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NO. 07-03-0255-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MAY 28, 2004
______________________________
TEDDY W. CARTER, II, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-400267; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J. (1)
MEMORANDUM OPINION Following a plea of not guilty, appellant Teddy W. Carter, II was convicted by a jury of aggravated sexual assault and punishment was assessed at 52.5 years confinement. In presenting this appeal, counsel has filed an Anders (2) brief in support of a motion to withdraw. We affirm and grant counsel's motion to withdraw.
In support of his motion to withdraw, counsel has certified that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se brief if he desired to do so. Appellant did file a pro se response; however, the State did not favor us with a brief.
Appellant was charged with two counts of sexually assaulting his eight-year-old daughter. The State elected to proceed on only count one of the indictment which allegedly occurred on March 12, 2002. At the time of the incident, the victim (A.C.), her mother, and appellant, who is her biological father, were sleeping on the living room floor. A.C.'s mother was recovering from recent oral surgery and had taken pain medication during the night. According to A.C.'s testimony, she awakened when appellant grabbed her arms, picked her up, and re-positioned her on her side with her back against his front. Appellant turned A.C. face up and rubbed her front "private part" over her clothing. He then pushed the leg opening of her underwear to the side and penetrated her vagina with his finger.
The following morning while appellant was getting ready for work, A.C. told her mother of the incident, who confronted appellant a few days later while A.C. and her siblings were not home. A police report was filed shortly thereafter and A.C. was examined by a sexual assault nurse who testified that the evidence showed A.C. had experienced some type of digital penetration. A.C. also spoke with a forensic interviewer at the Children's Advocacy Center about the incident.
Appellant voluntarily gave a statement in which he denied the incident but admitted he had an alcohol problem and had "no conscious knowledge of doing this." Several days after the alleged assault, he apologized to A.C. at her grandparents' home and told her he never meant to hurt her and would never intentionally hurt her.
By the Anders brief, counsel advances six arguable grounds, to-wit: (1) the trial court erred in overruling appellant's objections to the admission of evidence of a prior act committed by him against the victim; (2) the trial court failed to grant appellant's motion for mistrial after it was discussed with Juror Belinda Bridges that she and witness Patricia Salazar, a sexual assault nurse, worked in the same department of the Health Science Center; (3) the trial court erred in denying appellant's objections to the jury verdict of 52.5 years by reaching its decision by lot or compromise; (4) the evidence was legally insufficient; (5) the evidence was factually insufficient; and (6) trial counsel failed to provide effective assistance of counsel.
By a two-count indictment, appellant was charged with aggravated sexual assaults that occurred on or about March 11, 2002, and February 11, 2002. Prior to voir dire, the State explained to the court that it was proceeding on count one of the indictment (March 11 incident) and reserving count two for a later prosecution. Defense counsel requested that the State not be permitted to mention count two to which the State responded it would only be offered as an extraneous offense. The trial court announced, "We'll take that up as it comes up." The court also advised defense counsel to make a proper objection at the proper time regarding the extraneous offense.
Just prior to A.C. taking the stand, the State attempted but failed to obtain a favorable ruling on admission of the extraneous offense during the guilt/innocence phase. The following morning, the State revisited the issue of admitting the extraneous offense through A.C.'s testimony. Defense counsel renewed his objection that the extraneous matter be admissible only during the punishment phase. The objection was overruled.
During the guilt/innocence phase, without any objections from defense counsel, evidence of the extraneous offense was introduced on at least three occasions. A.C. testified that the first time an assault occurred she had a headache and appellant was supposed to rub her head and instead put his hand on her "front private" and began rubbing. A.C.'s mother testified that when A.C. told her about the March incident she also told her about a prior incident that allegedly occurred approximately one month earlier. Finally, the sexual assault nurse who examined A.C. testified that A.C. told her appellant had assaulted her twice.
When the State attempts to adduce evidence of extraneous offenses, the defendant must make a timely objection to preserve error for appellate review. Tex. R. App. P. 33.1(a)(1); see also Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Cr.App. 1990) (on reh'g). As counsel concedes in the Anders brief, he cannot in good faith advance an argument that the admission of the extraneous offense was erroneous.
Counsel's second arguable point addresses the trial court's failure to grant a mistrial after it was discovered that juror Bridges and a witness both worked at the Health Science Center. Counsel further advances argument regarding the trial court's failure to grant a mistrial when the State asked the person who interviewed A.C. at the Children's Advocacy Center whether A.C.'s statements were true and reliable.
During the trial, the State discovered that juror Bridges worked in the same department as the sexual assault nurse that was scheduled to testify. Out of an abundance of caution, Bridges was questioned on voir dire and explained that she did not work in the same building as the nurse and had no prior knowledge of the case. She also testified she could be fair and impartial and would not have any bias for or against the nurse's testimony. Defense counsel's request for mistrial was denied.
The denial of a motion for mistrial is reviewed for abuse of discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Cr.App. 2003). In denying the motion, the trial court announced that both sides had ample opportunity to question Bridges about her occupation during voir dire. The trial court concluded that because Bridges testified she had no prior knowledge of the case and could be fair and impartial, it was not a problem for her to serve as a juror. Thus, the court did not abuse its discretion in denying appellant's motion.
Counsel also argues that the State's question asking for an opinion from the interviewer at the Children's Advocacy Center regarding the truth and reliability of A.C.'s statements was improper. Two of defense counsel's objections to the State's questions were sustained. However, counsel did not request any other relief. The proper sequence for preserving error in the admission of improperly offered evidence is to (1) timely object; (2) obtain a ruling; (3) move for an instruction to disregard; and (4) move for mistrial. De Russe v. State, 579 S.W.2d 224, 236 (Tex.Cr.App. 1979). Defense counsel did not preserve this complaint for review and because all the relief requested was granted, no complaint may be entertained on appeal regarding the testimony of the interviewer regarding the truth and reliability of A.C.'s statements. McCoy v. State, 10 S.W.3d 50, 55 (Tex.App.-Amarillo 1999, no pet.).
Another arguable ground advanced by counsel is the trial court's denial of appellant's request for a mistrial following the jury's punishment verdict of 52.5 years confinement. Defense counsel argued the verdict was reached by lot. Any allegation of jury misconduct must be raised by motion for new trial and supported by a juror's affidavit. Dugard v. State, 688 S.W.2d 524, 529 (Tex.Cr.App. 1985), overruled on other grounds, 780 S.W.2d 802 (Tex.Cr.App. 1989); see also Tex. R. App. P. 21.3. Although appellant raised jury misconduct in the jury's verdict of 52.5 years confinement by motion for new trial, the motion was unaccompanied by an affidavit. Thus, no error is presented in the trial court's denial of a motion for new trial.
Counsel also evaluates the legal and factual sufficiency of the evidence in determining that no good faith argument can be advanced. A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of a child younger than 14 years of age by any means. Tex. Pen. Code Ann. § 22.021(a)(1)(B) & (a)(2)(B) (Vernon Supp. 2004). Moreover, the testimony of a child sexual assault victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Pamph. Supp. 2004); Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd). The jury is the exclusive judge of the facts and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon Pamph. Supp. 2004). A.C. testified in detail that appellant rubbed her "front private part" over her clothing and then pushed the leg opening of her underwear aside and penetrated her vagina with his finger. A.C.'s mother testified as an outcry witness that A.C. described the incident to her the following morning. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Pamph. Supp. 2004). The medical evidence also supported A.C.'s claim of digital penetration. Thus, reviewing the evidence under Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979), and Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000), we agree with counsel that sufficient evidence was presented to support appellant's conviction.
Finally, counsel evaluates numerous instances of ineffective assistance of trial counsel both in acts of commission and omission. He concludes, however, that claims of ineffective assistance of counsel will most likely be fruitless under the standard of review required by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Counsel further adds that as the Court noted in Mitchell, rarely will the record on direct appeal be sufficient to show that counsel's conduct was so deficient as to meet the first prong of Strickland as the "reasonableness of counsel's choices often involves facts that do not appear in the record." 68 S.W.3d at 642. An application for a post-conviction writ of habeas corpus is the appropriate manner in which to raise and develop claims based on ineffective assistance of counsel. Id.
By his pro se response, appellant asserts eight errors in the trial court, to-wit: (1) error in the admission of his statement; (2) error in the admission of an extraneous offense; (3) the prosecution withheld testimony that would have established his innocence; (4) the evidence is legally and factually insufficient; (5) improper and prejudicial opinion testimony from a State's witness on the truth and reliability of A.C.'s statements; (6) prosecutorial misconduct in "name calling" and inflammatory remarks; (7) denial of the right of allocution prior to the imposition of sentence; and (8) ineffective assistance of counsel. Contentions two, four, five, and eight were reviewed under counsel's arguable grounds and we need not address them again.
By his first contention, appellant alleges error in the admission of his voluntary statement. We disagree. Within two weeks of A.C. being assaulted, appellant voluntarily went to the police department to give a statement. The detective who interviewed him testified that although appellant was not in custody he was read his rights prior to giving his statement. In addition to admitting he had an alcohol problem, appellant stated:
There will not be another time that my daughter comes in and sleeps with us. I don't even know that I did this. I am not saying that my daughter is lying, but I have no conscious knowledge of doing this.
During the detective's testimony, the State offered appellant's statement into evidence to which defense counsel replied, "[n]o objection."
To preserve error for appellate review in the admission of a defendant's statement, a timely objection is required. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1). Defense counsel affirmatively stated he had no objection to the admission of appellant's statement. Thus, the contention is not preserved for review.
Appellant next contends the prosecution withheld testimony that would have established his innocence. He argues that A.C. told witnesses for the State that appellant was asleep at the time he allegedly assaulted her and that only on cross-examination was she questioned on the matter.
Under article 2.01 of the Texas Code of Criminal Procedure, a district attorney shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused. However, it is defense counsel's duty and not the prosecutor's to ask questions calculated to elicit the desired information. Cf. Armstrong v. State, 897 S.W.2d 361 (Tex.Cr.App. 1995) (finding no juror misconduct because defense counsel did not ask the questions necessary to bring out the desired information). Moreover, during A.C.'s cross-examination defense counsel asked several times whether appellant was asleep. Three times she answered that she did not know and in response to the following, "Are you pretty sure he was asleep when this happened, though," she replied, "I think so." The record does not establish that the State acted improperly in its examination of A.C. Appellant's contention is without merit.
By his sixth contention appellant asserts prosecutorial misconduct in "name calling" and inflammatory remarks, and by his seventh complaint contends he was denied the right of allocution prior to the imposition of sentence. We disagree with both contentions. Appellant complains of the prosecutor's final remarks during jury argument when she stated, "we will not tolerate child molesters." No objection was made to the comment. To preserve error in improper jury argument, a defendant must object, request an instruction to disregard, and move for mistrial. Cockrell v. State 933 S.W.2d 73, 89 (Tex.Cr.App. 1996); Cook v. State, 858 S.W.2d 467, 473 (Tex.Cr.App. 1993). Error, if any, was not preserved for review.
Article 42.07 of the Texas Code of Criminal Procedure provides that before pronouncing sentence, the defendant shall be asked whether he has anything to say why sentence should not be pronounced. Appellant contends he was denied this right. The record, however, demonstrates that after announcing the sentence, the court asked, "[i]s there any reason why sentence should not be pronounced today other than what you've suggested already"? Defense counsel answered, "[n]o, sir." This contention is also meritless.
By the Anders brief, counsel raised numerous claims of ineffective assistance of trial counsel and relying on recent decisions from the Court of Criminal Appeals conceded that the claims are difficult to review on direct appeal. Appellant raises 18 claims of ineffective assistance in his pro se response, some of which overlap with counsel's. As stated previously, the appropriate vehicle for developing a record to support ineffective assistance claims is by filing a post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004). However, there is no right to counsel to mount a collateral attack on a conviction. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); Ex parte Graves, 70 S.W.3d 103, 111 (Tex.Cr.App. 2002).
We have also made an independent examination of the entire record to determine whether there are any other arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). We have found no non-frivolous issues and agree with counsel that the appeal is without merit. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
style='text-align:center'>____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Jammie Lee Moore, was convicted of possession of a controlled substance, methamphetamine, in an amount of more than 4 grams but less than 200 grams.[1] The jury found that the possession occurred within a drug free zone.[2] After finding the enhancement allegations contained within the indictment true, the jury assessed appellants punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for 30 years. Appellant appeals contending that the evidence is legally and factually insufficient to support the conviction. We affirm.
Factual Background
On April 6, 2007, appellant and his girlfriend, Maria Antionette Garcia (Garcia), went to spend the evening and night at a motel in Amarillo. After arriving at the motel, at the suggestion of appellant, they went to a bar in Amarillo known as No Dogs Allowed. They went to the bar, according to Garcia, so that appellant could meet someone. Upon arriving at the bar, the person appellant was to meet was not present. Drinks were ordered and appellant walked away from the bar to talk on his cell phone. When the drinks were served, Garcia tipped the bartender a dollar from the change. This made appellant angry and words were exchanged with Garcia. Garcia got up and went outside the bar. Upon exiting the bar, appellant pushed Garcia down to the ground. Appellant then continued to yell at Garcia.
After leaving the bar, appellant and Garcia went back to the motel, where appellant continued to yell at her. Appellant was again unable to contact the person he was to meet and, in a fit of anger, kicked a table that struck Garcia. Following this, the two packed their belongings and went back to the house at 938 Dahlia Street in Amarillo. Once they returned to the house, appellant dropped Garcia off and left in his vehicle.
When Garcia thought appellant had left, she placed a 911 call and reported appellants assault and told the 911 operator that appellant is in a green vehicle and has a weapon. While Garcia was talking to the 911 operator, she heard appellant come back to the house and hung up the phone. The 911 operator called back and Garcia answered and hung the phone up, telling appellant that it was a wrong number. Garcia testified she did this because appellant was standing right in front of her and she was afraid of him.
Within a matter of moments, the Amarillo police arrived at the residence. Officer Moore testified that, as he approached the door, he heard shouting and a womans scream. When Moore knocked on the door, Garcia came through it stating Hes inside. Officer Moore could see appellant in the hallway immediately adjacent to the living room. Moore quickly detained appellant and placed him in the backseat of his patrol car. Moore testified that he got appellants identifying information and, during the process, appellant stated that the green car was his. Moore further testified that he saw a methamphetamine pipe sitting on a table in the living room. He also observed a small black bag sitting on the same table. Because the call was initially regarding a domestic dispute, Moore interviewed Garcia and took a statement from her. From his interview with Garcia, Moore learned that there was a gun and narcotics in the house. Garcia told Moore that the gun and narcotics belonged to appellant. Moore then collected the evidence. He found the gun in the kitchen in a zipper bag sitting on a counter. When Moore opened the black case he found on the living room table, it contained what he thought to be methamphetamine, marijuana, digital scales, plastic baggies, and batteries.
After Moore had collected the evidence, he went to his patrol car to put the evidence in the trunk of his patrol car. During this time, appellant was yelling at Moore and, after he deposited the evidence in the trunk, Moore sat in the drivers seat and opened the sliding window to the back seat. At this time, appellant stated that the gun and methamphetamine found in the house did not belong to him. Appellant further stated that the drugs and gun belonged to Garcia and he was just peddling the dope for her. Appellant was subsequently arrested for possession of a controlled substance.
During the trial, the State produced the testimony of the Amarillo Police Department employee that took the evidence into custody and subsequently delivered it to the Department of Public Safety lab. The director of the lab testified that testing showed that the contents of the three baggies, suspected to be methamphetamine, did test positive as methamphetamine with a total weight of 63.31 grams. The larger sample was found to contain a high level of a cutting agent, whereas the two smaller samples contained substantially more pure methamphetamine. Also testifying for the State was Deputy Christy Phillips of the Potter County Sheriffs Office. As part of Phillipss duties, she supervises inmate telephone calls. Phillips testified that all calls from the Potter County Detention Center are recorded. She then identified States exhibit 20 as a CD of telephone calls made by appellant. The exhibit was partially played for the jury. Among the subjects discussed by appellant in the telephone calls was that he had kicked a table that hurt Garcias leg. Further, appellant acknowledged that one of the bags of contraband weighed 47 to 48 grams and that half of it was fake. Appellant also acknowledged using the scales to weigh the larger bag.
After the State presented its evidence, appellant presented the testimony of the manager of the motel where Garcia claimed that she and appellant checked in. The witness testified that the records of the motel did not reveal anyone checking in on the day in question under appellants or Garcias name. Further, Garcia had testified that the table appellant kicked, which struck her leg, was a glass topped table. The manager stated that the motel had no glass top tables in any of the rooms of the motel.
After receiving the courts charge, the jury found appellant guilty of the offense of possession of methamphetamine of at least four grams but less than 200 grams and found that the possession occurred in a drug free zone. Subsequently, having found that both enhancement paragraphs of the indictment were true, the jury assessed appellants punishment at confinement in ID-TDCJ for 30 years. Appellant appeals the judgment contending that the evidence is legally and factually insufficient to connect him to the methamphetamine in question. We will affirm.
Sufficiency of the Evidence
Appellant challenges both the legal and factual sufficiency of the evidence. Therefore, we are required to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).
Standard of Review
In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jurys verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We measure the legal sufficiency of the evidence against a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).
When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finders determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jurys verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jurys verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The Court of Criminal Appeals has recently declared that, when reviewing the evidence for factual sufficiency, the reviewing court should measure the evidence in a neutral manner against a hypothetically correct jury charge. Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)).
Legal Sufficiency
Appellant contends that the State failed to present legally sufficient evidence linking him to the methamphetamine. To prove appellant guilty of the indicted offense, the State had to prove: 1) appellant; 2) intentionally or knowingly; 3) possessed; 4) a controlled substance, methamphetamine; 5) in an amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(d). Possession means the actual care, custody, control, or management of the methamphetamine in question. See id. § 481.002(38). To prove that appellant possessed the methamphetamine in question, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The evidence establishing possession may be direct or circumstantial, however, it must establish that appellants connection to the methamphetamine was more than just fortuitous. Id. at 405-06. There must be evidence, other than presence alone, that would lead the fact finder to rationally conclude beyond a reasonable doubt that appellant exercised care, custody, control, or management of the methamphetamine. See Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006).
In Evans, the Texas Court of Criminal Appeals set forth a list of links that had been recognized by Texas courts. Id. at 162 n.12. The list is non-exclusive and includes the following:
1) the defendants presence when a search is conducted; 2) whether the contraband was in plain view; 3) the defendants proximity to and the accessibility of the narcotic; 4) whether the defendant was under the influence of narcotics when arrested; 5) whether the defendant possessed other contraband or narcotics when arrested; 6) whether the defendant made incriminating statements when arrested; 7) whether the defendant attempted to flee; 8) whether the defendant made furtive gestures; 9) whether there was an odor of contraband; 10) whether other contraband or drug paraphernalia were present; 11) whether the defendant owned or had the right to possess the place where the drugs were found; 12) whether the place where the drugs were found was enclosed; 13) whether the defendant was found with a large amount of cash; and 14) whether the conduct of the defendant indicated a consciousness of guilt.
Id. It is not the number of links found to be present that is ultimately important, rather it is the logical force of all of the evidence, both direct and circumstantial. Id. at 162.
In reviewing the evidence before the jury, the first matter to consider is that appellant was present where the contraband was found. He was in the house approximately 10 to 15 feet from the table where the black bag containing the contraband was found. The methamphetamine was, however, not in plain view. Rather, it was located inside the closed black bag. The testimony of Garcia was that the bag belonged to appellant. Appellants brief seems to posit that the bag could have belonged to Garcia, yet the only testimony before the jury was that it belonged to appellant. Appellant contends that he denied any possession of the bag or methamphetamine to the police officers and that they reported this in their reports. While this statement is true, it must be considered in light of the later admission that appellant made to Officer Moore. After Moore had placed the evidence in the trunk of his patrol car, he went to the front seat and opened the sliding window into the back seat, where appellant was seated, and appellant stated that the gun and the methamphetamine found in the house did not belong to him and that he was just peddling the dope for his girlfriend. The jury could well have viewed this as an admission to possession of the methamphetamine. Also, nothing in the record reveals how appellant had knowledge of what items were found in the house other than having prior knowledge of their existence. Thus, this statement was a conscious acknowledgment of guilt and that he was aware that the matter possessed was contraband. Additionally, there are the recorded jail house telephone calls. One of the calls talks about the gun in question and another mentions that appellant knew that the larger bag of methamphetamine was half fake. The lab supervisor for the DPS testified that the larger bag was approximately one-half cutting agent. The recorded phone calls also contain an admission by appellant that he had kicked a table that struck Garcia on the leg. This was consistent with Garcias testimony about what occurred at the motel. Finally, Officer Moore testified that appellant admitted that the green car parked at the house was his and the only set of keys found at the location were lying on the table next to the black bag where the methamphetamine was found.
As part of our analysis of the evidence, we first must remember that it is not the number of links found that is important, rather it is the logical force of the links established by the evidence that controls the ultimate issue. Id. The links to appellant may be demonstrated by direct or circumstantial evidence. Poindexter, 153 S.W.3d at 405-06. Further, when we review this evidence in the light most favorable to the verdict, as we must in a legal sufficiency review, we cannot say that the jury acted irrationally in finding appellant guilty beyond a reasonable doubt of possession of methamphetamine as charged in the indictment. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Appellants issue regarding the legal sufficiency of the evidence is overruled.
Factual Sufficiency
We next review the evidence in a neutral manner to determine whether the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. Watson, 204 S.W.3d at 415. When making a factual sufficiency review, we are mindful that the jury has already passed on the evidence and their conclusions are entitled to deference when supported by the evidence. Id. at 417. Further, we cannot simply supplant the jurys verdict because we might disagree with it, rather we must be able to state with particularity where the deficiency in the evidence to support the jurys determination exists. Id.
Appellant contends that the evidence is factually insufficient for the same reasons he claimed that the evidence was legally insufficient, a failure of the evidence to link him to the methamphetamine in question. However, the evidence is factually sufficient, even when viewed in a neutral light, for the same reasons that the evidence was legally sufficient. Id. at 415.
Appellant asserts two primary reasons that the evidence is factually insufficient and we will address those concerns. Sims, 99 S.W.3d at 603. First, appellant spends a significant portion of his brief outlining all of the various Evans factors that do not link him to the methamphetamine. Such an analysis, while correct, misses the mark. As stated in Evans, it is not the number of links that is important, rather it is the logical force of the links that are found that control the issue. Evans, 202 S.W.3d at 162. Here, there are a number of links that the evidence did not support, however, nowhere in appellants brief is there a mention of the fact that appellant made a directly incriminating statement to Officer Moore. Likewise, there is no mention of the recorded telephone conversations from jail that a jury could rationally believe indicate that appellant knowingly possessed the drugs on the night in question.
Second, appellant posits that the police chose to believe Garcias statement that the drugs were not hers, even though she was seated directly in front of the drugs. However, there are two problems with appellants contention. The evidence was that Garcia had come out the front door and did not return to the house until appellant was in custody. Therefore, this situation is not similar to the facts of Evans, where the defendant was seated in front of drugs that were in plain view when the police arrived. Further, Garcias testimony reflected that, prior to the polices arrival, she was not seated directly in front of the black bag, rather she was on another sofa located in the living room of the house.
Finally, appellant points out a number of inconsistencies in Garcias testimony and opines that these show the evidence to be factually insufficient. However, the position taken by appellant invites the court to ignore that the jury heard this testimony and resolved any conflicts and discrepancies against appellant. This is the jurys province and we cannot say that there is no support for their conclusion in the record. Id.
Accordingly, we find that the evidence is factually sufficient to support the jurys verdict and that the verdict is not against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 417. Appellants issue regarding the factual sufficiency of the evidence is overruled.
Conclusion
Having overruled appellants issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
[1] See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon Supp. 2009).
[2] See Tex. Health & Safety Code Ann. § 481.134(c)(1) (Vernon Supp. 2009).
Document Info
Docket Number： 07-03-00255-CR
Filed Date： 5/28/2004
Precedential Status： Precedential
Modified Date： 9/7/2015