Affirmed and Memorandum Opinion filed November 4, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00943-CR

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CHRISTOPHER WILLIAM PAYNE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 951,012

M E M O R A N D U M   O P I N I O N

Appellant was sentenced to seven years in prison after a jury found him guilty of aggravated assault.  On appeal, appellant contends the trial court erred by allowing police officer testimony that there was enough evidence to contact the District Attorney’s office for charges, by refusing to declare a mistrial after the complaining witness spoke to a juror, and by permitting police officer testimony about appellant’s possession of a gun when he was arrested for another offense.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly before the assault, appellant was living at the complainant’s home to help with their son’s behavioral problems.  On the night of the assault, appellant’s son let him into the home.  Appellant was very angry and, according to the complainant, he pulled two guns from behind his back.  At two points, appellant pointed a gun at the complainant, causing her to fear for her life.  Appellant ultimately left, taking a car that belonged to the complainant’s father.  Early in the morning of the next day, Officer Bradley of the Houston Police Department arrested appellant for discharging a firearm and evading arrest.  Two days after the assault, the complainant’s father reported to police that appellant stole his car.  At that point, Detective Horowitz from the family violence unit spoke with the complainant and appellant, and contacted the district attorney’s office for charges.

ANALYSIS

Detective Horowitz’s testimony

Appellant first argues that Detective Horowitz’s testimony impermissibly bolstered the complainant’s testimony by vouching for her credibility.  Detective Horowitz testified, over a relevance objection, that he spoke with the complainant and  “felt there was enough evidence there to contact the District Attorney’s office for charges.”  The detective also testified that he met and spoke with appellant during his investigation.  Appellant claims this testimony harmed him because the detective’s testimony indicated he believed the complainant and the State’s case depended upon the complainant’s testimony and credibility.

Appellant correctly points out that a police officer cannot testify that the defendant is guilty or that another witness is truthful.  See, e.g., Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. 1982) (improper for two detectives to testify that they believed defendant was guilty); Green v. State, 928 S.W.2d 119, 124 (Tex. App.—San Antonio 1986, no pet.) (improper for detective to vouch for State’s main witness’s credibility).  But, in appellant’s case, Detective Horowitz did not state that he believed appellant was guilty, or that he believed that the complainant was telling the truth.  Detective Horowitz merely explained to the jury what he did after speaking with the complainant and why.  Because this testimony is qualitatively different than testimony ruled inadmissible in the case law, we overrule appellant’s first point of error.

Juror’s conversation with complainant

Appellant also alleges the trial judge should have declared a mistrial because of a conversation a juror had with the complainant.  When the conversation occurred during a recess, the juror immediately reported it to the trial judge.^[1]  Appellant urges us to presume injury because of this unauthorized conversation.  Tex. Code Crim. P. art. 36.22 (“No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.”); Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim. App. 1995) (en banc) (“When a juror converses with an unauthorized person about the case, injury to the accused is presumed.”).  However, the presumption of injury that arises from a juror’s unauthorized conversation is rebutted if the case was not discussed or if nothing prejudicial was said.  Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000).

The record reveals the presumption was rebutted.  The juror and the complainant did not discuss appellant’s case.  The little information exchanged during the conversation was not prejudicial to appellant’s case.  The juror told the court that she did not know the complainant or her son personally, that she had no personal interaction with them, and that she did not feel their short meeting would affect her judgment of the case or influence her decision in any way.  The juror also promised not to disclose what had occurred or attempt to gain any additional knowledge about the case.  The judge stated, on the record, that he believed the juror was credible and would follow the court’s instructions. 

The trial judge was in the best position to make that determination and we do not find it was an abuse of discretion for the judge to go forward with the case.  See Robinson v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991) (not an abuse of discretion to deny motion for mistrial when juror promised not to relay prejudicial information to other jurors and stated the information would not influence juror’s verdict).  We therefore overrule appellant’s second point of error.

Officer Bradley’s testimony

In his third point of error, appellant contends the trial court erred by permitting Officer Bradley to testify in a way that informed the jury of an extraneous offense.  Officer Bradley testified that he had a lawful reason to speak with appellant and that he observed appellant take out a pistol and throw it on the ground.^[2]  The trial court gave an appropriate limiting instruction, both orally and, later, in the jury charge.

Appellant asserts that Texas Rules of Evidence 403 and 404(b) required this evidence to be excluded.  Tex. R. Evid. 403 (providing for exclusion of relevant evidence if unfair prejudice substantially outweighs probative value); Id. at 404(b) (providing for exclusion of extraneous matters to show action in conformity with character).  We review admissibility decisions for an abuse of discretion and will uphold the decision if it is within the zone of reasonable disagreement.  Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

Appellant correctly asserts that he was entitled to be tried for the offense charged and not for a collateral crime nor for being a criminal generally.  Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990) (en banc).  This does not mean, however, that extraneous offense evidence is never permissible.  The trial judge may admit evidence of extraneous matters if the evidence’s relevance outweighs its potential for prejudice.  Id.  (“Exceptions . . . allow extraneous matters to be admitted if the extraneous matter is relevant to a material issue and the relevancy value outweighs the prejudicial potential.”) (citations omitted).  We therefore must determine whether the circumstances of appellant’s arrest meet this test.  Id. (requiring such evidence to meet same test as other extraneous matter). 

In this case, Officer Bradley testified that appellant had a gun and bullets when he spoke with him.  We cannot say Officer Bradley’s testimony had ‘no relevance’ to proving appellant committed aggravated assault by pointing a gun at the complainant just hours before his arrest.  Christopher v. State, 833 S.W.2d 526, 529 (Tex. Crim. App. 1992) (en banc) (“[P]ossession of a weapon . . . is usually relevant as a circumstance of the offense because arguably the weapon is intended [] to be used . . . for protection or threat during the offense.”)  (citing Maddox v. State, 682 S.W.2d 563, 565 (Tex. Crim. App. 1985) (en banc)).  Nor can we say the evidence was unfairly prejudicial, particularly since the trial judge gave limiting instructions and did not allow the officer to testify that appellant had just fired the gun and was attempting to evade the police when they arrested him.

In light of these facts, we find no abuse of discretion in allowing this testimony and overrule appellant’s final point of error.  Having overruled appellant’s three points of error, we affirm his conviction.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed November 4, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish — Tex. R. App. P. 47.2(b).