contained

approximately an ounce of methamphetamine. In addition, officers found three scales

that tested positive for methamphetamine residue, plastic bags with methamphetamine

residue in a shirt in appellant’s closet, and a small amount of marihuana in a shoe box

under appellant’s bed. Officers did not find any user paraphernalia, such as needles or

pipes at the house. They also did not find any large amounts of cash. In any event,

they did notice that appellant had security cameras on his house that allowed him “to

watch whoever approached his residence.”

       At the conclusion of the search, officers arranged to meet appellant again.

Appellant failed to show for these meetings. Officer Moore indicated that officers tried

numerous times to get appellant to cooperate, but he refused to do so.          Officers

assumed that appellant had changed his mind regarding the plan and therefore

obtained an arrest warrant for appellant.

       Chad Hayes, a forensic scientist with the Texas Department of Public Safety in

Waco, tested a plastic baggy and the Bush’s Chicken tea glass seized from appellant.

Both tested positive for methamphetamine.       The plastic baggy and the tea glass

contained 24.11 grams and 746.06 grams of methamphetamine, respectively.

       Dennis Baier, a Sergeant with the Waco Police Department, testified that the

amount of methamphetamine in appellant’s possession was a “dealer amount.”

Sergeant Baier also stated that he believed appellant placed the plastic baggies of

methamphetamine in the Bush’s Chicken tea glass to conceal the evidence from officers,

rather than to get himself high. On cross-examination, Sergeant Baier acknowledged

Chavez v. State                                                                   Page 4
that heavy drug use and paint sniffing could have devastating effects on a person and

that a person’s ability to communicate could be compromised by such actions.

       At the conclusion of the evidence, the jury found appellant guilty of the charged

offense of unlawful possession of a controlled substance, methamphetamine, in an

amount less than 200 grams but more than four grams with intent to deliver.

Thereafter, appellant pleaded “true” to enhancement and habitual allegations contained

in the indictment, which referenced his prior drug convictions in January 2000 and

October 2004. The jury subsequently sentenced appellant to life imprisonment in the

Institutional Division of the Texas Department of Criminal Justice.           This appeal

followed.

                          II.    PURPORTED JURY-CHARGE ERROR

       In his first two issues, appellant complains about the jury charge. Specifically, in

his first issue, appellant argues that the charge erroneously provided the jury with a

non-statutory definition of “possession.” In his second issue, appellant asserts that the

charge erroneously defined “constructive transfer.”

A.     Applicable Law

       In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

Chavez v. State                                                                      Page 5
not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

       Appellant admits that he did not object to the jury charge; thus he must show

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the final arguments

of the parties, and any other relevant information revealed by the record of the trial as a

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B.     The Charge’s Definition of “Possession”

       Here, the charge at the guilt/innocence phase of trial provided the following in

the definitions section:

       “Possession” means actual care, custody, control or management.
       Possession is a voluntary act if the possessor knowingly obtains or
       receives the thing possessed or is aware of his control of the thing for a
       sufficient time to permit him to terminate his control; and that the
       Defendant knew that the object possessed was contraband.

On appeal, appellant contends that the first sentence comports with the definition

provided by section 481.002(38) of the Texas Health and Safety Code but that the second

sentence is problematic. See TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West

Chavez v. State                                                                       Page 6
2010) (“‘Possession’ means actual care, custody, control, or management.”).

Specifically, appellant argues that the first clause of the second sentence comports with

section 6.01(b) of the Texas Penal Code but that the second clause has no statutory basis

and, thus, was erroneously included. See TEX. PENAL CODE ANN. § 6.01(b) (West 2011)

(“Possession is a voluntary act if the possessor knowingly obtains or receives the thing

possessed or is aware of his control of the thing for a sufficient time to permit him to

terminate his control.”). We disagree.

       Article 36.14 of the Texas Code of Criminal Procedure requires the trial judge to

give the jury:

       a written charge distinctly setting forth the law applicable to the case; not
       expressing any opinion as to the weight of the evidence, not summing up
       the testimony, discussing the facts or using any judgment in his charge
       calculated to arouse the sympathy or excite the passions of the jury.

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “Texas courts are forbidden from

instructing the jury on any presumption or evidentiary sufficiency rule that does not

have a statutory basis.” Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003)

(citations omitted). The operative section of the Texas Health and Safety Code, section

481.112(a), involved in this case provides the following: “Except as authorized by this

chapter, a person commits an offense if the person knowingly manufacturers, delivers, or

possesses with intent to deliver a controlled substance listed in Penalty Group 1.”2 TEX.

HEALTH & SAFETY CODE ANN. § 481.112(a) (emphasis added). Included in this language

is the requirement that the State prove that appellant knowingly possessed a controlled


       2Section 481.102(6) lists methamphetamine as a Penalty Group 1 controlled substance. See TEX.
HEALTH & SAFETY CODE ANN. § 481.102(6) (West 2010).

Chavez v. State                                                                              Page 7
substance or, as several courts have noted, contraband. See Bethancourt-Rosales v. State,

50 S.W.3d 650, 653 (Tex. App.—Waco 2001, pet. ref’d) (“To establish the unlawful

possession of cocaine, the State must prove that the defendant (1) exercised care,

control, or management over the contraband, and (2) knew what he possessed was

contraband.”); see also Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011)

(same). Based on a plain reading of section 481.112(a), we cannot say that the second

clause of the second sentence of the definition of “possession” lacks statutory support

or is erroneous. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a). Accordingly, we

overrule appellant’s first issue.

C.     The Charge’s Definition of “Constructive Transfer”

       In his second issue, appellant contends that the definition of “constructive

transfer” is erroneous because it is not statutorily defined. The definitions section of the

guilt/innocence charge contained the following language:

       “Constructive transfer” is the transfer of a controlled substance either
       belonging to an individual or under his direct or indirect control, by some
       other person or manner at the instance or direction of the individual
       accused of such constructive transfer. It also includes an offer to sell a
       controlled substance. Proof of an offer to sell must be corroborated by a
       person other than the offeree or by evidence other than a statement of the
       [offeree].

       Assuming, without deciding, that the foregoing instruction was erroneous, we

do not believe that appellant was egregiously harmed. In his brief, appellant admits

that “this case did not involve a constructive transfer.”           Indeed, the evidence

demonstrated that DEU officers engaged in more than five controlled buys with

appellant that constituted actual transfers, not constructive transfers. Therefore, the

Chavez v. State                                                                       Page 8
“constructive transfer” instruction amounts to surplusage that the jury could readily

disregard because that issue was not pertinent to the trial. See Curry v. State, 30 S.W.3d

394, 399 (Tex. Crim. App. 2000) (“In Burrell v. State, we explained that ‘allegations not

essential to constitute the offense, and which might be entirely omitted without

affecting the charge against the defendant, and without detriment to the indictment are

treated as mere surplusage, and may be entirely disregarded.” (quoting Burrell v. State,

526 S.W.2d 799, 802 (Tex. Crim. App. 1975))); see also Brown v. State, No. 01-11-00462-CR,

2012 Tex. App. LEXIS 4150, at **19-20 (Tex. App.—Houston [1st Dist.] May 24, 2012, no

pet.) (mem. op., not designated for publication) (concluding that additional language

contained in the jury charge “was mere surplusage that the jury could have disregarded

as irrelevant”); Blackwell v. State, 193 S.W.3d 1, 16 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (same).

       In addition, the evidence supporting appellant’s conviction was overwhelming.

In fact, witnesses testified that appellant was a dealer of methamphetamine who had

large quantities of methamphetamine in his possession, scales, plastic baggies used for

distribution, and security cameras installed on his house for surveillance purposes.

Appellant did not have any paraphernalia that would suggest that he personally used

the methamphetamine.

       In determining the actual degree of harm, we examine the entire jury charge, the

state of the evidence, including contested issues and weight of probative evidence, the

argument of counsel, and other relevant information revealed by the record of the trial

as a whole. See Olivas, 202 S.W.3d at 144; see also Almanza, 686 S.W.2d at 171. And

Chavez v. State                                                                     Page 9
based on our review of the entire record, we do not believe that the purported error

affected the very basis of the case, deprived appellant of a valuable right, or vitally

affected his defensive theory. See Olivas, 202 S.W.3d at 144; see also Almanza, 686 S.W.2d

at 171. Accordingly, we cannot say that appellant was egregiously harmed by the

“constructive transfer” instruction. See Olivas, 202 S.W.3d at 144; see also Almanza, 686

S.W.2d at 171. We overrule appellant’s second issue.

                               III.   PUNISHMENT EVIDENCE

       In his third issue, appellant asserts that the trial court abused its discretion by

excluding evidence of appellant’s mental and emotional condition as relevant

mitigating punishment evidence. We disagree.

A.     Applicable Law

       We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an

abuse of discretion standard, an appellate court should not disturb the trial court’s

decision if the ruling was within the zone of reasonable disagreement.” Bigon v. State,

252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

       At the punishment phase of trial,

       evidence may be offered by the [S]tate and the defendant as to any matter
       the court deems relevant to sentencing, including but not limited to the
       prior criminal record of the defendant, his general reputation, his
       character, an opinion regarding his character, the circumstances of the
       offense for which he is being tried . . . .

TEX. CODE CRIM. PROC. ANN. art. 37.07, §3(a)(1) (West Supp. 2013).



Chavez v. State                                                                    Page 10
       Admissibility of evidence during the punishment phase of a non-capital trial is a

function of policy rather than relevancy. Muhammad v. State, 46 S.W.3d 493, 498 (Tex.

App.—El Paso 2001, no pet.) (citing Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim.

App. 1990); Schielack v. State, 992 S.W.2d 639, 641 (Tex. App.—Houston [14th Dist.] 1999,

pet. ref’d)). “Evidence admitted to inform the jury’s punishment decision is not a

question of logical relevance, as there are no distinct facts to be proven.” Id. (citing

Schielack, 992 S.W.2d at 641). “Mitigating circumstances relevant to punishment are

circumstances which will support a belief that defendants who commit criminal acts

that are attributable to such circumstances are less culpable than others who have no

such excuse.” Id. (citing Robison v. State, 888 S.W.2d 473, 487 (Tex. Crim. App. 1994)).

       As noted above, article 37.07, section 3(a) of the Texas Code of Criminal

Procedure authorizes the trial court to admit punishment evidence “as to any matter the

court deems relevant to sentencing . . . .” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a).

As such, the trial court “enjoys wide latitude in admitting relevant evidence so long as

its admission is otherwise permitted by the rules of evidence.” Muhammad, 46 S.W.3d at

498-99 (citing Mock v. State, 848 S.W.2d 215, 225 (Tex. App.—El Paso 1992, pet. ref’d)).

B.     Discussion

       During the punishment phase of trial, appellant called his sister, Marisela

Mendez, to testify about his mental and emotional condition. Appellant’s counsel

asked Mendez about appellant’s habit of sniffing paint, to which she responded that she

had heard of it. The State objected to this testimony as hearsay, and the trial court

sustained the State’s objection.     The State also objected to appellant’s counsel’s

Chavez v. State                                                                     Page 11
questions about appellant’s reports that Mendez’s life was in danger on hearsay

grounds. Once again, the trial court sustained the objection. However, Mendez did

testify, without objection, that she had observed appellant “talking to himself, seeing

things, rocking back and forth,” hallucinating, staying awake for long periods of time,

cleaning outside in the middle of the night, and abusing methamphetamine in high

doses. In addition, the record contains testimony from psychiatrist Stephen Mark,

M.D., who noted that appellant had reported hearing voices.3

        Shortly thereafter, appellant supplied the trial court with an offer of proof by

way of a bill of exception.         In appellant’s bill of exception, Mendez testified that

appellant has made numerous statements to her that are not true. Mendez also stated

that appellant has told her things that have happened to her that have not really

happened. Appellant also elicited testimony from Mendez regarding the following: (1)

appellant told her that he had a video recording of her being captured—an event that is

not true; (2) appellant told Mendez that she was going to be killed—another event that

is not true; and (3) appellant has repeatedly made statements to Mendez that were not

true for “the past maybe six, seven, eight months . . . .” Mendez also noted that

appellant has called her thirty to forty times a day and that appellant hears or sees

things that do not exist or have not occurred.



        3 It is noteworthy that Dr. Mark evaluated appellant twice and determined both times that

appellant was competent to stand trial. In addition, the record demonstrates that appellant made
numerous outbursts during trial despite several warnings from the trial court. Eventually, appellant was
removed from the courtroom because of his failure to control his outbursts. Nevertheless, Dr. Mark
conducted another evaluation of appellant and determined that appellant was “trying to add to or
augment any findings. It looked like he was putting on.” Upon further questioning, Dr. Mark
acknowledged that he believed appellant to be faking and malingering.

Chavez v. State                                                                                 Page 12
       Based on our review of the record, we cannot say that the trial court abused its

discretion in excluding portions of Mendez’s testimony. First, much of the content of

the excluded testimony was admitted elsewhere. In particular, Mendez testified that

she observed appellant “talking to himself, seeing things, rocking back and forth,”

hallucinating, staying awake for long periods of time, cleaning outside in the middle of

the night, and abusing methamphetamine in high doses.             Furthermore, Dr. Mark

testified about his evaluation of appellant, which included appellant’s self-report that

he hears voices.    Arguably, the excluded evidence was merely cumulative of the

evidence about appellant’s mental and emotional condition that was admitted. See TEX.

R. EVID. 403 (“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by . . . considerations of undue delay, or needless presentation

of cumulative evidence.”). And as such, we do not believe that the trial court’s decision

to exclude portions of Mendez’s testimony was outside the zone of reasonable

disagreement as to constitute an abuse of discretion. See Bigon, 252 S.W.3d at 367; see

also McDonald, 179 S.W.3d at 576.

       Nevertheless, even if it was error to exclude the testimony elicited during

appellant’s bill of exception, we fail to see how such an exclusion of this evidence is

harmful error. In Muhammad, the El Paso Court of Appeals noted the harm analysis

involved with the admission or exclusion of evidence.          See 46 S.W.3d at 509.     In

particular, Texas Rule of Appellate Procedure 44.2 governs harm analysis in criminal

cases. See id. (citing TEX. R. APP. P. 44.2). Texas courts have held that generally error in

the admission or exclusion of evidence does not rise to the constitutional level.

Chavez v. State                                                                      Page 13
Muhammad, 46 S.W.3d at 509 (citing Fowler v. State, 958 S.W.2d 853, 865 (Tex. App.—

Waco 1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999)). Accordingly, we assay harm

in this issue under rule 44.2(b), which provides that “any other error, defect,

irregularity, or variance that does not affect substantial rights must be disregarded.” Id.

(citing TEX. R. APP. P. 44.2(b)). “A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict.”         Id.

(citing Peters v. State, 31 S.W.3d 704, 722 (Tex. App.—Houston [1st Dist.] 2000, pet.

ref’d)). Moreover, a reviewing court will not overturn a criminal conviction for non-

constitutional error if, after examining the record as a whole, we have fair assurance

that the error did not influence the jury, or had but a slight effect. Id. (citing Peters, 31

S.W.3d at 722).

       Here, the trial court admitted ample evidence of appellant’s mental condition,

including Mendez’s testimony that appellant was “talking to himself, seeing things,

rocking back and forth,” hallucinating, staying awake for long periods of time, cleaning

outside in the middle of the night, and abusing methamphetamine in high doses.

Furthermore, according to Dr. Mark, appellant self-reported that he hears voices. In

addition, as noted earlier, appellant engaged in numerous outbursts during trial—most

of which were observed by the jury. Given the ample evidence of appellant’s mental

condition that was admitted, and after examining the record as a whole, we have fair

assurance that the purported error in excluding portions of Mendez’s testimony would

not have influenced the jury, or had but a slight effect. See TEX. R. APP. P. 44.2(b);

Muhammad, 46 S.W.3d at 509; Peters, 31 S.W.3d at 722.

Chavez v. State                                                                       Page 14
         We overrule appellant’s third issue.

                                      IV.       CONCLUSION

         Having overruled all of appellant’s issues, we affirm the judgment of the trial

court.




                                                   AL SCOGGINS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 5, 2013
Do not publish
[CRPM]




Chavez v. State                                                                  Page 15
