Yohawnn Dante Bynes v. State ( 2009 )

NO. 07-08-0207-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 24, 2009

______________________________

YOHAWNN DANTE BYNES,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 31^ST DISTRICT COURT OF WHEELER COUNTY;

NO. 4062; HON. STEVEN EMMERT, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

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

          Yohawnn Dante Bynes appeals his conviction for possessing a controlled substance with intent to deliver by contending: 1) the evidence is legally and factually insufficient to sustain his conviction as a principal, 2) the evidence is legally and factually insufficient to sustain his conviction as a party, and 3) the trial court erred in denying his motion to suppress. We affirm the judgment.

          

          Background

          On June 1, 2003, Troopers Jerome Ingle and Jason Lindley observed a vehicle, on I-40, driven by Melissa Perkins and traveling too close to the vehicle in front of it. While attempting to catch up to Perkins, they also observed her change lanes without signaling. Thereafter, the troopers initiated a traffic stop and, while doing so, noticed appellant twice rise up in his seat from a reclining position and look at the officers. When the stop had been performed and the troopers approached Perkins’ car, appellant was found in the passenger’s seat feigning sleep. Perkins’ five-year-old daughter was discovered in the back seat.

          Perkins showed Trooper Ingle a rental agreement for the vehicle, which was in her name. The agreement was for a two day, one-way trip from California to Arkansas. Moreover, when questioned, she appeared to look to appellant for answers. Additional inquiry revealed that she and appellant had only known each other for two weeks, did not know each other’s last names, and were traveling cross country together purportedly so he could help her drive and she could visit relatives. The troopers also discovered that appellant lied when informing them that he had no identification. He told them that he had lost his identification or wallet. The troopers thought this odd since that suggested he was traveling cross-country without either identification or money. Nevertheless, when appellant was asked to exit the car and pull his pants up, his wallet was seen in his pocket, and at that point he produced identification.

          When asked for consent to search the vehicle, appellant told the troopers to ask Perkins since the vehicle was not his. In turn, Perkins denied them consent. This resulted in the troopers calling for a drug dog. The latter eventually alerted on the vehicle. Subsequent inspection of the car uncovered 530 grams of cocaine in a camera case on the floor behind the driver’s seat. The camera itself was next to where appellant sat while in the car.  

          Issues 1-4 - Sufficiency of the Evidence

          In his first four issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction as either a principal or a party. He asserts that he was not in exclusive possession or control of the place where the contraband was found, and the only evidence linking him to the drugs was his presence in the vehicle. We overrule the issue.

          To prove the charge against appellant, the State was required to demonstrate that he knowingly exercised care, custody or control over a controlled substance. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). Furthermore, when the accused does not have sole possession of the locale where the drugs are found, we look at various indicia to see if he is nonetheless linked to them. Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006). Those indicia consist of things such as whether 1) the accused was present when the search was conducted, 2) the contraband was plainly visible by those present, 3) the drugs were near the defendant, 4) the defendant was under the influence of the substance found, 5) the defendant possessed other contraband or drug paraphernalia when arrested, 6) the defendant uttered any incriminating statements, 7) the defendant attempted to flee or undertook acts indicating a consciousness of guilt, 8) the defendant made furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other contraband or drug paraphernalia was present, 11) the defendant had the right to exclusive or joint possession of the locale where the drugs were found, 12) the place where the drugs were found was enclosed, 13) the amount of contraband discovered was large, and 14) the accused was familiar or had experience with drugs. Valle v. State, 223 S.W.3d 538, 541 (Tex. App.–Amarillo 2006, pet. dism’d). Moreover, the number of indicia present is not as important as the degree to which they tend to link the defendant to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.–Tyler 1995, pet. ref’d).

          In considering the indicia here, we find the following in the record: 1) appellant twice rose to stare at the officers though he feigned sleep when they approached the car on foot, 2) appellant was seen reaching towards the area behind the driver’s seat, 3) the drugs were located in a camera case within easy reach to where appellant lay when reclining, 4) the camera case was not zipped shut although its flap was folded over, 5) appellant’s shoes were located in the back seat, 6) the camera itself was found on the floor of the front passenger seat where appellant was sitting beside a fully loaded Glock pistol magazine, 7) appellant lied to the officer about having no identification, 8) the quantum of cocaine found was an amount that would be used for distribution as opposed to personal use, 9) the driver of the vehicle seemed to be looking to appellant for answers when she was questioned by the officers, 10) Perkins’ gaze remained fixed towards appellant while being questioned,11) even though appellant was not listed on the car rental contract as a driver, he told the officers that he was in the car to help drive, 12) even though Perkins’ name was on the rental contract, she was unemployed and she and appellant barely knew each other, and 13) Ingle testified that based on his training and experience, he knew that drug couriers often use a rental vehicle, often try to avoid identification, and often have little acquaintance with those with whom they travel. Upon considering them in their totality, these factors would allow a rational jury to infer, beyond reasonable doubt, that appellant not only knew of the contraband in the vehicle but also exercised care, custody or control over it.

          Admittedly, Perkins was allowed to retrieve her child from the back seat and await the drug dog’s arrival by sitting in the front passenger seat. While this could suggest that she had time to manipulate the drugs, the jury was free to reject that hypothesis. And, at the very least, appellant had as much access to the drugs as did Perkins. Therefore, the verdict was not so against the great weight of the evidence as to destroy our confidence in it. Accordingly, we find the evidence both legally and factually sufficient to support appellant’s conviction.  

          Issue 5 - Motion to Suppress

          Appellant also challenges the trial court’s denial of his motion to suppress. Purportedly, the officers lacked reasonable suspicion to effectuate the traffic stop. Furthermore, Trooper Ingle’s opinion that Perkins was following the car in front of her too closely was not supported by specific articulable facts, according to appellant. We overrule the issue.

           In reviewing a motion to suppress, we afford great deference to the trial court’s interpretation of historical facts. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). That deference extends to both the trial court’s authority to assess the credibility of the witnesses and its authority to disbelieve or believe controverted testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). However, we do not afford the same deference to the trial court’s application or interpretation of the law. Ford v. State, 158 S.W.3d at 493. Finally, we note that a law enforcement officer may stop a vehicle if he has a reasonable suspicion to believe that a traffic violation is in progress or has been committed. McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.–Fort Worth 2001, pet. ref’d).

          Irrespective of whether Perkins was driving too closely to another vehicle, Trooper Ingle testified that prior to actually turning on his lights and initiating the stop, he observed Perkins change lanes without signaling, which itself constituted a traffic violation. Thus, there existed legitimate basis for the stop.

          Accordingly, the judgment is affirmed.

 

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.        

 

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NO. 07-10-00196-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL C

 

MARCH 23, 2011

 

 

JULIE ANN TURNER, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

 

NO. B15347-0401; HONORABLE EDWARD LEE SELF, JUDGE

 

 

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

 

 

MEMORANDUM OPINION

  Appellant, Julie Ann Turner, entered a plea of guilty to possession of a controlled substance, methamphetamine, in an amount of less than one gram[1] and was sentenced to 18 months in a State Jail Facility (SJF) and fined $2,000; however, appellant’s SJF sentence was suspended, and appellant was placed on community supervision for a period of five years.  Later, the State filed a motion to revoke appellant’s community supervision.  After a hearing on the State’s motion to revoke, the trial court revoked appellant’s community supervision and sentenced her to the original sentence of 18 months confinement in a SJF.  Appellant appeals contending that one of the terms of probation that the State alleged appellant violated was an invalid term and the resulting revocation must be reversed.  Further, appellant contends that the evidence was not sufficient to sustain the judgment of the trial court revoking her community supervision.  We will affirm.

Factual and Procedural Background

            Following appellant’s indictment for possession of a controlled substance, methamphetamine, in an amount of less than one gram, appellant entered into a plea bargain with the State.  As a result of the plea bargain, appellant was found guilty of the indicted offense and sentenced to serve 18 months in an SJF and pay a $2,000 fine.  The SJF portion of the sentence was suspended, and appellant was placed on community supervision for a period of five years.  Appellant’s community supervision was later modified by agreement, the modification extending the period of community supervision for an additional one year.  Among the terms and conditions of community supervision applicable to appellant, two are the focus of the State’s motion to revoke: term and condition four requiring appellant to report to the Community Supervision and Corrections Officer each month and term and condition 20 requiring appellant to complete 400 hours of community service on a community service project as assigned by the supervision officer.  The State’s motion to revoke community supervision alleged that appellant failed to report on two specified months and that appellant had failed to complete the 400 hours of community service as required. 

            At the hearing on the State’s motion to revoke, appellant pleaded true to the allegations contained in the motion. After hearing evidence regarding the circumstances surrounding the violation of the terms and conditions of community supervision, the trial court found the allegations to be true and sentenced appellant to serve 18 months in an SJF. 

            Appellant appeals, contending that term and condition 20 is invalid and that the evidence is insufficient to support the trial court’s judgment regarding appellant’s violation of term and condition 20.  We disagree with appellant and will affirm the judgment of the trial court.

Standard of Review

            An order revoking community supervision is reviewed under an abuse of discretion standard of review.  See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006).  Further, we examine the evidence in a light most favorable to the trial court’s order. See Pena v. State, No. 07-10-00206-CR, 2011 Tex. App. LEXIS 653, at *4 (Tex.App.—Amarillo January 28, 2011, no pet.) (mem. op., not designated for publication) (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981)). A plea of true, standing alone, is sufficient to support a revocation of community supervision.  See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979).  A revocation may be founded upon the trial court’s determination that there was a violation of a single term and condition of community supervision.  See McCollum v. State, 784 S.W.2d 702, 704 (Tex.App.—Houston [14^th Dist.] 1990, pet. ref’d). 

 

Analysis

            Appellant pleaded true to both allegations contained in the State’s motion to revoke.  The trial court heard the evidence and found that appellant had violated both the terms and conditions alleged in the State’s motion to revoke. Therefore, even were we to assume that appellant’s contention regarding term and condition 20 was correct, which we do not, there would still be a term and condition that appellant was found to have violated.  Appellant has not appealed the trial court’s determination that she violated her reporting term and condition.  Accordingly, the trial court’s finding stands.  See id.  The trial court did not abuse its discretion in finding that appellant violated her reporting requirements.  Rickels, 202 S.W.3d at 763.

Term and Condition 20

            Because of our disposition of this matter, we need not address appellant’s allegations regarding term and condition 20.  See Tex. R. App. P. 47.1.

Conclusion

            Having determined that the trial court did not abuse its discretion in revoking appellant’s community supervision, we affirm the judgment of the trial court.

 

                                                                                                Mackey K. Hancock

                                                                                                            Justice

Do not publish.

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[1]  See Tex. Health & Safety Code Ann. § 481.115(a) (West 2010).