Damon S. Kiel v. State ( 2006 )

In The  

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-05-459 CR ____________________

DAMON S. KIEL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 93234

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MEMORANDUM OPINION

Appellant Damon S. Kiel was indicted for possession of a controlled substance in an amount of at least one gram and less than four grams. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon 2003). A jury convicted Kiel and assessed punishment at seventeen years of confinement. ⁽¹⁾ In this appeal, Kiel raises five issues for our consideration. We affirm.

The Evidence

Trooper Jack Crawford testified that on June 29, 2004, while he was working traffic control on Highway 69, he observed Kiel driving without wearing a seat belt. Trooper Crawford decided to stop Kiel, so Trooper Crawford activated his overhead lights and followed Kiel. Kiel pulled into the driveway of an automobile dealership, and Trooper Crawford pulled in behind him, approached the vehicle, and asked Kiel to step to the rear of the vehicle. ⁽²⁾ Trooper Crawford then told Kiel the purpose of the traffic stop and checked Kiel's driver's license and vehicle registration. Trooper Crawford noticed that Kiel "was immediately nervous, seemed very hyper, . . . overly excited and not - I don't mean excited as in a good mood, just overly nervous. As he handed me his driver's license, he was shaking uncontrollably. . . ." Trooper Crawford opined that "you can definitely distinguish . . . between somebody who just doesn't want a seat belt ticket and somebody who typically has something else going on." According to Trooper Crawford, Kiel paced nervously and was "constantly putting his hands in his pocket and taking them out, stretching - which, again, is another sign of nervousness - sign of fight or flight, whether they're either trying to fight you or run from you."

Suspecting that Kiel's vehicle contained something illegal,Trooper Crawford asked Kiel whether the vehicle contained various illegal items and asked for permission to search the vehicle. Trooper Crawford testified that when he asked Kiel about illegal narcotics, Kiel's

demeanor changed from staring at the floor and answering, "No", to when I specifically asked about cocaine, he still replied, "No", but he snapped up. He snapped his head up and looked at me and replied, "No, sir", which, again, through training is another occasion of what potentially you could be looking specifically for if they answer your questions differently.

Kiel told Trooper Crawford that he did not object to having his vehicle searched, but he wanted to return to the vehicle first.

Trooper Crawford testified that Kiel became more nervous as the stop continued, and Trooper Crawford began to feel threatened, so he attempted to detain Kiel. According to Trooper Crawford, Kiel "immediately began to actively resist." When Trooper Crawford attempted to place Kiel in handcuffs, Kiel jerked away, so Trooper Crawford attempted to bring Kiel to the ground. Kiel managed to escape, and he began running toward his vehicle. After Kiel again ran toward his vehicle, Trooper Crawford took out his pepper spray and sprayed Kiel two or three times, but the spray did not have an immediate effect. Trooper Crawford decided to allow Kiel to reach the vehicle, and Kiel began to flee by pulling the vehicle further into the parking lot of the automobile dealership. While following Kiel, Trooper Crawford saw him get out of his vehicle and dive beneath a parked vehicle on the car lot. At that point, Trooper Crawford drew his pistol and ordered Kiel to the ground, but Kiel refused to comply. Trooper Crawford eventually placed Kiel in handcuffs and read him his Miranda warnings.

Trooper Crawford observed a clump of paper towels beneath the vehicle under which Kiel had dived. Trooper Crawford testified that the clump of paper towels was within Kiel's reach. According to Trooper Crawford, when he asked Kiel what he had thrown from his vehicle, Kiel "denied any knowledge of what I was talking about whatsoever." When Trooper Crawford unraveled the clump of paper towels, he saw a substance he suspected was cocaine. Trooper Crawford did not find narcotics in Kiel's vehicle or on Kiel's person. Trooper Crawford booked Kiel into the jail and placed the substance in a secured evidence locker. Trooper Stephanie Davis testified that she took the evidence to the crime laboratory for analysis. Camille Stafford, a criminalist in the drug section of the Texas Department of Public Safety Crime Lab, testified that she analyzed the substance and determined it was cocaine. Stafford testified that the cocaine weighed 23.71 grams.

Issue Two

In his second issue, Kiel argues the "evidence was legally insufficient to sustain the conviction due [to] the absence of affirmative links connecting the Appellant to possession of the contraband." In performing a legal sufficiency review, an appellate court must view all of the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).

"To prove unlawful possession of a controlled substance, the State must first prove appellant exercised actual care, control and management over the contraband and second, that appellant had knowledge the substance in his possession was contraband." Nixon v. State, 928 S.W.2d 212, 215 (Tex. App.--Beaumont 1996, no pet.) (citing King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995)). The State need not prove exclusive possession of the contraband, since control over contraband may be jointly exercised by more than one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). However, "mere presence at a place where contraband is being used or possessed by others does not justify finding that a person is in joint possession or is a party to an offense." Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd).

When an accused is not in exclusive possession of the location where contraband is found, additional independent facts and circumstances must affirmatively link him to the contraband. Nixon, 928 S.W.2d at 215. An affirmative link may be established through either direct or circumstantial evidence, and it must show that the accused's connection to the contraband was more than fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). Factors which tend to establish affirmative links include:

(1) the contraband was in plain view;

(2) the accused was the owner of the premises in which the contraband was found;

(3) the contraband was conveniently accessible to the accused;

(4) the contraband was found in close proximity to the accused;

(5) a strong residual odor of the contraband was present;

(6) paraphernalia to use the contraband was in view or found near the accused;

(7) the physical condition of the accused indicated recent consumption of the contraband in question;

(8) conduct by the accused indicated a consciousness of guilt;

(9) the accused had a special connection to the contraband;

(10) the place where the contraband was found was enclosed;

(11) the occupants of the premises gave conflicting statements about relevant matters; and

(12) affirmative statements connect the accused to the contraband.  

Nixon, 928 S.W.2d at 215. "It is . . . not the number of links that is dispositive, but rather the logical force of all the evidence, direct and circumstantial." Evans v. State, No. PD-1911-05, 2006 WL 2686552, at *2 (Tex. Crim. App. Sept. 20, 2006).

In this case, Trooper Crawford found the cocaine within Kiel's reach, beneath a car under which Kiel had dived moments before. Both Kiel's unusually nervous demeanor during what began as a routine traffic stop and his attempt to evade detention indicated consciousness of guilt. We conclude that sufficient affirmative links exist in this case. Compare Nixon, 928 S.W.2d at 215. The evidence is legally sufficient to support the verdict. Accordingly, we overrule issue two.

Issue One

In his first issue, Kiel contends the prosecutor "conducted improper voir dire of the jury when he used a 'hypothetical' fact situation in his voir dire regarding the Appellant in possession of the drugs having thrown down the contraband to the ground, where the 'hypothetical' was factually specific to the case on trial." Kiel complains of the following exchange that occurred during the State's voir dire:

[PROSECUTOR]: Do you think I'm in possession of this pen right now? (Indicating)

[A JUROR]: Yes.

[PROSECUTOR]: Pretty obvious; right? Right here in my hand. Anyone disagree . . . that I'm in possession of this pen? I know it's a silly example, but anyone disagree?

[UNKNOWN JURORS]: No.

[PROSECUTOR]: Okay. Why? Why do you think I'm in possession?

[JUROR]: You're holding it in your hand.

. . . .

[PROSECUTOR]: . . . I'm in control of it. It's very obvious. Now, (indicating). Still think I'm in possession? It's what you feel?

[JUROR]: No.

[PROSECUTOR]: No. Well, did I exercise control by throwing it?

[JUROR]: Yes.

[PROSECUTOR]: Okay. So, I'm still - - By the definition, I'm still in control; correct?

[JUROR]: Yes.

[PROSECUTOR]: I exercised - -

Kiel's counsel lodged the following objection: "Your Honor, I'm going to object to that. That's an attempt to commit the prospective juror to a specific fact circumstance." The trial court sustained counsel's objection and instructed the panel to disregard the prosecutor's comment.

We first address the State's contention that Kiel's issue on appeal does not comport with his trial objection. Although Kiel's statement of his first issue appears to raise the issue of whether the State's hypothetical that was factually identical to the case was improper, Kiel's argument under issue one also discusses the State's alleged attempt to commit the jury to a particular factual scenario. This discussion comports with Kiel's objection. Therefore, we find that Kiel has not waived the issue.

As previously noted, the trial court sustained Kiel's objection to the prosecutor's comments and instructed the panel to disregard them. Assuming without deciding that the prosecutor's comments constituted error, the trial court's instruction to disregard cured any error and rendered it harmless. See Cates v. State, 752 S.W.2d 175, 176 (Tex. App.--Dallas 1988, no pet.); Tex. R. App. P. 44.2. Therefore, we overrule issue one.  

Issues Three and Four

Issues three and four assert that the evidence is legally and factually insufficient "due to a fatal variance" because the indictment alleged possession of one to four grams of cocaine, but the evidence adduced at trial indicated the cocaine weighed twenty-three grams. We address these issues together.

We must first determine whether a material variance existed between the indictment and the evidence at trial. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). In analyzing whether a variance is material, we must determine whether the indictment informed Kiel of the charge against him sufficiently to allow him to prepare an adequate defense, as well as whether prosecution under the allegedly deficient indictment would subject Kiel to the risk of another prosecution for the same crime. See Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001). The burden of demonstrating surprise or prejudice resulting from the variance rests with Kiel. See Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001). Nothing in the record demonstrates that Kiel was surprised at trial by the evidence that the amount of cocaine recovered was twenty-three grams, or that Kiel was unable to prepare a defense. Evidence supporting the offense alleged in the indictment was adduced at trial; that is, the evidence was legally and factually sufficient to show that Kiel possessed at least one to four grams of cocaine. The evidence simply showed that he possessed more cocaine than alleged in the indictment. ⁽³⁾ Furthermore, we see no possibility that Kiel will be subjected to the risk of another prosecution for this offense. Therefore, we find Kiel has failed to establish that the variance was material. We overrule issues three and four.

Issue Five

In issue five, Kiel contends "[t]he case should be reversed for a new punishment hearing due to the prosecutor's improper argument . . . urging the jury to punish the appellant with a significant sentence in order to send a message to the community." Kiel complains of the following portion of the State's closing argument:

Well, y'all, he's rewarding you all - this community - our citizens that live in this place by being in possession of not an insignificant amount of cocaine again.

. . . .

So, when you go back there and you make that decision, you get to act as a representative sample of your community and say, what is this worth in my community, what is it worth to me and my loved ones - the people around this area? Do we care enough about our community to hold somebody responsibility [sic] for bringing this junk into our homes - into our lives because that's what he's doing. He's affecting all of us in this area bringing this garbage. And not once y'all, twice. This is the second time.

To preserve error on appeal, a defendant must object to the allegedly improper jury argument comment and pursue the objection until the trial court rules adversely. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The record reflects Kiel's counsel did not object to the prosecutor's closing argument. Therefore, nothing has been preserved for our review. See Cockrell, 933 S.W.2d at 89; Tex. R. App. P. 33.1(a). We overrule issue five and affirm the judgment of the trial court.

AFFIRMED.

____________________________

STEVE MCKEITHEN

Chief Justice

Submitted on September 21, 2006

Opinion Delivered October 18, 2006

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1.

Kiel was sentenced as a repeat offender.

2. Trooper Crawford indicated that his vehicle's on-board camera recorded the stop of Kiel, and the tape was played at trial.

3.

Kiel does not contend he was punished for possessing more than four grams of cocaine.