Derrick Lee Thomas v. State ( 2015 )

ACCEPTED
01-14-00332-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/14/2015 1:36:23 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00332-CR
In the
Court of Appeals FILED IN
1st COURT OF APPEALS
For the HOUSTON, TEXAS
First District of Texas 1/14/2015 1:36:23 PM
At Houston CHRISTOPHER A. PRINE
Clerk

No. 1386629
In the 262nd District Court
Of Harris County, Texas

DERRICK LEE THOMAS
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
ABBIE MILES
State Bar No: 24072240
Assistant District Attorney
Harris County, Texas
Jim O’Donnel
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests
oral argument only if oral argument is requested by the appellant.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Complainant, victim, or aggrieved party:
State of Texas
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Abbie Miles  Assistant District Attorney on appeal
Jim O’Donnel  Assistant District Attorney at trial
Appellant or criminal defendant:
Derrick Lee Thomas
Counsel for Appellant:
Maverick J. Ray  Counsel on appeal
Audrie Lawton  Counsel at trial
Trial Judge:
Hon. Denise Bradley  Presiding Judge
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT……………………...………..i
IDENTIFICATION OF THE PARTIES……………………………………...……i
INDEX OF AUTHORITIES……………………………………..………………..iii
STATEMENT OF THE CASE……………………………………………..………1
STATEMENT OF THE FACTS…………………………………..………………..1
SUMMARY OF THE ARGUMENT……………………………………..………....3
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
The trial court did not err in denying appellant’s motion to suppress because the
search of appellant’s vehicle was supported by probable cause since Officer Parker
observed crack cocaine in plain view on the driver’s seat of appellant’s vehicle while
Officer Parker was standing outside the vehicle at a lawful vantage point……………5
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED
Appellant has not preserved any claim that the trial court’s comments to the venire
lowered the State’s burden because he failed to object at trial, and the comments did
not indicate a bias or partiality. The trial court’s comments did not confuse the jury or
lower the State’s burden because the comments simply encouraged the venire to use
their common sense when determining if the State has proven the case to each
beyond a reasonable doubt to each individual juror. Further, appellant has
inadequately brief this point of error regarding an alleged jury charge error by
providing no authority for the proposition that the instruction on the burden of proof
in this case was erroneous. Regardless, the instruction in this case does not define
beyond a reasonable doubt, or comment on the evidence, and is thus not error.
Appellant cannot establish that he suffered any harm as a result of the trial court’s
statements in voir dire or the jury instruction regarding the burden of proof because
appellant failed to argue that he suffered harm, and thus impliedly concedes there was
no harm, and the evidence of appellant’s guilt was overwhelming.................................12
ii
REPLY TO APPELLANT’S THIRD ISSUE PRESENTED
However, the trial court did not abuse its discretion in admitting State’s Exhibit 4 and
5, the evidence envelope and the crack cocaine rocks contained therein, because the
chain of custody was conclusively established by Officer Parker who testified that he
retrieved the evidence, tagged it for transport to the laboratory, then retrieved the
exhibits and brought them to court for trial……………………………………...…23
REPLY TO APPELLANT’S FOURTH ISSUE PRESENTED
The evidence that appellant possessed the crack cocaine rocks is legally sufficient
because of appellant’s close proximity and accessibility to the narcotics, appellant was
seen gesturing suspiciously in the area of where the drugs were found, the narcotics
were found in plain view where appellant was sitting, and appellant was acting
nervous......................................................................................................................................29
CONCLUSION…………………………………..………………………………..37
CERTIFICATE OF SERVICE………………………………………………….....38
iii
INDEX OF AUTHORITIES
Cases
Abdnor v. State,
871 S.W.2d 726 (Tex. Crim. App. 1994). ....................................................................... 12
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984) ........................................................................ 13
Alvarado v. State,
912 S.W.2d 199, 207 (Tex. Crim. App. 1995)................................................................ 30
Anderson v State,
414 S.W.3d 251 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). ........................... 15
Arizona v. Gant,
556 U.S. 332, 351 (2009). ........................................................................................... 10, 11
Barnes v. State,
424 S.W.3d 218, (Tex. App.-Amarillo 2014, no pet.) ................................................. 10
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010)(plurality op.)................................................. 30
Cade v. State,
795 S.W.2d 43 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) ............................. 17
Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000). ........................................................................... 6
Carriere v. State,
84 S.W.3d 753 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) ........................ 20, 21
Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007)................................................................ 31
Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001) .................................................................. 30
iv
Copeland v. State,
No. 14–07–00475–CR, 2008 WL 4735199 (Tex. App.--Houston [14th Dist.] Oct.
30, 2008, pet. ref'd) (mem. op., not designated for publication) ................................. 19
Davis v. State,
313 S.W.3d 317 (Tex. Crim. App. 2010). ........................................................................ 23
Dahlem II v. State,
322 S.W.3d 685 (Tex. App.—Fort Worth 2010, pet ref’d)...................................... 9, 10
Dewberry v. State,
4 S.W.3d 735, 740 (Tex. Crim. App. 1999) .................................................................... 31
Dickey v. State,
96 S.W.3d 610 (Tex. App.—Houston [1st Dist.] 2002, no pet.). ................................... 9
Dossett v. State,
216 S.W.3d 7 (Tex. App.—San Antonio 2006, pet ref ’d). ............................................ 24
Ennis v. State,
71 S.W.3d 804 (Tex. App.—Texarkana 2002, no pet.). ................................................. 29
Evans v. State,
202 S.W.3d 158 (Tex. Crim. App. 2006) ........................................................................ 32
Ford v. State,
158 S.W.3d 488 (Tex.Crim.App. 2005) ............................................................................ 5
Fuentes v. State,
991 S.W.2d 267 (Tex. Crim. App.1999) ................................................................... 14, 30
Fuller v. State,
363 S.W.3d 583 (Tex. Crim. App. 2012) ........................................................................ 15
Garcia v. State,
246 S.W.3d 121 (Tex. App.—San Antonio 2007, pet. ref’d) ....................................... 20
Geesa v. State,
820 S.W.2d 154 (Tex. Crim. App. 1991 ......................................................................... 19
v
Guzman v. State,
955 S.W.3d 85 (Tex. Crim. App. 1997). ........................................................................... 6
Haro v. State,
371 S.W.3d 262 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d) ....................... 14, 17
Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...................................................................... 31
James v. State,
264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet ref’d). ............................ 35
Lagrone v. State,
942 S.W.2d 602 (Tex. Crim. App. 1997). ....................................................................... 24
Latson v. State,
440 S.W.3d 119 (Tex. App.—Houston [14th Dist.] 2013, no pet.). ...................... 16, 18
Layton v. State,
280 S.W.3d 235 (Tex. Crim. App. 2009). ....................................................................... 13
Long v. State,
532 S.W.2d 591 (Tex. Crim. App. 1975) .......................................................................... 8
Mart. v. State,
173 S.W.3d 463 (Tex. Crim. App. 2005). ........................................................................ 23
Matson v. State,
819 S.W.2d 839 (Tex. Crim. App. 1991) ........................................................................ 31
Maxwell v. State,
73 S.W.3d 278 (Tex. Crim. App. 2002) ............................................................................ 5
Meadows v. State,
01-09-00443-CR and 01-09-00444-CR, 2010 WL 2874199 (Tex. App.—Houston
[1st Dist.] July 22, 2010, pet ref’d) ................................................................................... 18
Mendez v. State,
138 S.W.3d 334 (Tex. Crim. App. 2004). ....................................................................... 13
vi
Moore v. State,
907 S.W.2d 918 (Tex. App. --Houston [1st Dist.] 1995, pet. ref'd) ............................ 14
Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002). ......................................................................... 22
Murphy v. State,
112 S.W.3d 592 (Tex. Crim. App. 2003). ................................................................. 15, 18
Nichols v. State,
886 S.W.2d 324 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d). .............................. 7
Paulson v. State,
28 S.W.3d 570 (Tex. Crim. App. 2000). ................................................................... 19, 20
Poindexter v. State,
153 S.W.3d 402 (Tex. Crim. App. 2005) ........................................................................ 32
Pomier v. State,
326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet. h.) ................ 30
Reasor v. State,
12 S.W.3d 813 (Tex. Crim. App. 2000) ............................................................................ 7
Rogers v. State,
795 S.W.2d 300 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). ..................... 15, 18
Shaw v. State,
329 S.W.3d 645 (Tex. App.—Houston [14th Dist.] 2010, pet ref ’d) ...................... 24, 26
St. George v. State,
237 S.W.3d 720 (Tex. Crim. App. 2007) ...................................................................... 5, 6
State v. Betts,
397 S.W.3d 198 (Tex. Crim. App. 2013). ......................................................................... 7
Swarb v. State,
125 S.W.3d 672 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) ....................... 8, 9
Swearingen v. State,
101 S.W.3d 89, 96 (Tex. Crim. App. 2003) .................................................................... 31
vii
Texas v. Brown,
460 U.S 730 (1983).............................................................................................................. 7
United States v. Edwards,
166 F.3d 1362 (11th Cir. 1999). .................................................................................. 33, 34
United States v. Kitchen,
57 F.3d 516 (7th Cir. 1995) ......................................................................................... 33, 34
United States v. Majette,
326 Fed. Appx. 211, 213 (4th Cir. 2009) ......................................................................... 11
United States v. Sparks,
291 F.3d 683 (10th Cir. 2002) ........................................................................................... 10
Villani v. State,
116 S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d.) .......... 30, 31
Walter v. State,
28 S.W.3d 538 (Tex. Crim. App. 2000) ........................................................................ 8, 9
Wilder v. State,
111 S.W.3d 249 (Tex. App.—Texarkana 2003, pet ref’d) ............................................ 17
Will. v. State,
No. 07-01-0414-CR, 2003 WL 327601 (Tex. App.—Amarillo 2003, pet. ref’d) ...... 18
Wilson v. State,
71 S.W.3d 346 (Tex. Crim. App. 2002). ......................................................................... 13
Wyatt v. State,
23 S.W.3d 18, 30 (Tex. Crim. App. 2000) ...................................................................... 31
Zachery v. State,
No. 14-07-01050-CR, 2009 WL 136915 (Tex. App.—Houston [14th Dist.] 2009, no
pet.) ..................................................................................................................................... 17
Statutes
TEX. CODE OF CRIM. PROC. ANN. art. 36.19 (West 2012). ........................................ 13, 23
viii
TEX. CODE OF CRIM. PROC. art. 14.01. ................................................................................. 8
TEX. CONST. art. I, § 9 ........................................................................................................... 7
TEX. CONTROLLED SUB. ACT. § 481.115 (West 2013). .................................................... 32
TEX. TRANSP. CODE § 545.104 (West 2011) ........................................................................ 8
U.S. CONST. IV ....................................................................................................................... 7
Other Authorities
BLACK’S LAW DICTIONARY (9th ed. 2009). .......................................................................... 27
Rules
TEX. R. APP. P. 9.4(g) .............................................................................................................. i
TEX. R. APP. P. 33.01 ............................................................................................................ 13
TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i
TEX. R. APP. P. 39.1 ................................................................................................................. i
TEX. R. APP. P. 44.2(a) ......................................................................................................... 22
TEX. R. EVID. 901 ................................................................................................................. 23
ix
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with possession of a controlled substance, and in two
enhancement paragraphs, was alleged to have been previously convicted of assault of
a family member and possession of a controlled substance with intent to deliver (C.R
10; R.R.III 7). Appellant entered a plea of not guilty to the offense, and pleas of
“true” to both enhancement paragraphs (R.R.III 7, R.R.V 6). The jury found appellant
guilty, and the court assessed punishment at confinement for five years in the
Institutional Division of the Texas Department of Criminal Justice (R.R.IV 39, R.R.V
24, C.R.103)

STATEMENT OF FACTS
The State challenges all factual assertions in appellant’s brief and presents the
following account of the facts.
Officer Matthew Parker, of the Houston Police Department, was on duty May
6, 2013, on the north side of Houston in an area known for narcotics and gang
activity, when he pulled over a vehicle that failed to signal a left turn (R.R.III 15-17).
Once the car pulled over, Officer Parker approached the driver’s side window, and
asked the driver, Derrick Lee Thomas, appellant, for his driver’s license (R.R.VIII 17-
18). In the passenger seat of appellant’s vehicle sat Ed Galloway (R.R.III 17, 23).
While Officer Parker was talking to appellant, he sounded very nervous and his hands
were shaking (R.R.III 18). Officer Parker noticed that appellant’s right hand appeared
to be “cuffed” as if he was “holding onto something or concealing something”
(R.R.III 18-19). Officer Parker knew from his experience that people often try to
conceal narcotics in their hands in a similar way (R.R.III 19). Appellant used his right
hand that was “cuffed” to reach into his back right pocket to retrieve his wallet, and
as he did so his “cuffed” fingers appeared to open allowing him to drop something in
the area of his right thigh before retrieving his wallet1 (R.R.III 20).
Officer Parker’s suspicion that appellant was concealing narcotics persisted
after seeing appellant do this (R.R.III 22). Appellant gave Officer Parker his driver’s
license, and then Officer Parker asked appellant to step out of the vehicle in hopes of
retrieving what appellant dropped on the seat (R.R.III 22). As appellant got out of the
car, Officer Parker saw two white crack rocks on the driver’s seat (R.R.III 23, R.R.IV
17). Officer Parker pretended like he did not see the crack rocks and placed appellant
in the backseat of his patrol car2 (R.R.III 23-24).
Officer Parker returned to appellant’s vehicle, this time asking Mr. Galloway to
exit the vehicle (R.R.III 25). Mr. Galloway begins mumbling “as if he was concealing
something in his mouth” (R.R.III 25). Officer Parker knew from his experience that
Mr. Galloway was likely concealing narcotics in his mouth (R.R.III 25). Officer Parker
1
Officer Parker was able to observe appellant doing this despite the night time hour because he
shone his flashlight into appellant’s vehicle (R.R.III 20).
2
Although appellant was being detained, he was not yet placed in handcuffs (R.R.III 24).
2
told Mr. Galloway to open his mouth, which he did briefly, but then shut it “and
began to chew” (R.R.III 25-26). Mr. Galloway persisted in his chewing and swallowed
the substance in his mouth despite Officer Parker’s orders to the contrary (R.R.III
26). Officer Parker grabbed Mr. Galloway’s arm to handcuff him, but Mr. Galloway
resisted and a struggle ensued (R.R.III 26-27). Once Mr. Galloway chewed and
swallowed the substance in his mouth, Officer Parker was able to gain control of Mr.
Galloway and placed him and then appellant in handcuffs (R.R.III 27). A screwdriver3
with white residue was recovered from Mr. Galloway’s front pocket (R.R.III 28).
Officer Parker then retrieved the two white crack rocks appellant dropped on the
driver’s seat (R.R.III 31, R.R.IV 17). The total weight of the crack rocks was .18 grams
(R.R.IV 17).

SUMMARY OF THE ARGUMENT
The trial court did not err in denying appellant’s motion to suppress because
the search of appellant’s vehicle was supported by probable cause since Officer Parker
observed crack cocaine in plain view on the driver’s seat of appellant’s vehicle while
Officer Parker was standing outside the vehicle at a lawful vantage point.
Appellant has not preserved any claim that the trial court’s comments to the
venire lowered the State’s burden because he failed to object at trial, and the
3
A screwdriver is frequently used to remove the “brillo”, used as a filter, in a crack pipe (R.R.III
28-29).
3
comments did not indicate a bias or partiality. The trial court’s comments did not
confuse the jury or lower the State’s burden because the comments simply encouraged
the venire to use their common sense when determining if the State has proven the
case beyond a reasonable doubt to each individual juror. Further, appellant has
inadequately brief this point of error regarding any alleged jury charge error by
providing no authority for the proposition that the instruction on the burden of proof
in this case was erroneous. Regardless, the instruction in this case does not define
beyond a reasonable doubt, nor comment on the evidence, and is thus not error.
Appellant cannot establish that he suffered any harm as a result of the trial court’s
statements in voir dire or the jury instruction regarding the burden of proof because
appellant failed to argue that he suffered harm, and thus impliedly concedes there was
no harm, and the evidence of appellant’s guilt was overwhelming
The trial court did not abuse its discretion in admitting State’s Exhibit 4 and 5,
the evidence envelope and the crack cocaine rocks contained therein, because the
chain of custody was conclusively established by Officer Parker who testified that he
retrieved the evidence, tagged it for transport to the laboratory, then retrieved the
exhibits and brought them to court for trial.
The evidence that appellant possessed the crack cocaine rocks is legally
sufficient because of appellant’s close proximity and accessibility to the narcotics,
appellant was seen gesturing suspiciously in the area of where the drugs were found,
4
the narcotics were found in plain view where appellant was sitting, and appellant was
acting nervous.

REPLY TO FIRST POINT OF ERROR
Appellant argues that the trial court erred in overruling his motion to suppress
because Officer Parker did not have probable cause to search appellant’ s vehicle, and
Gant prohibited Officer Parker from searching the vehicle incident to arrest because
appellant and Mr. Galloway were handcuffed in the back of a patrol car and there was
no reasonable belief that Officer Parker could have found evidence of the crime of
failure to signal a turn inside the vehicle. However, Officer Parker had probable cause
to search the vehicle when he observed crack cocaine in plain view on the driver’s seat
when appellant got out of the vehicle, and Gant provides no limitations to Officer
Parker’s search of appellant’s vehicle since that search was supported by probable
cause.
Standard of Review
In reviewing the trial court’s denial of a motion to suppress, the proper
standard of review is a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725
(Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005);
Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). If the decision of the
trial court turns on the determination of historical facts, the appellate court gives
nearly complete deference to the trial court’s decision. St. George, 237 S.W.3d at 725.
5
This is especially true when the fact findings of the trial court are based on credibility
and demeanor of witnesses. Id. If the issue presented is a mixed question of fact and
law, the same level deference is given when resolving that issue if it turns on the
credibility and demeanor of witnesses. Guzman v. State, 955 S.W.3d 85, 89 (Tex. Crim.
App. 1997). Mixed questions of law and fact that do not turn on the credibility of
witnesses are reviewed de novo, as are pure questions of law. St. George, 237 S.W.3d at
725; Guzman, 955 S.W.2d at 89; Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.
App. 2000). The decision of the trial court should be sustained if it is supported by
any applicable theory of law. St. George, 237 S.W.3d at 725.
Analysis
Appellant filed a pretrial motion to suppress seeking suppression of all physical
evidence and statements of appellant and Mr. Galloway as obtained in violation of
appellant’s rights under Article 38.22 of the Texas Code of Criminal Procedure,
Article I §§ 9, 10, and 19 of the Constitution of the State of Texas, and the Fourth,
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution (C.R. 31-
32). At trial, during the testimony of Officer Parker, appellant re-urged his motion to
suppress, which the trial court denied, stating that “there was probable cause, […] it
appears that the officer testified it was in plain view[, and]…the officer’s testimony
regarding the traffic stop and his observations was credible and undisputed” (R.R.IV
13).
6
The Fourth Amendment of the United States Constitution and Article I,
Section 9 of the Texas Constitution protect against unreasonable searches and
seizures. U.S. CONST. IV; TEX. CONST. art. I, § 9; State v. Betts, 397 S.W.3d 198, 203
(Tex. Crim. App. 2013). A search conducted without a warrant supported by
probable cause is unreasonable with some specifically delineated exceptions. See Reasor
v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). In the present case, it is
undisputed that Officer Parker did not have a warrant to search appellant’s car.
An exception to the warrant requirement is the plain view doctrine which
requires that law enforcement (1) be legally present when making their observation
and (2) have probable cause to associate any visible evidence with criminal activity, or
put another way, that the incriminating nature of evidence be readily apparent. Walter
v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). An officer is at a lawful vantage
point when having legally made a traffic stop looks through the windows of the
vehicle into its interior. Texas v. Brown, 460 U.S 730, 739-40 (1983). An officer may
rely upon his training and experience in determining whether the item observed in
plain view is contraband. Brown, 460 U.S. at 746 (Powell, J. concurring)(citing United
States v. Cortez, 449 U.S. 411, 418 (1981); Nichols v. State, 886 S.W.2d 324, 326 (Tex.
App.—Houston [1st Dist.] 1994, pet ref’d).
Appellant concedes that Officer Parker had probable cause to conduct a traffic
stop for the offense of failure to signal a lane change, for which appellant could be
7
arrested.4 In it undisputed that Officer Parker seized crack cocaine that he observed in
plain view on the driver’s seat of the vehicle as appellant got out of the driver’s seat
(R.R.III 23). Contraband seen in plain view may be seized without a warrant. Brown,
460 U.S at 736-39 (when officer observed what appeared to be a drug balloon inside a
vehicle, he was permitted to enter the car, and seize it). Evidence found in plain view
does not constitute a search under the Fourth Amendment. See Walter, 28 S.W.3d at
531; Long v. State, 532 S.W.2d 591, 594 (Tex. Crim. App. 1975); See also Swarb v. State,
125 S.W.3d 672, 680 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) (there is no
invasion of privacy when something can be seen in plain view).
In the present case, Officer Parker conducted a traffic stop of appellant in an
area known for narcotics activity (R.R.III 15-17). Appellant appeared and sounded
nervous (R.R.III 18-19). With the assistance of Officer Parker’s flashlight, he
observed appellant appear to be concealing something in his hand, and then appeared
to try to surreptitiously drop the item on his seat while reaching for his wallet (R.R.III
18-20). Officer Parker knew from his experience that this behavior was consistent
with someone attempting to hide narcotics (R.R.III 19). Officer Parker then asked
appellant to step outside the vehicle5, and as appellant got up from his seat he
4
Appellant’s brief at 8. See TEX. TRANSP. CODE § 545.104 (West 2011); See also TEX. CODE OF
CRIM. PROC. art. 14.01.
5
Once a driver has legally been stopped for a traffic offense, the additional intrusion of asking
the driver to step outside of the vehicle is de minimis and thus does not offend the Fourth
Amendment. Maryland v. Wilson, 519 U.S. 408, 412 (1997) (citing Pennsylvania v. Mimms, 434
U.S. 106, 111 n.6 (1997) “[O]nce a motor vehicle has been lawfully detained for a traffic
violation, the police officers may order the driver to get out of the vehicle without violation the
8
observed what he knew, from his training and experience, to be two white crack
cocaine rocks (R.R.III 23).
The trial court could have reasonably concluded that because Officer Parker
had probable cause to search appellant’s car, a search warrant was not necessary.
Observation of contraband or evidence of a crime in plain view inside a vehicle can
be used to establish probable cause to seize the contraband or evidence. Dahlem II v.
State, 322 S.W.3d 685, 689 (Tex. App.—Fort Worth 2010, pet ref’d) (citing Colorado v.
Bannister, 449 U.S.1, 4 (1980)); See also Dickey v. State, 96 S.W.3d 610, 612 (Tex. App.—
Houston [1st Dist.] 2002, no pet.). Officer Parker’s observation of crack rocks on the
driver’s seat of the vehicle gave him probable cause to search the vehicle. Walter, 28
S.W.3d at 539-41. Officer Parker’s actions did not implicate the Fourth Amendment.
See Swarb, 125 S.W.3d at 680 (“[T]he officers…approached appellant’s vehicle in a
parking lot open to the public and shone a flashlight into appellant’s vehicle, there by
observing the methamphetamine in plain view…Looking inside the vehicle, even with
the use of a flashlight, does not implicate the Fourth Amendment”).
Appellant argues that Gant acts in this case to make Officer Parker’s entry into
appellant’s vehicle illegal because Officer Parker had “no reason to believe that
evidence for which [appellant] had been placed in custody- failure to signal turn (sic)-
would be found in the vehicle and since [appellant] and his passenger had been
Fourth Amendment’s proscription of unreasonable seizure.)); See also Rhodes v. State, 945
S.W.2d 115, 118-19 (Tex. Crim. App. 1997).
9
removed and secured in the police unit, there was no basis to believe that either would
be capable of reaching for a weapon or capable of destroying evidence.”6
In Arizona v. Gant, the Supreme Court held that law enforcement “may search a
vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment of the vehicle at the time of the search or it is
reasonable to believe that the vehicle contains evidence of the offense of arrest.” 556
U.S. 332, 351 (2009). Gant did not disturb the long standing rule that, if probable
cause exists that a vehicle contains evidence of criminal activity relevant to any
offense, then police may search any area of the vehicle where that evidence might be
found. Id. at 347 (citing United States v. Ross, 456 U.S. 798, 820-21 (1982)); See also Barnes
v. State, 424 S.W.3d 218, 225 (Tex. App.-Amarillo 2014, no pet.) (“But Gant did not
diminish the reach of the automobile exception”). Probable cause to search exists
when reasonably trustworthy facts and circumstances within the officer’s knowledge
on the scene would lead persons of reasonable prudence to believe that an
instrumentality of a crime or evidence pertaining to a crime will be found. Dahlem II,
322 S.W.3d at 689 (citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.
2007). An officer’s observation of contraband or evidence of a crime in plain view
inside an automobile can be used to establish probable cause to seize the contraband.
Id. at 689; United States v. Sparks, 291 F.3d 683, 690-91 (10th Cir. 2002)(“if an officer
has lawfully observed an object of incriminating character in plain view in a vehicle,
6
Appellant’s brief at 15.
10
that observation, either alone or in combination with additional facts, has been held
sufficient to allow the office to conduct a probable cause search of the vehicle.”).
Appellant cites Gant7 and Majette8 as authority for the proposition that appellant
was not within reaching distance of the passenger compartment of his vehicle9, but
those cases are factually distinguishable because in neither Majette nor Gant did
probable cause to search the vehicle exist, as it does in this case.
Appellant further argues that “[t]he subsequent search of [appellant’s] vehicle
was based upon [Officer Parker’s] hunch or suspicion and not upon his observation
of cocaine that he suspected [appellant] had dropped in the driver seat when he
reached and obtained his wallet from his back pocket.”10 Appellant’s argument that
the search was based only on Officer Parker’s suspicion that narcotics activity was
afoot completely ignores the fact that Officer Parker observed what he knew from his
training and experience to be crack cocaine on the driver’s seat prior to searching the
vehicle, thus providing him with probable cause to search (R.R.III 23). Because the
search of appellant’s vehicle was supported by probable cause since Officer Parker
saw appellant appear to drop something, and then saw crack rocks in plain view on
7
Gant, 556 U.S. at 335-336 (holding that a search of the defendant’s vehicle, when the defendant
was arrested and secured inside of a patrol car, violated the Fourth Amendment).
8
United States v. Majette, 326 Fed. Appx. 211, 213 (4th Cir. 2009) (holding that the search of the
defendant’s vehicle after the defendant had been arrested for driving with a suspended license
and secured in the back of a patrol car violated the Fourth Amendment).
9
Appellant’s brief at 11-15.
10
Appellant’s brief at 16-17.
11
the driver’s seat of appellant’s vehicle when he stood up, appellant’s point of error
should be overruled.
REPLY TO SECOND POINT OF ERROR
Appellant has not preserved any claim that the trial court’s comments to the
venire lowered the State’s burden because he failed to object at trial, and the
comments did not indicate a bias or partiality. Alternatively, the trial court’s
comments did not confuse the jury or lower the State’s burden because the comments
simply encouraged the venire to use their common sense when determining if the
State has proven the case beyond a reasonable doubt to each individual juror. Further,
appellant has inadequately brief this point of error regarding any alleged jury charge
error by providing no authority for the proposition that the instruction on the burden
of proof in this case was erroneous. Regardless, the instruction in this case does not
define beyond a reasonable doubt, or comment on the evidence, and is thus not
erroneous. Appellant cannot establish that he suffered any harm as a result of the trial
court’s statements in voir dire or the jury instruction regarding the burden of proof
because appellant failed to argue that he suffered harm, and thus impliedly concedes
there was no harm, and the evidence of appellant’s guilt was overwhelming
Standard of Review
In reviewing a claim of jury charge error, the reviewing court must first
determine whether error occurred. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim.
App. 1994). If the error is properly objected to, reversal is required if “some harm”
12
occurs. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); TEX. CODE OF
CRIM. PROC. ANN. art. 36.19 (West 2012). “Some harm” simply means that reversal is
mandated when it has any impact on the accused. Id. However, if the error is not
objected to at trial, reversal is required only when the accused “has not had a fair and
impartial trial.” Almanza, 686 S.W.2d at 171; TEX. CODE OF CRIM. PROC. ANN. art.
36.19 (West 2012). This type of error is referred to “egregious” or “fundamental
error.” Almanza, 686 S.W.2d at 171.
The entire record is examined considering the charge, the evidence, arguments
of counsel, weight of the evidence, contested evidence, and anything else that is
relevant in the record when looking for whether some harm or egregious harm
occurred. Id.
Preservation of error
To preserve error on appeal, a party must first have presented to the trial court
a timely request, objection, or motion that states the specific grounds for the desired
ruling if they are not apparent from the context of the request, objection, or motion.
TEX. R. APP. P. 33.01(a)(1); Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App.
2009). The error alleged on appeal must correspond to the objection made at trial.
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Further, the trial court
must have ruled on the request, objection, or motion, or the complaining party must
have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v.
State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A reviewing court should not
13
address the merits of an issue that has not been preserved for appeal. Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009); See also Brumit v. State, 206 S.W.3d 639, 644-
45 (Tex. Crim. App. 2006) (stating that the Court did not need to decide whether
objection was required to preserve alleged error on appeal when complained
comments of the trial court when record does not reflect that the comments reflected
any bias or lack of impartiality of the court).
In the present case, appellant did not object to the trial court’s voir dire on
proof beyond a reasonable doubt or to the charge (R.R.II 9-13, R.R.IV 24). Appellant
waived any error in the trial court’s statements during voir dire by not objecting to
them. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.1999) (holding that
appellant waived complaint about trial court's explanation of reasonable-doubt
standard during voir dire by failing to renew objection when trial court repeated
explanation); Moore v. State, 907 S.W.2d 918, 923 (Tex. App. --Houston [1st Dist.]
1995, pet. ref'd) (holding that appellant waived complaint about trial court's comment
during voir dire about weight of evidence); Haro v. State, 371 S.W.3d 262, 266 (Tex.
App.—Houston [1st Dist.] 2001, pet ref’d) (holding that the defendant waived error by
failing to object to the trial court’s comments on reasonable doubt because the error
was not fundamental). Because appellant failed to preserve error regarding the trial
court’s statements to the venire during voir dire, appellant’s point of error should be
overruled.
Analysis
14
If this Court chooses to address the merits of appellant’s claim, appellant is
wrong because the trial court’s comments did not confuse the jury or lower the State’s
burden because the comments simply encouraged the venire to use their common
sense when determining if the State has proven the case beyond a reasonable doubt to
each individual juror.
In Texas, courts do not define beyond a reasonable doubt. Fuller v. State, 363
S.W.3d 583, 586 (Tex. Crim. App. 2012); Anderson v State, 414 S.W.3d 251, 256 (Tex.
App.—Houston [1st Dist.] 2013, pet. ref’d). The term is meant to be understood in its
common meaning, so that “each juror must decide for himself what amount of proof
would constitute the threshold of beyond a reasonable doubt.” Murphy v. State, 112
S.W.3d 592, 597 (Tex. Crim. App. 2003). Jurors should use their common sense in
determining whether the standard of proof has been met. Rogers v. State, 795 S.W.2d
300, 306 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).
In the present case, during voir dire, the trial court instructed the panel that
there is no definition of beyond a reasonable doubt, but that physical evidence or the
testimony of one witness could be enough for a guilty verdict because its “the quality
of the evidence, not the quantity” that matters and the jury determines quality (R.R.II
9-10, 13).11
11
Appellant argues that “the trial court’s voir die and instruction to the jury equating ‘beyond a
reasonable doubt’ with respect to comments upon evidence in other cases that required one
witness, fingerprints, DNA, and no eyewitnesses which was satisfactory for juries to enter
15
Appellant argues that “by telling the jury there was no definition of ‘beyond a
reasonable doubt’ and that the appellate courts have left it up to each individual
‘jurors [sic] to determine their level of satisfaction beyond a reasonable doubt’ leaves
little question that this construction was confusing, ill-advised[,] and certainly
dangerous because of the likelihood that it had the effect taken to suggest that the jury
could convict based upon proof different from, and less rigorous than, the very high
standard set forth by the Supreme Court’s requirement of ‘a subjective state of near
certitude.’”12 However, the trial court’s statements were permissible and did not
confuse the venire or lower the State’s burden. See Latson v. State, 440 S.W.3d 119, 121
(Tex. App.—Houston [14th Dist.] 2013, no pet.).
In Latson, the trial court instructed the panel in voir dire that, although there
was no definition of beyond a reasonable doubt, it is whatever “kind of proof that
proves to [the jurors] individually…in your heart.” Id. The defendant argued on
appeal that, by telling the panel this, the trial court improperly defined beyond a
reasonable doubt. Id. Similarly, appellant argues in the present case that “the context
in which the trial court discussed the burden of proof and comments on other cases
verdicts beyond a reasonable doubt…worked to lower the State’s burden of proof.” (Appellant’s
brief at 23). This is factually inaccurate. During the trial court’s instruction on the burden of
proof it’s only reference to “other cases” was a reference to an episode of CSI, which was used
to illustrate that what happens on TV is not reality, not as an illustration to what constitutes proof
beyond a reasonable doubt (C.R. 12-13). Contrary to appellant’s argument, the trial court did not
give fact scenarios as to what evidence juries have found satisfactory to constitute proof beyond
a reasonable doubt, but only stated that it could be based on the “testimony of one single witness
if that witness is believed by the jurors to be credible, and they prove every element of the
offense beyond a reasonable doubt” or upon “physical evidence alone” (C.R. 13).
12
Appellant’s brief at 26-27.
16
and potential evidence worked to lower the State’s burden of proof… [to each juror’s]
‘[l]evel of satisfaction’ [which is] substantially below what the United States Supreme
Court [articulate] in its unanimous decision in Jackson v. Virginia, …[for] the need for
‘a subjective state of near certitude’…”13 In Latson, the Court held that the trial court’s
comments that beyond a reasonable doubt was what was in each juror’s “heart” was
not improper. Id; See also Haro v. State, 371 S.W.3d 262, 266 (Tex. App.—Houston [1st
Dist.] 2011, pet ref’d) (concluding that trial court’s comments during voir dire did not
taint the presumption of innocence when the trial court instructed the panel that
beyond a reasonable doubt is what each individual juror believes it to be); Wilder v.
State, 111 S.W.3d 249, 252-53 (Tex. App.—Texarkana 2003, pet ref’d) (holding that
prosecutor’s explanation that the State did not have to prove one hundred percent
certainty permissible). See also Cade v. State, 795 S.W.2d 43, 45 (Tex. App.—Houston
[1st Dist.] 1990, pet. ref’d) (concluding that trial court’s comment that reasonable
doubt test might be satisfied “somewhere between fifty and one hundred” on a scale
of one to 100 was not fundamental error because it did not “cause the jury to
misunderstand the reasonable doubt standard); See also Zachery v. State, No. 14-07-
01050-CR, 2009 WL 136915 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (not
designated for publication) (holding that trial court’s comment, that jurors would
know when they were convinced that someone had violated the law and when the
State had proved each element beyond a reasonable doubt, “did not belie an improper
13
Appellant’s brief at 23-24.
17
standard”); See also Williams v. State, No. 07-01-0414-CR, 2003 WL 327601 (Tex.
App.—Amarillo 2003, pet. ref’d) (not designated for publication) (finding that
prosecutor’s suggestion during voir dire that jurors use “common sense” to define
reasonable doubt, and trial court’s explanation that reasonable doubt is not proof
beyond all doubt, were not error).
In both the present case and in Latson, the trial court’s comments did not
indicate that appellant was guilty or apply the burden of proof to the facts of the
present case (R.R.II 9-10, 13). Latson, 440 S.W.3d at 121. The trial court also did not
shift the burden of proof to the defense (R.R.II 9-10, 13). Id. In fact, in the present
case, that trial court was clear that the State has “done the accusing, they have to do
the proving” and “defense counsel is not required to bring [the jury] any evidence”
(R.R.II 14).
Thus, when the trial court instructed the panel that they must decide if the
State has proven the case to each individual juror’s “level of satisfaction” it was simply
instructing the panel that “each juror must decide for himself what amount of proof
would constitute the threshold of beyond a reasonable doubt” using their common
sense. Murphy, 112 S.W.3d at 597; Roger, 795 S.W.2d at 306. See also Meadows v. State,
01-09-00443-CR and 01-09-00444-CR, 2010 WL 2874199, at *5 (Tex. App.—
Houston [1st Dist.] July 22, 2010, pet ref’d) (mem. op., not designated for publication)
(holding that trial court did not commit fundamental error in stating that beyond a
reasonable doubt was “whatever it means” to each juror, “kind of like obscenity, you
18
know it when you see it” because trial court’s statement did not convey opinion as to
defendant's guilt or innocence, and thus did not lower the State’s burden); See also
Copeland v. State, No. 14–07–00475–CR, 2008 WL 4735199, at *2 (Tex. App.--
Houston [14th Dist.] Oct. 30, 2008, pet. ref'd) (mem. op., not designated for
publication) (holding that the trial court did not abuse its discretion by overruling the
appellant's objection to prosecutor's statement that reasonable doubt is “whatever it
means to you”).
In the present case, the jury charge gave the following instruction regarding the
State’s burden of proof:
(1) The prosecution has the burden of proving the defendant guilty and it must
do so by proving each and every element of the offense charged beyond a
reasonable doubt and if it fails to do so, you must acquit the defendant.
(2) It is not required that the prosecution prove guilt beyond all possible doubt;
it is required that the prosecution’s proof excludes all reasonable doubt
concerning the defendant’s guilt.
(3) In the event you have a reasonable doubt as to the defendant’s guilt after
considering all the evidence before you, and these instructions, you will
acquit him and say by your verdict “Not Guilty.”
(C.R. 98). In Paulson, the Court overruled the requirement that a definition of
reasonable doubt be submitted to the jury as was required by the prior precedent in
Geesa14. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In evaluating
14
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) overruled by Paulson v. State, 820
S.W.2d 154 (Tex. Crim. App. 2000).
19
whether a jury charge violates Paulson, the reviewing court must to look to whether a
definition of reasonable doubt exists in the charge. Id. at 573.
Although appellant cites the standard of review for jury charge error and then
recites part of the court’s charge regarding the burden of proof,15 appellant offers no
authority or analysis on why this jury instruction was improper, and consequently any
jury charge error has been inadequately briefed. See TEX. R. APP. PROC. 38.1(i).
If this court chooses to address whether the jury charge contained error
regarding its instruction regarding proof beyond a reasonable doubt, the three
paragraphs listed above did not define beyond a reasonable doubt, and thus do not
violate Paulson. See Garcia v. State, 246 S.W.3d 121, 143 (Tex. App.—San Antonio 2007,
pet. ref’d) (holding that the same three paragraphs at issue in the present case “did not
constitute a definition of reasonable doubt and therefore did not violate
Paulson…[and thus] the trial court did not err by including the above language in the
charge). See also Carriere v. State, 84 S.W.3d 753, 759 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) (holding that the jury instruction that “[i]t is not required that the
prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s
proof excludes all reasonable doubt concerning the defendant’s guilt” was not error).
The instruction in the present case is not the type of instruction prohibited by Paulson.
Id. at 759; Paulson, 28 S.W.3d at 573. Paulson did not preclude trial courts from
15
Appellant’s brief at 17, 22.
20
submitting proper jury instructions that may be phrased differently. Carriere, 84
S.W.3d at 759-60.
Appellant has not preserved any claim that the trial court’s comments to the
venire lowered the State’s burden of proof because he failed to object at trial, and the
comments did not indicate a bias or partiality. Alternatively, the trial court’s
comments did not confuse the jury or lower the State’s burden because the comments
simply encouraged the venire to use their common sense when determining if the
State has proven the case beyond a reasonable doubt to each individual juror. Further,
appellant has inadequately brief this point of error regarding an alleged charge error
by providing no authority for the proposition that the instruction on the burden of
proof in this case was erroneous. Regardless, the instruction in this case does not
define beyond a reasonable doubt, or comment on the evidence, and is thus not error.
Appellant’s point of error should be overruled.
Harm
Appellant fails to argue that appellant suffered any harm from the trial court’s
alleged erroneous comments during voir dire or alleged erroneous instruction in the
jury charge regarding proof beyond a reasonable doubt.
Regarding the statements made by the trial court during voir dire regarding
beyond a reasonable doubt, under Texas Rule of Appellate Procedure 44.2(a), an
appellate court must reverse a judgment if the record reveals a constitutional error,
21
unless the court determines that the error did not contribute to the conviction or
punishment. See TEX. R. APP. P. 44.2(a).
A proper harm analysis regarding jury charge error looks at the degree of the
harm “in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel and any
other relevant information revealed by the record of the trial as a whole.” Almanza,
686 S.W.2d at 171. Since no objection was made to the jury charge, the record must
demonstrate egregious harm to give appellant the relief he requests (R.R.IV. 24).
Under either harm analysis, appellant suffered no harm from the trial court’s
comments or the instruction in the jury regarding proof beyond a reasonable doubt
considering the overwhelming evidence of appellant’s guilt. Motilla v. State, 78 S.W.3d
352, 357 (Tex. Crim. App. 2002). Appellant acted nervous and appeared to be
concealing narcotics (R.R.III 18-20). He then appeared to drop the object he was
hiding while reaching for his wallet (R.R.III 20). Appellant got up from his seat, and
the crack cocaine rocks were sitting on his seat near the area in which he appeared to
have dropped the object (R.R.III 23; R.R.IV 17). Appellant’s passenger also resisted
arrested and was in possession of drug paraphernalia (R.R.III 26-29). The jury
convicted appellant in an hour and fifteen minutes (C.R. 116). Appellant cannot say
he suffered any harm given the overwhelming evidence of his guilt. Id.
Appellant does not indicate where in the record harm occurred, nor any legal
authority for the proposition. This is either because he concedes that no harm
22
occurred, or because he failed to appropriately cite to the support for his contention
as required by Rule 38.1(i) of the Texas Rule of Appellate Procedure. Either way,
appellant’s point of error should be overruled.
REPLY TO THIRD POINT OF ERROR
Appellant argues that the trial court abused its discretion in admitting State’s
Exhibit 4 and 5 into evidence because the chain of custody was not proven. However,
the trial court did not abuse its discretion in admitting State’s Exhibit 4 and 5, the
evidence envelope and the crack cocaine rocks contained therein, because the chain
of custody was conclusively established by Officer Parker who testified that he
retrieved the evidence, tagged it for transport to the laboratory, then retrieved the
exhibits and brought them to court for trial.
Standard of Review
The proper standard of review for challenging the chain of custody is abuse of
discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). The evidence
has been authenticated, or the chain of custody has been established, when there is
sufficient evidence to support a finding that the evidence is indeed what it claims to
be. TEX. R. EVID. 901. Absent evidence of tampering, questions regarding the chain
of custody affect the weight the jury may assign to the evidence, not the admissibility
of the evidence. Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010). If there is
an allegation that the evidence has been tampered with, the allegation must be
23
supported by affirmative evidence of tampering. Dossett v. State, 216 S.W.3d 7, 17 (Tex.
App.—San Antonio 2006, pet ref ’d). The theoretical possibility that the evidence has
been tampered with or the potential for tampering is not sufficient. Id.
Analysis
To prove chain of custody, it is only necessary that the beginning and end of
the chain be proven. Shaw v. State, 329 S.W.3d 645, 654 (Tex. App.—Houston [14th
Dist.] 2010, pet ref ’d) (rejecting the claim that the evidence was inadmissible because
the State did not have every person who touched the evidence testify to their contact
with the evidence.). It is not necessary to prove every minute in the life of the
evidence. Id. Chain of custody is conclusively established if an officer testifies that he
sieved an item of physical evidence, tagged it, placed an identifying mark on it, placed
it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942 S.W.2d 602,
617 (Tex. Crim. App. 1997).
In the present case, Officer Parker testified that he retrieved the crack rocks
from the seat appellant was sitting in and then secured the crack rocks, State’s Exhibit
5, inside State’s Exhibit 4, the evidence envelope (R.R.III 32-33). Officer Parker
testified that he recognized State’s exhibits 4 and 5 as the evidence envelope and the
crack cocaine contained inside respectively (R.R.III 33). He initialed State’s exhibit 4
when he sealed State’s exhibit 5 inside it (R.R.III 33). He then took State’s exhibits 4
and 5 to the narcotics operation and control center, and from there it was transported
to the lab (R.R.III 34). The exhibits were then brought to court by Officer Parker on
24
trial day (R.R.III 34). The exhibits were “in the same or substantially similar
condition” as when Officer Parker dropped it off at the narcotics operation and
control center (R.R.III 34).
At the laboratory, they were placed in “centralized evidence receiving” which is
“part of the property room” (R.R.IV 7). Although there was no testimony about the
extent of the security in the property room, there was testimony that the integrity of
evidence retrieved from “centralized evidence receiving” is maintained by ensuring
that all seals are intact when retrieving evidence and prior to analysis (R.R.IV 7-8).
The evidence envelope, State’s exhibit 4 and its contents, State’s exhibit 5, arrived
sealed and had no signs of tampering (R.R.IV 10-11). Ms. Rodriguez, the criminalist
specialist, was able to identify the evidence envelope in the court because it bore her
initials that she placed on it when she did the analysis (R.R.IV 11). Ms. Rodriguez
followed safety protocols while testing the cocaine in this case (R.R.IV 10). Once Ms.
Rodriguez had done the analysis on the crack rocks, she “sealed the evidence inside of
a Ziploc inside of the evidence envelope and sealed the evidence envelope to be
returned to centralized evidence receiving where it was then stored in a vault.” Officer
Parker then brought the evidence to court for trial (R.R.IV 22). Appellant objected to
State’s exhibits 2 through 5 stating that:
.…yesterday I believe that both of the envelopes were actually opened. Today
[the State] has gone through the whole process of opening the envelope. Do
they get resealed every day?...Well, my objection, well, one, because I will reurge
my Motion to Suppress at this time regarding State’s Exhibit 5 based on, you
know, lack of probable cause.
25
[The court denied the motion to suppress.]
Ms. Lawton: Okay. Respectfully, may I—yes, I still believe there’s a foundation
issue with State’s 5 because of the fact that it, whether or not this is the actual,
the same things, I mean that were—
The Court: again, I recognize that you made that objection to the weight not
the admissibility. I’m admitting these two exists over objection.
(R.R.IV 13-14).
Officer Parker took the witness stand for a second time to clarify that after the
previous day of testimony he resealed State’s Exhibits 2, 3,16 4, and 5 and drove them
back to the crime lab and “turned them in” (R.R.IV 22-23). The next morning, he
retrieved them from the crime lab and brought them back to court (R.R.IV 23).
Appellant argues that “there is no link in the chain that discloses the transfer of
the evidence submitted by Officer Parker[,] who did not initial any of the packages of
cocaine to the laboratory[,] or any documentation that Exhibit 4, the evidence
envelope, was delivered to the laboratory and placed in a vault for security
purposes.”17 While no evidence was offered as to who drove the exhibits from the
narcotics operation and control center to centralized evidence receiving, the chain of
custody in the present case was proven by establishing the beginning and end of the
chain through the testimony of Officer Parker and Ms. Rodriguez. Shaw, 329 S.W.3d at
654. Appellant’s argument that the State failed to establish that “any documentation
16
State’s Exhibits 2 and 3 were the evidence envelope and screwdriver with cocaine residue
found on the passenger Ed Galloway, which were not admitted into evidence (R.R.IV 14).
17
Appellant’s brief at 34-35.
26
that Exhibit 4, the evidence envelope, was delivered to the laboratory and placed in
vault”18 ignores the fact that the witnesses testified that this occurred. Appellant is
wholly without authority that physical “documentation” of chain of custody is a
prerequisite to admissibility.
Appellant then complains that Officer Parker resealed and took exhibits 4 and
5 back to the lab after he testified, and then checked them out the next morning and
brought them back to court where they were entered into evidence.19 Appellant argues
that Officer’s Parker’s actions constituted tampering.20 Tampering is defined as “the
act of altering a thing; esp., the act of illegally altering a document or product, such as
written evidence or a consumer good.” BLACK’S LAW DICTIONARY (9th ed. 2009).
Officer Parker did not alter State’s Exhibit 4 or 5. He simply resealed State’s Exhibit 4,
which contained State’s Exhibit 5, and took it to a secure location so it could be
brought back to the court for the proceedings the next morning (R.R.IV 22-23).
Appellant’s argument that this constituted tampering is ludicrous, and if sustained,
would lead to absurd results where officers are punished for taking care to ensure the
integrity of the piece of evidence is maintained during trial by resealing and
transporting evidence to a secure facility21.
18
Appellant’s brief at 35.
19
Appellant’s brief at 35.
20
Appellant’s brief at 35.
27
Appellant also complains that “the ‘rocks’ of cocaine were neither tagged nor
marked for identification before being left by [O]fficer Parker with the ‘narcotics
operation and control center’ nor was there any evidence that the untagged or marked
cocaine admitted as State’s Exhibit 5 was other than what appeared to be rock cocaine
contained in the evidence envelope marked as State’s Exhibit 4…”22 The State is
uncertain what exactly appellant is saying, but this argument seems to complain that
Officer Parker did not physically mark the actual crack rocks, while conceding that
there is no evidence that State’s Exhibit 5 was not what it purported to be: rocks of
crack cocaine. Common sense dictates that the actual narcotics cannot be labelled
without tampering with the actual crack cocaine rocks, assuming labelling crack rocks
is physically possible. This is why narcotics evidence is put into sealed evidence
envelopes and then the envelopes are initialed and marked. Appellant provides no
authority for the proposition that the actual crack cocaine rocks should have been
tagged and labelled because none exists.
To further illustrate that the trial court did not abuse it’s decision in determining
that chain of custody was sufficiently prove, contrast the facts of the present case
with Ennis. In Ennis, the Court held that the trial court did not abuse its discretion in
admitting weapons into evidence despite the fact that the testimony did not
conclusively establish (1) where the weapons were retrieved from, (2) who retrieved
the weapons, and the testimony also determined that (3) the weapons retrieved were
22
Appellant’s brief at 35-36.
28
not identified as the ones used by the defendant, (4) there was no accounting for the
discrepancy between the time the weapons were seized and when the evidence
envelope was sealed, and (5) there were inconsistencies regarding the evidence
envelope. Ennis v. State, 71 S.W.3d 804, 807-08 (Tex. App.—Texarkana 2002, no pet.).
Given all of these problems regarding the chain of custody of two weapons, in which
the defendant was charged with possession of weapons in a penal institution, the trial
court’s decision to admit the weapons into evidence was not an abuse of discretion.
Id.
Chain of custody is conclusively established if an officer testifies that he seized an
item of physical evidence, tagged it, placed an identifying mark on it, placed it in
evidence storage, and retrieved the item for trial. Lagrone, 942 S.W.2d at 617. Since
Officer Parker testified that he did all of these things in the present case, appellant’s
point of error should be overruled.
REPLY TO FOURTH POINT OF ERROR
Appellant argues that the evidence that appellant possessed the crack cocaine
rocks was legally insufficient because Officer Parker did not testify that he saw the
narcotics in appellant’s hand. However, the evidence was sufficient because of
appellant’s close proximity and accessibility to the narcotics, appellant was seen
gesturing suspiciously in the area of where the drugs were found, the narcotics were
found in plain view where appellant was sitting, and appellant was acting nervous.
29
Standard of Review
The Court of Criminal Appeals has held that legal sufficiency is the only
standard a reviewing court should apply in evaluating whether the evidence proving
each element of the charged offense has been proven beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Pomier v.
State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Accordingly, this Court must apply a legal-sufficiency standard when addressing
appellant’s sufficiency arguments. Brooks, 323 S.W.3d at 912; Pomier, 326 S.W.3d at
378.
Under a legal sufficiency review, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S 307, 319 (1979); Conner v. State, 67 S.W.3d 192, 197
(Tex. Crim. App. 2001). This Court considers all the evidence and the reasonable
inferences therefrom. Conner, 67 S.W.3d at 197; Alvarado v. State, 912 S.W.2d 199, 207
(Tex. Crim. App. 1995). The jury, as the trier-of-fact, “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999); Villani v. State, 116 S.W.3d 297, 301 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d.). This Court should not re-evaluate the
weight and credibility of the evidence and thereby substitute its judgment for that of
30
the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Villani,
116 S.W.3d at 301.
Reconciliation of conflicts in the evidence is within the exclusive province of
the jury, and the jury may choose to believe some testimony and disbelieve other
testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). There is a
presumption that conflicted facts were resolved in favor of the prosecution. Matson v.
State, 819 S.W.2d 839, 847 (Tex. Crim. App. 1991). Each fact need not point directly
and independently to the guilt of appellant, as long as the combined and cumulative
force of all the incriminating circumstances is sufficient to support the conviction.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt. Hooper, 214 S.W.3d at 13. The question is not whether a
rational jury could have entertained a reasonable doubt, but whether it necessarily
would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003).
The “cumulative force” of all circumstantial evidence can be sufficient for a jury to
find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503,
507 (Tex. Crim. App. 2006).
31
Analysis
Appellant argues that the evidence is legally insufficient to prove that he
“exercised actual care, custody, control[,] or management over the two crack rocks of
cocaine discovered during the [search of appellant’s vehicle].”23
A person commits an offense when “the person knowingly or intentionally
possesses a controlled substance listed in Penalty Group 1, unless” the person has a
prescription or possesses the substance in the course of their employment. TEX.
CONTROLLED SUB. ACT. § 481.115 (West 2013). To prove appellant unlawfully
possessed a controlled substance, “the State must prove that the accused exercised
control, management, or care over the substance.” Evans v. State, 202 S.W.3d 158, 161
(Tex. Crim. App. 2006); See also TEX. HEALTH & SAFETY CODE ANN. § 481.002 (38)
(West 2013) (“Possession means actual care, custody, control, or management”).
Possession need not be exclusive, and if the accused is not in exclusive possession of
the narcotics, independent facts and circumstances must affirmatively link the
defendant to the narcotics to the extent that any reasonable juror could conclude that
the defendant possessed the substance and had knowledge of it. Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d 14, 18 (Tex.
App.—Houston [1st Dist.] 2010, pet ref’d).
Several factors assist in establishing an affirmative link between the defendant
and the narcotics. Evans, 202 S.W.3d at 162 n. 12. Some non-exhaustive factors to be
23
Appellant’s brief at 41.
32
considered are “(1) the defendant’s presence when a search is conducted; (2) whether
the substance was in plain view; (3) the defendant’s proximity to and accessibility of
the substance; (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 was present; (11) whether the defendant owned or had the right
to possess the place where the substance was found; (12) whether the place where the
substance was 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.
In support of his argument, appellant points to caselaw from the 7th circuit and
the 11th circuit in two cases in which the defendants were charged with possession of
a controlled substance with intent to deliver or distribute.24 In Kitchen, the Court held
that the evidence that the defendant possessed the cocaine was insufficient when
there had been no agreement between the defendant and the undercover officer to
purchase the cocaine, and the undercover officer took the defendant to a location
where another undercover officer was waiting with a large amount of cocaine. Kitchen,
Appellant’s brief at 38-41. See United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995); See also
24
United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999).
33
57 F.3d at 519. There was conflicting evidence regarding whether the defendant ever
touched the cocaine, but at best, he may have picked up a bag of cocaine and held it
for two to three seconds. Id. The defendant never agreed to buy, nor ever removed it
from the trunk of the undercover officer’s car. Id. The officers arrested the defendant
before he took possession of the drugs or even agreed to take possession of the
narcotics. Id. at 520-525. This evidence was legally insufficient to sustain the
conviction. Id. at 525.
Similarly in Edwards, the defendant was purchasing cocaine from undercover
officers. Edwards, 166 F.3d at 1363. The defendant brought cash to where an
undercover officer parked his car with an envelope of cocaine in the trunk. Id. The
defendant pulled the cocaine out of the envelope momentarily, then returned it to the
envelope, and told the undercover officer that he wanted to “go for a ride” and was
then arrested. Id. The defendant was arrested before he took possession of the
narcotics or agreed to take possession of the narcotics, and thus the evidence proving
possession was legally insufficient. Id. at 1364.
Both Kitchen and Edwards involve cases where the officers prematurely arrested
the defendants before each defendant came into possession of the narcotics. This is
much different than the facts of the present case where the defendant is seen
“[cuffing]” his hand, as if he was concealing something, and then appear to drop
something while reaching for his wallet in his back pocket (R.R.III 18-20). Moments
later, when appellant gets up from his seat, Officer Parker sees crack rocks on
34
appellant’s seat where he appeared to have dropped something while reaching for his
wallet (R.R.III 23, R.R.IV 17). The jury was entitled to believe that it was not a
coincidence that Officer Parker found crack cocaine in the same location that
appellant appeared to drop something that he was concealing in hand, all the while
appearing nervous when interacting with Officer Parker.
In James, officers were working in a high crime area when they observed the
defendant illegally parking at a gas station. James v. State, 264 S.W.3d 215, 217 (Tex.
App.—Houston [1st Dist.] 2008, pet ref’d). The officer saw the defendant and his
passenger exit the parking in the vehicle and observed the driver commit a traffic
offense, for which a traffic stop was conducted. Id. at 218. With the assistance of the
spotlight from the patrol car, the officer observed the defendant “leaning forward in
his seat” looking back at the officer while “[gesturing]” in a manner that indicated that
he was putting something under the seat. Id. The defendant was taken out of the
vehicle and placed in a patrol car. Id. When the officer returned to the car and looked
under the defendant’s seat he found a loaded black revolver. Id. The defendant was
charged with being a felon in possession of a weapon. Id. The defendant, on appeal,
argued that there was no evidence affirmatively linking him to the weapon since no
one saw the firearm in his hand. Id. at 219. This Court held that the evidence that the
defendant possessed the gun was sufficient because the gun was found close to where
he was seated in the vehicle, he acted nervous, and was seen making movements as if
he was concealing something under his seat. Id. at 219-220.
35
James is similar to the present case. Appellant was acting nervous, he was
“[cuffing]” his fingers as if was hiding something, then appeared to drop that hidden
object by his thigh while retrieving his wallet (R.R.III 18-20). When appellant got up
from the seat, cracks rocks were on appellant’s seat in plain view (R.R.III 23; R.R.IV
17). Because of appellant’s close proximity and accessibility to the narcotics, appellant
was seen gesturing suspiciously in the area of where the drugs were found, the
narcotics were found in plain view where appellant was sitting, and appellant was
acting nervous, the evidence that appellant had care, custody, control, and
management of the crack cocaine rocks is legally sufficient. Evans, 202 S.W.3d at 162
n. 12. Appellant’s point of error should be overruled.

36
CONCLUSION
It is respectfully submitted that all things are regular and that the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Abbie Miles
ABBIE MILES
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 24072240
Miles_abbie@dao.hctx.net
Curry_Alan@daohctx.net
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 10, 257 words, based upon the representation provided by the word
processing program that was used to create the document.
/s/ Abbie Miles
Abbie Miles
Assistant District Attorney
37
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been mailed to the
appellant’s attorney at the following address on January 14, 2015:
Maverick Ray
1419 Franklin, 2nd Floor
Houston, Texas 77002
maverickray@gmail.com
/s/ Abbie Miles
ABBIE MILES
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 024072240
Miles_abbie@dao.hctx.net
Curry_Alan@dao.hctx.net
Date: January 14, 2015
38