Toliver v. State (Unpublished Memo): First degree felony crack-dealing conviction resulting in life sentence is affirmed because inadmissible prior crack deals either weren’t objected to, or objections only went to one type of evidence (such as video) when the deal shown on the video was the subject of live testimony.
Toliver was a crack dealer in Tyler. Wallace was a crack addict turned informant for Tyler PD Officer Tekell. Wallace purchased crack from Toliver three times. Once in a hotel, then twice in Toliver’s home.
The video of the last transaction didn’t show drugs changing hands, but the activities shown on the video certainly didn’t rule out a drug transaction. In fact, both Wallace and Officer Tekell testified that Wallace went in to Toliver’s house with nothing but $175 in his pocket (and, of course, a wire), and came back out without the money, but with more than 4 grams of crack.
Toliver was tried for the final transaction, presumably because it was the only one that exceeded 4 grams – a first degree felony. Evidence of all three transactions came in, as well as evidence from transactions not involving Wallace.
Toliver objected based on Tex. R. Evid. 404(b) and 403. Toliver didn’t contest motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In short, Toliver was where the State said he was, and he was the sort of fellow who might well trade in drugs.
Toliver’s only defense was that he didn’t sell these drugs at this particular time to Wallace. Because Toliver narrowed his defenses, he also narrowed (in fact, removed) the State’s basis for putting on evidence of the prior transactions. They’re extraneous and inadmissible.
Even so, Toliver’s appeal went nowhere. For the most part, Toliver’s objections were waived because they were made after the evidence was already admitted. When he did make timely objections, the error he objected to was harmless because the objection went to just one form of evidence about a transaction (e.g., a videotape) when the same transaction was admitted in another form (e.g., live testimony).
The evidence on the “record as a whole” was legally and factually sufficient to convict Toliver. That being said, the Tyler court’s discussion of the record does not go into the extraneous offenses. Instead, the discussion is limited to the transaction in the indictment. The jury was entitled to believe Wallace and Officer Tekell about what happened that day, and (without stating as much) the Tyler court leaves the clear impression that their testimony alone was enough to support the conviction.
