Zachary Daniel Harris A/K/A Zachary Harris v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-400-CR
ZACHARY DANIEL HARRIS APPELLANT
A/K/A ZACHARY HARRIS
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
A jury convicted Appellant Zachary Daniel Harris a/k/a Zachary Harris of
possession with intent to deliver four grams or more but less than two-hundred
grams of a controlled substance, and the trial court sentenced him to thirty-five
years’ confinement. In four points, Harris argues that the trial court erred by
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… See Tex. R. App. P. 47.4.
denying his motion to suppress evidence, that the evidence is legally and
factually insufficient to support his conviction, and that the trial court abused
its discretion by admitting certain evidence. We will affirm.
II. B ACKGROUND
On May 5, 2006, pursuant to an arrest warrant, officers with the Grand
Prairie Police Department arrested Harris in the parking lot of a convenience
store when he exited a white Chevrolet Malibu that he had been driving.2
Officers searched the vehicle and recovered a loaded shotgun with a pistol grip
lying on the back seat in a black bag, two boxes of clear plastic bags on the
floorboard behind the driver’s seat, two cell phones from the front of the
vehicle, and a small canvas-type bag in the center console containing a pocket
digital scale with white residue on it and a plastic bag containing 70.93 grams
of an off-white, rock-like substance subsequently tested and determined to be
cocaine. Harris had $960 in his right front pants pocket.
Harris entered a plea of not guilty to the charged offense of possession
with intent to deliver a controlled substance of four grams or more but less than
two-hundred grams and a plea of not true to the deadly weapon finding notice.
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… The warrant states that the Affiant “ha[s] good reason and do believe
that on/about 5/2/06 one Harris, Zachary Daniel did then and there in the City
of Grand Prairie, Dallas County, Texas commit the offense of Capital Murder
19.03 C/F.”
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The trial court denied Harris’s motion to suppress the evidence seized from the
vehicle, and it found true beyond a reasonable doubt the State’s deadly weapon
notice. This appeal followed Harris’s trial and conviction.
III. M OTION TO S UPPRESS—O MITTED F ACT
In his fourth point, Harris argues that the trial court erred by denying his
motion to suppress the evidence seized from the vehicle because the arrest
warrant was defective due to the omission of relevant and material facts that
were withheld from the supporting affidavit but known to the affiant when the
warrant was sought. Harris specifically complains about the affiant’s admitted
omission from the affidavit of the fact that Emerald Lyle—a witness to the
murder for which authorities sought to arrest Harris—did not identify Harris in
a photographic spread that she viewed prior to the magistrate’s issuance of the
arrest warrant and prior to Harris’s arrest on May 5, 2006. Harris contends
that “[h]ad the magistrate known this information, this affirmative fact
exculpating [Harris] would have vitiated probable cause and resulted in the
denial of the arrest warrant.”
A. Standard of Review
Generally, the appropriate standard for reviewing a trial court’s ruling on
a motion to suppress is a bifurcated standard of review, giving almost total
deference to the trial court’s determination of historical facts and reviewing de
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novo the court’s application of the law. Amador v. State, 221 S.W.3d 666,
673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). When reviewing a magistrate’s decision to issue a warrant,
however, we apply a highly deferential standard in keeping with the
constitutional preference for a warrant. Rodriguez v. State, 232 S.W.3d 55,
60 (Tex. Crim. App. 2007); Swearingen v. State, 143 S.W.3d 808, 810–11
(Tex. Crim. App. 2004). Under this standard, we uphold the probable cause
determination “so long as the magistrate had a ‘substantial basis for . . .
conclud[ing]’” that probable cause existed. Illinois v. Gates, 462 U.S. 213,
236, 103 S. Ct. 2317, 2331 (1983) (quoting Jones v. United States, 362 U.S.
257, 271, 80 S. Ct. 725, 736 (1960), overruled on other grounds by U.S. v.
Salvucci, 448 U.S. 83, 100 S. Ct. 2547 (1980)); see Swearingen, 143 S.W.3d
at 810.
An arrest warrant must provide the magistrate with sufficient information
to support an independent judgment that probable cause exists for the warrant.
Jones v. State, 568 S.W.2d 847, 854 (Tex. Crim. App.), cert. denied, 439 U.S.
959 (1978). Whether the facts mentioned in the affidavit are adequate to
establish probable cause depends on the totality of the circumstances. Ramos
v. State, 934 S.W.2d 358, 362–63 (Tex. Crim. App. 1996). A reviewing court
should not invalidate a warrant by interpreting the affidavit or complaint in a
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hypertechnical manner. See Gates, 462 U.S. at 236, 103 S. Ct. at 2331;
Rodriguez, 232 S.W.3d at 59. Rather, when a court reviews an issuing
magistrate’s determination, the court should interpret the affidavit or complaint
in a commonsensical and realistic manner, recognizing that the magistrate may
draw reasonable inferences. See Rodriguez, 232 S.W.3d at 61; Davis v. State,
202 S.W.3d 149, 154 (Tex. Crim. App. 2006). The duty of a reviewing court
is thus simply to determine whether, considering the totality of the
circumstances, the magistrate had a substantial basis for concluding that
probable cause existed to support the issuance of the warrant when viewing
the affidavit. Gates, 462 U.S. at 238, 103 S. Ct. at 2332.
B. Supplemented Affidavit Sufficient to Show Probable Cause
The United States Supreme Court has held that an affirmative
misrepresentation of a material fact that establishes probable cause, made
knowingly or recklessly in a probable cause affidavit, will render a search
warrant invalid under the Fourth Amendment. See Franks v. Delaware, 438
U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978). Although the court of
criminal appeals has yet to state clearly that Franks should apply to omissions
as well, the Fifth Circuit, this court, and other courts of appeals have applied
the same analysis to omissions of material facts. See United States v. Martin,
615 F.2d 318, 328 (5th Cir. 1980); McKissick v. State, 209 S.W.3d 205,
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211–14 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Darby v. State, 145
S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Ward v.
State, No. AP-74695, 2007 WL 1492080, at *3–4 (Tex. Crim. App. May 23,
2007). We therefore analyze the complained of omission regarding Lyle’s
failure to identify Harris in a photographic spread under Franks. See Martin,
615 F.2d at 328; McKissick, 209 S.W.3d at 211–14; Darby, 145 S.W.3d at
722; Volk v. State, Nos. 01-07-00265-CR, 01-07-00266-CR, 01-07-00326-CR,
2008 WL 2854166, at *4–5 (Tex. App.—Houston [1st Dist.] July 24, 2008,
no pet.) (mem. op.) (applying Franks to argument that material, exculpatory
omissions in affidavit supporting search warrant invalidated warrant).
Accordingly, if a defendant establishes by a preponderance of the evidence that
omissions of fact were made in a probable cause affidavit and that such
omissions were made intentionally or with reckless disregard for the truth, the
warrant will be held invalid if the inclusion of the omitted facts would vitiate
probable cause. Martin, 615 F.2d at 328.
Here, Detective Joseph Wood of the Grand Prairie Police Department is
the affidavit’s affiant. According to the affidavit, Lyle awoke in her living room
to discover Megal Brown standing in between Christopher Jackson (also known
as “Chris” or “Lil Chris”) and “a black male that she recognized . . . had been
at her apartment before.” Lyle heard Brown call out her name, she heard a
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gunshot, and she observed Brown fall to the floor. The two men ran out of the
apartment.
Lyle did not know the name of the “black male,” but she identified
Jackson and told Detective Wood that Jackson’s phone number was listed in
Brown’s cell phone. Investigators located a phone number on the cell phone
under the name “Lil Chris,” called the number, and spoke to Jackson, who said
his last name was Jackson, provided his date of birth, and agreed to talk to
investigators. Investigators obtained a photograph of Jackson and showed it
to Lyle. Lyle confirmed that Jackson was the person in the photograph.
Investigators arrested Jackson, and Jackson “waived his rights and
admitted to being in the apartment buying weed from [Brown].” According to
Jackson, he had completed his drug transaction and was about to leave when
Harris arrived at the apartment. Jackson knew Harris by name. Jackson
observed Harris and Brown “tussle[] around the kitchen/dining area of the
apartment,” and he heard a gunshot as he was leaving to get away from the
fight.
In light of this information contained within the four corners of the
affidavit, we hold that, considering the totality of the circumstances, the
magistrate had a substantial basis for concluding that probable cause existed
to support the issuance of the warrant for Harris’s arrest even when the
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affidavit is supplemented with the omitted information. See Gates, 462 U.S.
at 238, 103 S. Ct. at 2332; Martin, 615 F.2d at 328; McKissick, 209 S.W.3d
at 211–14; Darby, 145 S.W.3d at 722. Thus, the inclusion in the affidavit of
the fact that Lyle failed to positively identify Harris in a photographic spread
would not have vitiated probable cause and consequently rendered invalid the
arrest warrant. Accordingly, the trial court did not err by denying Harris’s
motion to suppress evidence. We overrule Harris’s fourth point.
IV. E VIDENTIARY S UFFICIENCY
In his first and second points, Harris challenges the legal and factual
sufficiency of the evidence to show that he possessed the controlled substance
for which he was prosecuted.
A. Standards of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether 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, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
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Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the factfinder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the factfinder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
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is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the factfinder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9. An opinion addressing factual sufficiency must include a
discussion of the most important and relevant evidence that supports the
appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.
Crim. App. 2003).
B. Sufficient Evidence of Possession
A person commits an offense if the person knowingly possesses with
intent to deliver a controlled substance in the amount of four grams or more but
less than 200 grams. Tex. Health & Safety Code Ann. § 481.112(a), (d)
(Vernon 2003). To prove possession of a controlled substance, the State had
to prove that Harris (1) exercised actual care, custody, control, or management
over the contraband and (2) that he knew the matter possessed was
contraband. See id. § 481.002(38), 481.112(a); Brown v. State, 911 S.W.2d
744, 747 (Tex. Crim. App. 1995). Regardless of whether the evidence is direct
or circumstantial, it must establish that the defendant’s connection with the
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drug was more than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex.
Crim. App. 2006); Beall v. State, 237 S.W.3d 841, 850 (Tex. App.—Fort
Worth 2007, no pet.). This is the so-called “affirmative links” rule, which
protects the innocent bystander from conviction merely because of his
fortuitous proximity to someone else’s drugs. Evans, 202 S.W.3d at 161–62.
While mere presence at the location where drugs are found is insufficient by
itself to establish actual care, custody, or control of the drugs, presence or
proximity, when combined with other evidence, either direct or circumstantial
(e.g. “links”), may well be sufficient to establish that element beyond a
reasonable doubt. Id. at 162.
No formula of facts exists to dictate a finding of links sufficient to support
an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827,
830 (Tex. App.—Dallas 2003, no pet.); Ramos v. State, Nos. 02-07-00118-CR,
02-07-00119-CR, 2008 WL 623777, at *4 (Tex. App.—Fort Worth Mar. 6,
2008, pet. ref’d) (mem. op.). It is the logical force of the evidence, and not the
number of links, that supports a factfinder’s verdict. Evans, 202 S.W.3d at
166. Possible links include but are not limited to the following: (1) whether the
defendant was present when the drugs were found; (2) whether the drugs were
in plain view; (3) the defendant’s proximity to and the accessibility of the drugs;
(4) whether the defendant was under the influence of drugs when arrested; (5)
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whether the defendant possessed other contraband or drugs when arrested; (6)
whether the defendant made any 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 drugs; (10) whether other
contraband or other drug paraphernalia was present; (11) whether the
defendant owned or had the right to possess the place where the drugs were
found; (12) whether the place 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.
at 162 n.12; Beall, 237 S.W.3d at 850.
In this case, on May 5, 2006, officers arrested Harris immediately after
he exited the white Chevrolet Malibu with license plate number 853 CDR that
he had been driving and that he had parked at a convenience store. An officer
with the Arlington Police Department testified that he spoke to Harris on
December 5, 2005, and that Harris was driving a white Chevrolet Malibu with
license plate number 853 CDR at the time. Officers searched the vehicle and
recovered a loaded shotgun with a pistol grip lying on the back seat in a black
bag, two boxes of clear plastic bags on the floorboard behind the driver’s seat,
two cell phones from the front of the vehicle, and a small canvas-type bag in
the center console containing a pocket digital scale with white residue on it and
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a plastic bag containing 70.93 grams of cocaine. A search of Harris’s person
revealed that Harris had $960 in his right front pants pocket. The vehicle was
not registered to Harris.
A detective with the Grand Prairie Police Department testified that it is
common for individuals involved in narcotics dealing to use sandwich bags to
package narcotics, to use pocket scales, to have shotguns, to have multiple cell
phones, to drive vehicles that aren’t registered to them, and to carry large
amounts of cash.
Harris contends that the evidence is insufficient to show that he
possessed the cocaine because he was not the registered owner or insurer of
the vehicle; no drugs or paraphernalia were found on his person; no fingerprints
were obtained tying him to the drugs, the shotgun, the cell phones, or the
scales; no information was obtained from the two cell phones concerning who
they belonged to; and he made no efforts to elude detection, nor did he make
any furtive movements or attempt to flee. Notwithstanding this evidence, the
State established multiple, logically forceful links—including that Harris was
driving the vehicle in which the drugs were found, that Harris was in close
proximity to and could easily access the drugs, that other items associated with
narcotics dealing were present in the vehicle, and that Harris had a large
amount of cash on his person—demonstrating Harris’s possession of the
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cocaine. See Evans, 202 S.W.3d at 162 n.12. Harris’s analysis ignores much
relevant evidence and does not appropriately implement the applicable
standards of review.
Viewing the evidence in a favorable or neutral light, the evidence is legally
and factually sufficient to link Harris to the cocaine recovered from the vehicle
that he was driving. Consequently, the evidence is legally and factually
sufficient to show that Harris possessed the cocaine. See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Watson, 204 S.W.3d at 414–15, 417. We overrule
Harris’s first and second points.
V. E VIDENCE OF S HOTGUN
In his third point, Harris argues that the trial court abused its discretion
by admitting in evidence the shotgun found on the back seat of the vehicle that
he was driving just before his arrest. Harris preserved for appellate review his
rules of evidence 401, 403, and 404(b) objections to the admission of the
shotgun.
A. Standard of Review
We will not disturb a trial court’s evidentiary ruling absent an abuse of
discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007). As long as the trial court’s ruling is within the zone of reasonable
disagreement and is correct under any theory of law, it must be upheld. Id.
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B. Rule 401
“All relevant evidence is admissible . . . . Evidence which is not relevant
is inadmissible.” Tex. R. Evid. 402. Evidence is relevant if it has any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence. Tex. R. Evid. 401.
As examined above, the State had the burden of proving that Harris
possessed narcotics as part of its prosecution of him for the offense of
possession with intent to deliver a controlled substance of four grams or more
but less than two-hundred grams. See Tex. Health & Safety Code Ann.
§ 481.112(a)(d). A detective with the Grand Prairie Police Department testified
that it is common for individuals involved in narcotics dealing to have shotguns
or other firearms. The shotgun located on the back seat of the vehicle that
Harris was driving immediately before his arrest thus had the tendency to make
more probable Harris’s knowing possession of the cocaine. Accordingly, we
hold that the trial court did not abuse its discretion by admitting the shotgun in
evidence over Harris’s rule 401 objection. See Tex. R. Evid. 401.
C. Rule 403
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
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issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence. Tex. R. Evid. 403. Once appellant makes
a rule 403 objection, the trial court must weigh the probativeness of the
evidence to determine if it is substantially outweighed by its potential for unfair
prejudice. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).
A rule 403 balancing test includes the following factors: (1) the inherent
probative force of the proffered item of evidence along with (2) the proponent’s
need for that evidence against (3) any tendency of the evidence to suggest
decision on an improper basis, (4) any tendency of the evidence to confuse or
distract the jury from the main issues, (5) any tendency of the evidence to be
given undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 & n.8 (Tex.
Crim. App. 2006).
The rules of evidence favor the admission of relevant evidence and carry
a presumption that relevant evidence is more probative than prejudicial. Jones
v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied, 522 U.S.
832 (1997). When determining whether evidence is admissible under rule 403,
we do not consider just whether the evidence is more prejudicial than probative,
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we consider whether the probative value is substantially outweighed by the
danger of unfair prejudice. Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim.
App. 2006), cert. denied, 127 S. Ct. 1289 (2007).
As Harris argued in the point above, the vehicle that he was driving was
not registered to him, no drugs or paraphernalia were found on his person, no
fingerprints were obtained tying him to the drugs, the shotgun, the cell phones,
or the scales, and no information was obtained from the two cell phones
concerning who they belonged to. The probative value of the shotgun was thus
considerable and significantly necessary to the State’s case because it is a link
tending to show that Harris knowingly possessed the cocaine. Weighing the
probative value of the evidence of the shotgun with the other rule 403 factors,
the trial court could have reasonably concluded that the shotgun did not have
a tendency to suggest decision on an improper basis, to confuse or distract the
jury, or to be given undue weight by the jury. Consequently, the trial court
could have reasonably concluded that the probative value of the evidence of the
shotgun was not substantially outweighed by the danger of unfair prejudice.
See Tex. R. Evid. 403. We hold that the trial court did not abuse its discretion
by admitting the shotgun in evidence over Harris’s rule 403 objection.
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D. Rule 404(b)
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. Tex. R.
Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App.
1990) (op. on reh’g). This rule reflects the well-established principle that a
defendant should not be tried for some collateral crime or for being a criminal
generally. Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim. App. 1987).
Evidence of prior criminal conduct may, however, be admissible if it is logically
relevant to prove some other fact, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.
R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App.
2004). For extraneous offense evidence to be admissible under rule 404(b), the
evidence must be relevant to a fact of consequence in the case apart from its
tendency to prove conduct in conformity with character. Johnston, 145
S.W.3d at 220.
Here, the evidence of the shotgun was relevant to prove Harris’s
knowledge that he possessed narcotics. Harris’s knowledge that he possessed
narcotics is a fact of consequence of the case apart from its tendency to prove
conduct in conformity with his character. See id.; see also Tex. R. Evid.
404(b). Accordingly, we hold that the trial court did not abuse its discretion by
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admitting the evidence of the shotgun over Harris’s rule 404(b) objection. We
overrule Harris’s third point.
VI. C ONCLUSION
Having overruled Harris’s four points, we affirm the trial court’s judgment.
PER CURIAM
PANEL: HOLMAN, J.; CAYCE, C.J.; and LIVINGSTON, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 4, 2008
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