Jammie Lee Moore v. State ( 2010 )

NO. 07-08-0515-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 3, 2010
________________________
JAMMIE LEE MOORE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 55,555-E; HONORABLE PATRICK A. PIRTLE, JUDGE
____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Jammie Lee Moore, was convicted of possession of a controlled
substance, methamphetamine, in an amount of more than 4 grams but less than 200
grams. 1 The jury found that the possession occurred within a drug free zone. 2 After
finding the enhancement allegations contained within the indictment true, the jury
assessed appellant’s punishment at confinement in the Institutional Division of the
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Vernon Supp. 2009).
2
See TEX. HEALTH & SAFETY CODE ANN. § 481.134(C)(1) (Vernon Supp. 2009).
Texas Department of Criminal Justice (ID-TDCJ) for 30 years. Appellant appeals
contending that the evidence is legally and factually insufficient to support the
conviction. We affirm.
Factual Background
On April 6, 2007, appellant and his girlfriend, Maria Antionette Garcia (Garcia),
went to spend the evening and night at a motel in Amarillo. After arriving at the motel,
at the suggestion of appellant, they went to a bar in Amarillo known as “No Dogs
Allowed.” They went to the bar, according to Garcia, so that appellant could meet
someone. Upon arriving at the bar, the person appellant was to meet was not present.
Drinks were ordered and appellant walked away from the bar to talk on his cell phone.
When the drinks were served, Garcia tipped the bartender a dollar from the change.
This made appellant angry and words were exchanged with Garcia. Garcia got up and
went outside the bar. Upon exiting the bar, appellant pushed Garcia down to the
ground. Appellant then continued to yell at Garcia.
After leaving the bar, appellant and Garcia went back to the motel, where
appellant continued to yell at her. Appellant was again unable to contact the person he
was to meet and, in a fit of anger, kicked a table that struck Garcia. Following this, the
two packed their belongings and went back to the house at 938 Dahlia Street in
Amarillo. Once they returned to the house, appellant dropped Garcia off and left in his
vehicle.
When Garcia thought appellant had left, she placed a 911 call and reported
appellant’s assault and told the 911 operator that appellant is in a green vehicle and has
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a weapon. While Garcia was talking to the 911 operator, she heard appellant come
back to the house and hung up the phone. The 911 operator called back and Garcia
answered and hung the phone up, telling appellant that it was a wrong number. Garcia
testified she did this because appellant was standing right in front of her and she was
afraid of him.
Within a matter of moments, the Amarillo police arrived at the residence. Officer
Moore testified that, as he approached the door, he heard shouting and a woman’s
scream. When Moore knocked on the door, Garcia came through it stating “He’s
inside.” Officer Moore could see appellant in the hallway immediately adjacent to the
living room. Moore quickly detained appellant and placed him in the backseat of his
patrol car. Moore testified that he got appellant’s identifying information and, during the
process, appellant stated that the green car was his. Moore further testified that he saw
a methamphetamine pipe sitting on a table in the living room. He also observed a small
black bag sitting on the same table. Because the call was initially regarding a domestic
dispute, Moore interviewed Garcia and took a statement from her. From his interview
with Garcia, Moore learned that there was a gun and narcotics in the house. Garcia told
Moore that the gun and narcotics belonged to appellant. Moore then collected the
evidence. He found the gun in the kitchen in a zipper bag sitting on a counter. When
Moore opened the black case he found on the living room table, it contained what he
thought to be methamphetamine, marijuana, digital scales, plastic baggies, and
batteries.
After Moore had collected the evidence, he went to his patrol car to put the
evidence in the trunk of his patrol car. During this time, appellant was yelling at Moore
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and, after he deposited the evidence in the trunk, Moore sat in the driver’s seat and
opened the sliding window to the back seat. At this time, appellant stated that the gun
and methamphetamine found in the house did not belong to him. Appellant further
stated that the drugs and gun belonged to Garcia and he was just “peddling” the dope
for her. Appellant was subsequently arrested for possession of a controlled substance.
During the trial, the State produced the testimony of the Amarillo Police
Department employee that took the evidence into custody and subsequently delivered it
to the Department of Public Safety lab. The director of the lab testified that testing
showed that the contents of the three baggies, suspected to be methamphetamine, did
test positive as methamphetamine with a total weight of 63.31 grams. The larger
sample was found to contain a high level of a cutting agent, whereas the two smaller
samples contained substantially more pure methamphetamine. Also testifying for the
State was Deputy Christy Phillips of the Potter County Sheriff’s Office. As part of
Phillips’s duties, she supervises inmate telephone calls. Phillips testified that all calls
from the Potter County Detention Center are recorded. She then identified State’s
exhibit 20 as a CD of telephone calls made by appellant. The exhibit was partially
played for the jury. Among the subjects discussed by appellant in the telephone calls
was that he had kicked a table that hurt Garcia’s leg. Further, appellant acknowledged
that one of the bags of contraband weighed 47 to 48 grams and that half of it was fake.
Appellant also acknowledged using the scales to weigh the larger bag.
After the State presented its evidence, appellant presented the testimony of the
manager of the motel where Garcia claimed that she and appellant checked in. The
witness testified that the records of the motel did not reveal anyone checking in on the
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day in question under appellant’s or Garcia’s name. Further, Garcia had testified that
the table appellant kicked, which struck her leg, was a glass topped table. The
manager stated that the motel had no glass top tables in any of the rooms of the motel.
After receiving the court’s charge, the jury found appellant guilty of the offense of
possession of methamphetamine of at least four grams but less than 200 grams and
found that the possession occurred in a drug free zone. Subsequently, having found
that both enhancement paragraphs of the indictment were true, the jury assessed
appellant’s punishment at confinement in ID-TDCJ for 30 years. Appellant appeals the
judgment contending that the evidence is legally and factually insufficient to connect him
to the methamphetamine in question. We will affirm.
Sufficiency of the Evidence
Appellant challenges both the legal and factual sufficiency of the evidence.
Therefore, we are required to conduct an analysis of the legal sufficiency of the
evidence first and then, only if we find the evidence to be legally sufficient, do we
analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126,
133 (Tex.Crim.App. 1996).
Standard of Review
In assessing the legal sufficiency of the evidence, we review all the evidence in
the light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v.
State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency
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review, an appellate court may not sit as a thirteenth juror, but rather must uphold the
jury’s verdict unless it is irrational or unsupported by more than a mere modicum of
evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We measure
the legal sufficiency of the evidence against a hypothetically correct jury charge. See
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).
When an appellant challenges the factual sufficiency of the evidence supporting
his conviction, the reviewing court must determine whether, considering all the evidence
in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a
reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).
In performing a factual sufficiency review, we must give deference to the fact finder’s
determinations if supported by evidence and may not order a new trial simply because
we may disagree with the verdict. See id. at 417. As an appellate court, we are not
justified in ordering a new trial unless there is some objective basis in the record
demonstrating that the great weight and preponderance of the evidence contradicts the
jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency
must include a discussion of the most important evidence that appellant claims
undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
The Court of Criminal Appeals has recently declared that, when reviewing the evidence
for factual sufficiency, the reviewing court should measure the evidence in a neutral
manner against a “hypothetically correct jury charge.” Vega v. State, 267 S.W.3d 912,
915 (Tex.Crim.App. 2008) (citing Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App.
2008)).
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Legal Sufficiency
Appellant contends that the State failed to present legally sufficient evidence
linking him to the methamphetamine. To prove appellant guilty of the indicted offense,
the State had to prove: 1) appellant; 2) intentionally or knowingly; 3) possessed; 4) a
controlled substance, methamphetamine; 5) in an amount of four grams or more but
less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). Possession
means the actual care, custody, control, or management of the methamphetamine in
question. See id. § 481.002(38). To prove that appellant possessed the
methamphetamine in question, the State must prove that: (1) the accused exercised
control, management, or care over the substance; and (2) the accused knew the matter
possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405
(Tex.Crim.App. 2005). The evidence establishing possession may be direct or
circumstantial, however, it must establish that appellant’s connection to the
methamphetamine was more than just fortuitous. Id. at 405-06. There must be
evidence, other than presence alone, that would lead the fact finder to rationally
conclude beyond a reasonable doubt that appellant exercised care, custody, control, or
management of the methamphetamine. See Evans v. State, 202 S.W.3d 158, 162
(Tex.Crim.App. 2006).
In Evans, the Texas Court of Criminal Appeals set forth a list of links that had
been recognized by Texas courts. Id. at 162 n.12. The list is non-exclusive and
includes the following:
1) the defendant’s presence when a search is conducted; 2) whether the
contraband was in plain view; 3) the defendant’s proximity to and the
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accessibility of the narcotic; 4) whether the defendant was under the
influence of narcotics when arrested; 5) whether the defendant possessed
other contraband or narcotics when arrested; 6) whether the defendant
made incriminating statements when arrested; 7) whether the defendant
attempted to flee; 8) whether the defendant made furtive gestures; 9)
whether there was an odor of contraband; 10) whether other contraband
or drug paraphernalia were present; 11) whether the defendant owned or
had the right to possess the place where the drugs were found; 12)
whether the place where the drugs were found was enclosed; 13) whether
the defendant was found with a large amount of cash; and 14) whether the
conduct of the defendant indicated a consciousness of guilt.
Id. It is not the number of links found to be present that is ultimately important, rather it
is the logical force of all of the evidence, both direct and circumstantial. Id. at 162.
In reviewing the evidence before the jury, the first matter to consider is that
appellant was present where the contraband was found. He was in the house
approximately 10 to 15 feet from the table where the black bag containing the
contraband was found. The methamphetamine was, however, not in plain view.
Rather, it was located inside the closed black bag. The testimony of Garcia was that
the bag belonged to appellant. Appellant’s brief seems to posit that the bag could have
belonged to Garcia, yet the only testimony before the jury was that it belonged to
appellant. Appellant contends that he denied any possession of the bag or
methamphetamine to the police officers and that they reported this in their reports.
While this statement is true, it must be considered in light of the later admission that
appellant made to Officer Moore. After Moore had placed the evidence in the trunk of
his patrol car, he went to the front seat and opened the sliding window into the back
seat, where appellant was seated, and appellant stated that the gun and the
methamphetamine found in the house did not belong to him and that he was just
“peddling” the dope for his girlfriend. The jury could well have viewed this as an
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admission to possession of the methamphetamine. Also, nothing in the record reveals
how appellant had knowledge of what items were found in the house other than having
prior knowledge of their existence. Thus, this statement was a conscious
acknowledgment of guilt and that he was aware that the matter possessed was
contraband. Additionally, there are the recorded jail house telephone calls. One of the
calls talks about the gun in question and another mentions that appellant knew that the
larger bag of methamphetamine was half fake. The lab supervisor for the DPS testified
that the larger bag was approximately one-half cutting agent. The recorded phone calls
also contain an admission by appellant that he had kicked a table that struck Garcia on
the leg. This was consistent with Garcia’s testimony about what occurred at the motel.
Finally, Officer Moore testified that appellant admitted that the green car parked at the
house was his and the only set of keys found at the location were lying on the table next
to the black bag where the methamphetamine was found.
As part of our analysis of the evidence, we first must remember that it is not the
number of links found that is important, rather it is the logical force of the links
established by the evidence that controls the ultimate issue. Id. The links to appellant
may be demonstrated by direct or circumstantial evidence. Poindexter, 153 S.W.3d at
405-06. Further, when we review this evidence in the light most favorable to the verdict,
as we must in a legal sufficiency review, we cannot say that the jury acted irrationally in
finding appellant guilty beyond a reasonable doubt of possession of methamphetamine
as charged in the indictment. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620.
Appellant’s issue regarding the legal sufficiency of the evidence is overruled.
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Factual Sufficiency
We next review the evidence in a neutral manner to determine whether the jury
was rationally justified in finding appellant guilty beyond a reasonable doubt. Watson,
204 S.W.3d at 415. When making a factual sufficiency review, we are mindful that the
jury has already passed on the evidence and their conclusions are entitled to deference
when supported by the evidence. Id. at 417. Further, we cannot simply supplant the
jury’s verdict because we might disagree with it, rather we must be able to state with
particularity where the deficiency in the evidence to support the jury’s determination
exists. Id.
Appellant contends that the evidence is factually insufficient for the same
reasons he claimed that the evidence was legally insufficient, a failure of the evidence
to link him to the methamphetamine in question. However, the evidence is factually
sufficient, even when viewed in a neutral light, for the same reasons that the evidence
was legally sufficient. Id. at 415.
Appellant asserts two primary reasons that the evidence is factually insufficient
and we will address those concerns. Sims, 99 S.W.3d at 603. First, appellant spends a
significant portion of his brief outlining all of the various Evans factors that do not link
him to the methamphetamine. Such an analysis, while correct, misses the mark. As
stated in Evans, it is not the number of links that is important, rather it is the logical force
of the links that are found that control the issue. Evans, 202 S.W.3d at 162. Here,
there are a number of links that the evidence did not support, however, nowhere in
appellant’s brief is there a mention of the fact that appellant made a directly
incriminating statement to Officer Moore. Likewise, there is no mention of the recorded
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telephone conversations from jail that a jury could rationally believe indicate that
appellant knowingly possessed the drugs on the night in question.
Second, appellant posits that the police chose to believe Garcia’s statement that
the drugs were not hers, even though she was seated directly in front of the drugs.
However, there are two problems with appellant’s contention. The evidence was that
Garcia had come out the front door and did not return to the house until appellant was in
custody. Therefore, this situation is not similar to the facts of Evans, where the
defendant was seated in front of drugs that were in plain view when the police arrived.
Further, Garcia’s testimony reflected that, prior to the police’s arrival, she was not
seated directly in front of the black bag, rather she was on another sofa located in the
living room of the house.
Finally, appellant points out a number of inconsistencies in Garcia’s testimony
and opines that these show the evidence to be factually insufficient. However, the
position taken by appellant invites the court to ignore that the jury heard this testimony
and resolved any conflicts and discrepancies against appellant. This is the jury’s
province and we cannot say that there is no support for their conclusion in the record.
Id.
Accordingly, we find that the evidence is factually sufficient to support the jury’s
verdict and that the verdict is not against the great weight and preponderance of the
evidence. Watson, 204 S.W.3d at 417. Appellant’s issue regarding the factual
sufficiency of the evidence is overruled.
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Conclusion
Having overruled appellant’s issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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