Billy Mitchell King v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-17-00439-CR
__________________
BILLY MITCHELL KING, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 411th District Court
San Jacinto County, Texas
Trial Cause No. 12,070
__________________________________________________________________
MEMORANDUM OPINION
Billy Mitchell King appeals from a jury verdict that resulted in his conviction
for possessing methamphetamine, a controlled substance. In three issues, King
argues (1) the trial court erred by denying his motion to suppress, (2) the evidence
the jury considered in his trial failed to prove he possessed the methamphetamine
found by police during their search of a travel-trailer parked next to his home, and
1
(3) King’s attorney provided King with ineffective assistance during his trial. For
the reasons below, we affirm.
Background
Viewed in the light most favorable to the verdict, 1 the evidence shows that
one evening in July 2016, Joshua James, a deputy employed by the San Jacinto
County Sheriff, responded to a report about a suspicious woman seen approaching
the caller’s home. Deputy James responded to the call. When he arrived at the
caller’s home, the caller told him the woman went across the street to a travel-trailer
parked next to her neighbor’s home. The caller also informed the deputy that a man
named Paul Thornhill “was wanted” and he could be found “at the address across
the street.”
From another officer, Deputy James learned that a warrant had been issued
for Thornhill’s arrest. And the caller told the deputy that King, the owner of the
house across the street, was using the one-bedroom trailer as his home. At trial, King
agreed that he had “care, custody, and control” of the trailer next to his home.
1
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (explaining
“the reviewing court is required to defer to the jury’s credibility and weight
determinations” when reviewing a claim that argues the evidence fails to support the
jury’s verdict).
2
After speaking to the caller, Deputy James crossed the street and spoke to the
woman who the caller had reported to the police. He asked to get the others in the
trailer to come outside. Three people, including King, exited the trailer. When
Deputy James asked King if anyone else was in the trailer, King responded: “No.”
The deputy asked King if he could “go make sure[,]” and King told him “to go ahead,
that it was okay.”
Deputy James and another officer entered the trailer to see if Thornhill was
inside. According to Deputy James, he did not know how big Thornhill was. When
the deputy entered the trailer’s bedroom he saw “something bundled under the
blanket” on the bed. Deputy James testified he thought a person might be under the
blanket, so he lifted the blanket off the bed. Underneath the blanket, Deputy James
saw a “silver colored grinder” that contained a substance the deputy believed to be
marijuana. The deputy also saw an open pink case containing a syringe, two spoons,
and two bottles like those used for pills.
After Deputy James left the trailer, he told the other officers there to detain
the woman along with the other three people he saw exit the trailer. The four
individuals were advised of their rights.2 Two of them refused to talk to police. King,
2
See Miranda v. Arizona, 384 U.S. 436, 474 (1966).
3
however, told police that the marijuana they found was his. King then signed a
document that authorized police to search the trailer for drugs.
Deputy James re-entered the trailer. He inspected the contents of the pill
bottles in the pink case. In one, he found a baggie that contained a crystal-like
substance. The other contained a “rolled up joint[.]” One of the other officers on the
scene tested the substance in the baggie. The field test was positive for
methamphetamine.
The police arrested the four individuals and took them to jail. A lab later tested
the crystal-like substance in the baggie. The report on the test shows the
methamphetamine and the baggie weigh 1.21 grams. In December 2016, a grand
jury indicted King for possessing between one and four grams of methamphetamine.
Before King’s trial, King’s attorney never moved to suppress the evidence
obtained by police when they searched the trailer. At trial, the attorney asked to
suppress the evidence, but only after the evidence obtained in the search was already
before the jury and after both parties had rested in the case. When King finally
moved to suppress the evidence obtained by police in the search, he argued the
evidence showing the police found drugs in the trailer was inadmissible because the
police obtained the evidence without King’s valid consent and without a warrant.
Without explanation, the trial court denied King’s oral motion to suppress.
4
Sufficiency Issue
Standard of Review
For convenience, we address King’s second issue first. To determine whether
the record contains enough evidence to support a defendant’s conviction, we view
the evidence the jury considered in the trial in the light that most favors the verdict
and determine whether the evidence before the jury reasonably supports the jury’s
verdict under a standard of beyond reasonable doubt.3 This standard “recognizes the
trier of fact’s role as the sole judge of the weight and credibility of the evidence after
drawing reasonable inferences from the evidence.”4 As a reviewing court, our role
is to determine “whether the necessary inferences made by the trier of fact are
reasonable, based upon the cumulative force of all of the evidence.” 5
In reviewing a jury’s verdict, we presume the jury resolved conflicting
inferences that may exist in the evidence to uphold the verdict if doing so is
reasonable.6 By favoring the verdict the jury reached, the reviewing court must be
3
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see also Brooks, 323
S.W.3d at 902.
4
Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).
5
Id.; see also Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012).
5
deferential to the jury’s right to determine whether evidence is (or is not) credible.7
And the jury also has the right to decide what weight it wants to give the evidence
before it in reaching its verdict.8 Put another way, we may not sit as a thirteenth juror
in the appeal and substitute our views for the jury’s. 9 Moreover, when the parties
disagree about the logical inferences available from the evidence the jury considered,
if two reasonable views of the evidence exist—one that allows the jury to convict
and the other to acquit—we must again defer to the decision the jury reached. 10 That
said, a jury cannot arrive at its verdict based on “mere speculation or factually
unsupported inferences or presumptions.” 11
While the State bears the burden of proving a criminal case beyond a
reasonable doubt, it need not introduce direct evidence to establish the defendant is
6
Brooks, 323 S.W.3d at 922; see also Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
7
See Brooks, 323 S.W.3d at 899.
8
Id.
9
Id.
10
Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).
11
Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
6
guilty of the crime. 12 Instead, the law merely requires that the evidence “point
directly and independently to the defendant’s guilt.”13 The reviewing court will find
the evidence sufficient when “the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.”14
Analysis
To prove the defendant possessed a controlled substance, the State must prove
the defendant possessed the substance identified in the indictment and establish the
defendant knew the substance was one that the State controls.15 Possession is defined
as “actual care, custody, control, or management.” 16 To prove the unlawful-
possession element for the crime of possessing methamphetamine, the State must
prove two things: (1) the defendant exercised care, custody, control, or management
over the methamphetamine; and (2) the defendant knew the substance was
methamphetamine. 17 Here, since the trailer in which the police found the
12
Id.
13
Id. at 13 (cleaned up).
14
Id.
15
See Tex. Health & Safety Code Ann. § 481.115(a).
16
Tex. Penal Code Ann. § 1.07(a)(39) (Supp.).
7
methamphetamine was not exclusively in King’s possession at the time of his arrest,
the State also has the burden to show that King’s connection to the
methamphetamine “was more than just fortuitous.”18 This is the affirmative links
rule, which requires the State to link the accused to the contraband if the police find
the contraband in a location not exclusively under the defendant’s control.19
Examples of categories of the types of affirmative links that may establish the
accused possessed the contraband include the following:
• the accused’s presence when the police conducted the search;
• whether the contraband was in plain view;
• the accused’s proximity to and the accessibility of the narcotic;
• whether the accused was under the influence of narcotics when
arrested;
• whether the accused possessed other contraband or narcotics when
arrested;
• whether the accused made incriminating statements when arrested;
• whether the accused sought to flee;
• whether the accused made furtive gestures;
• whether there was an odor of contraband;
• whether other contraband or drug paraphernalia were present;
• whether the accused owned or had the right to possess the place where
the police found the drugs;
• whether the drugs the police found were enclosed;
17
See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011)
(cleaned up).
18
Id.
19
Id.
8
• whether the accused had a large amount of cash in his possession when
the police arrested him; and
• whether the accused’s conduct shows he was consciousness of his
guilt.20
The number of links proven in a given case are not dispositive of whether
enough evidence is before the jury to support the defendant’s conviction on a charge
alleging he possessed an illegal drug.21 And the State need not disprove every
conceivable alternative theory the defendant may argue during his trial to convince
the jury the State failed to prove he possessed the controlled drugs.22
Here, the evidence allowed the jury to conclude that King exercised care,
custody, control, or management over the methamphetamine in the trailer. First,
King linked himself to the marijuana on the bed: He told the police the marijuana in
the trailer was his. Second, the marijuana in the bottle was in the same pink case
with the bottle that contained the baggie of methamphetamine. Third, the marijuana
and the methamphetamine in the bottles were packaged similarly, both substances
were in bottles used for pills. Fourth, King was inside the trailer when police arrived,
and nothing shows he did not have access to the bedroom there. Fifth, the jury could
20
See Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016).
21
See Evans, 202 S.W.3d at 162.
22
Tate, 500 S.W.3d at 413.
9
have concluded that King had a greater right than his guests to possess the bedroom
based on the evidence the jury heard showing that King was living there.
We conclude the combined and cumulative force of the evidence allowed the
jury to conclude that King intentionally or knowingly possessed the
methamphetamine in the bedroom of his trailer. 23 We overrule King’s second issue.
Ruling on Motion to Suppress
In issue one, King argues the trial court erred when it denied his motion to
suppress. But King failed to file a timely motion to suppress the evidence police
obtained in the search. King’s oral motion was not timely, as he moved to suppress
the evidence from the search only after the jury heard all the evidence presented in
the case.24 By then, the officers had testified about the drugs they found in King’s
trailer.
When King moved to suppress the evidence from the search, both parties had
rested in the case. The State argued King waived his request to suppress the evidence
23
See Evans, 202 S.W.3d at 162; see also Brooks, 323 S.W.3d at 902 n.19.
24
Tex. R. App. P. 33.1(1) (as a prerequisite to presenting a complaint to a
reviewing court, requiring the parties to make a timely request, objection, or motion
in the trial court that states the grounds for the ruling the party seeks) (emphasis
added); see also Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004).
10
because he failed to lodge a timely objection to the testimony the jury heard in the
trial. We agree with the State.
Several reasons exist for the rule requiring parties to make timely and specific
objections to evidence in trials. As a practical matter, the trial court needs to know
the reasons a party wants to object to evidence so the other party can consider
whether the matter could be proven with other evidence.25 And requiring objections
to evidence before the jury hears it prevents exposing the jury to evidence it should
not consider in deciding the issues of fact needed to reach a verdict in the trial. 26
Generally, a defendant must file a timely motion to suppress evidence the
defendant wants the trial court to exclude in his trial.27 When the defendant’s request
is untimely, he forfeits the right he would have otherwise had to complain about the
fact the jury heard the evidence he failed to timely object to in the trial. 28
25
See Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977).
26
Garza, 126 S.W.3d at 82.
27
Krause v. State, 243 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d).
28
Nelson v. State, 626 S.W.2d 535, 536 (Tex. Crim. App. 1981) (concluding
the defendant’s motion to suppress, filed after the parties rested, was untimely and
preserved nothing for appellate review).
11
Here, King waited until both parties rested before raising any question about
the admissibility of the evidence from the search. We hold King failed to preserve
his complaint the evidence was inadmissible based on his argument the police
conducted an illegal search.29
Ineffective Assistance
In issue three, King argues he received ineffective assistance of counsel
resulting in a denial of his right to counsel. King claims the attorney who represented
him in his trial was ineffective because he (1) failed to explain sufficiently that, based
on the allegations in the indictment alleging he committed other crimes, he would
not qualify for probation or to secure his release from jail before the trial by using a
bond; (2) failed to argue that King did not know and had no control over the
methamphetamine discovered in the search; (3) failed to make an opening statement
and made only a “very limited” closing argument; (4) failed to file a timely motion
to suppress; (5) failed to argue in presenting his motion to suppress that King had
not voluntarily consented to the search; (6) failed to ask King to provide a sample of
his hair, which King argues could have been tested to determine whether he used
methamphetamine; (7) failed to have an independent lab test the substance in the
baggie to confirm whether it contained methamphetamine; (8) failed to have finger
29
Tex. R. App. P. 33.1(1).
12
print testing done on various items of evidence to see if King’s fingerprints were on
them; (9) failed to argue the State did not prove each element required to show he
possessed methamphetamine; and (10) failed to present any evidence to contradict
the State’s evidence about the weight of the crystal-like substance in the baggie
recovered by police.
To establish a claim of ineffective assistance of counsel, the defendant must
show that the performance of his attorney fell below an objective standard of
reasonableness, and that, but for counsel’s alleged error, the outcome of the
proceedings would have probably been different. 30 When making an ineffective
assistance of counsel claim, the defendant bears the burden to develop the facts
needed to show the attorney who represented the defendant in his trial was
ineffective based on the standards identified by the United States Supreme Court in
Strickland.31 Generally, to prove a claim of ineffective assistance, the defendant
must overcome the “strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance.” 32
30
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
31
See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing
Strickland, 466 U.S. at 689).
32
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing
Strickland, 466 U.S. at 689).
13
The record before us, however, shows King never filed a motion for new trial.
For that reason, King’s attorney never had the opportunity to answer the complaints
King raises about him for the first time on appeal. Generally, when the defendant
failed to raise his claim of ineffective assistance in the trial court, the record available
to the reviewing court in the defendant’s appeal is rarely sufficient to allow the
defendant to show that his trial attorney committed errors violating the standards
governing attorneys established by Strickland.33 Ordinarily, the defendant
complaining about the conduct of his trial attorney should allow his attorney an
opportunity to explain the actions the defendant is criticizing before the reviewing
court denounces the conduct as ineffective.34 If no explanation exists, the appellate
court should not find the attorney provided ineffective assistance unless the record
establishes the conduct was “so outrageous that no competent attorney would have
engaged” in the conduct that is at issue in the appeal.35
On this record, we cannot tell why King’s trial attorney engaged in the conduct
that King complains about in his appeal. With one exception, King’s criticisms about
33
Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).
34
Id.
35
Id. (cleaned up).
14
his attorney may be explained as matters relating to trial strategy. But explaining
away most of the criticism under a theory of trial strategy fails to explain why a
competent attorney would wait until the evidence closed before presenting a motion
to suppress the evidence police obtained in their search of King’s trailer.36
In any event, even were we to assume the standards of reasonable professional
assistance obligated King’s attorney to move to file a timely motion to suppress the
evidence from the search, King must still establish that by filing a timely motion, he
“more likely than not” would have achieved a different result in his case.37 Thus, he
must show the trial court would have likely granted his motion to suppress had he
presented his motion promptly.
Under the Fourth Amendment, citizens enjoy the right “to be secure in their
persons . . . against unreasonable searches and seizures.” 38 Unless the search falls
within certain well-defined exceptions, searches the police conduct without warrants
are, per se, unreasonable. 39 Voluntary consent is one of these exceptions, and it
36
Strickland, 466 U.S. at 690.
37
Id. at 693.
38
U.S. CONST. amend. IV; see also Tex. Const. art. I, § 9.
39
Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012).
15
allows the police to search a defendant’s premises when the defendant consents to
the search without first obtaining a warrant. 40 When construed in a way that supports
the trial court’s ruling denying King’s motion to suppress, the evidence shows King
consented to Deputy James’ request to enter the trailer to see if Thornhill was there.
And the evidence supports the trial court’s implied finding that King voluntarily
signed the consent-to-search form, as his signature is on it and it allowed the police
to re-enter the trailer and search for drugs. Thus, the evidence available to the court
supports the trial court’s ruling that King voluntarily consented to the searches at
issue in his appeal. 41
Our conclusion is supported by Jackson v. State, 42 a case decided in 1998 by
the Court of Criminal Appeals. In Jackson, the defendant complained that his trial
attorney failed to provide him effective assistance because the attorney failed to
challenge the legality of the defendant’s arrest.43 Jackson appealed. On appeal, the
court of appeals concluded Jackson’s arrest was illegal and reversed his conviction.44
40
Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010).
41
See Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012).
42
973 S.W.2d 954 (Tex. Crim. App. 1998).
43
Id. at 955.
16
But the State appealed to the Court of Court of Criminal Appeals, which explained
that to prevail on appeal, Jackson had to burden of proving prejudice by proving that
had he filed a timely request, his “motion to suppress would have been granted.”45
According to the Court, to meet that burden Jackson needed to establish the evidence
in the record showed the police engaged in improper conduct. 46
Here, nothing in the record required the trial court to conclude the police
engaged in improper conduct when they secured King’s consent for the two searches
conducted in his trailer. Instead, the record shows Deputy James obtained King’s
consent to enter the trailer to search for Thornhill. After finding drug paraphernalia
in the trailer’s bedroom, Deputy James obtained King’s written consent to re-enter
the trailer and search it for drugs. On this record, King has failed to establish that he
likely would have prevailed on a motion to suppress had one been timely filed.47
For that reason, we cannot sustain King’s complaint that his attorney’s failure
to promptly move or object to exclude the evidence from the searches conducted by
44
See Jackson v. State, 921 S.W.2d 809 (Tex. App.—Houston [14th Dist.]
1996), rev’d, 973 S.W.2d at 957.
45
Jackson, 973 S.W.2d at 957.
46
Id.
47
Id.
17
the police prejudiced the outcome of his trial. And we conclude that King failed to
establish he received ineffective assistance of counsel for any of the other reasons
identified in his appeal. 48 We overrule King’s third issue.
For the reasons explained above, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on April 16, 2019
Opinion Delivered November 13, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
48
See Valtierra, 310 S.W.3d at 448.
18