Northington Butler, III v. State ( 2010 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00242-CR
Northington BUTLER, III,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CR-3980
Honorable Raymond Angelini, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: February 3, 2010
AFFIRMED
A jury found appellant Northington Butler, III guilty of possession of a controlled substance,
four to two-hundred grams, and assessed punishment at thirty years’ confinement. In his sole issue
on appeal, appellant argues the evidence is factually insufficient to sustain his conviction. We
affirm.
04-09-00242-CR
BACKGROUND
On March 6, 2007, Detective William Garcia received information that a person in a white
vehicle was in possession of narcotics. After receiving information on its approximate location,
Detective Garcia located the vehicle and instructed two uniform officers to “get behind the vehicle
and try to obtain some type of probable cause . . . .” Officer David Nouhan, one of the two patrol
officers who initiated the stop, testified the vehicle had a “busted” tail light. Officer Nick Stromboe,
the other patrol officer, similarly testified the vehicle had a “broken” tail light. Upon making the
traffic stop, Officer Stromboe approached the driver—whom he identified as appellant—and told
him, “Look, I pulled you over because you had a broken tail light . . . .” Officer Stromboe then
added, “Narcotics is following you. They have information that you’re holding cocaine, so that’s
what I’m stopping you for.” Appellant admitted to the officer that he had cocaine in his rear
waistband. Appellant then exited his vehicle; Stromboe handcuffed appellant’s hands behind his
back, read him his Miranda rights, and placed him in the back of the patrol car. The officers then
drove both vehicles to a nearby church parking lot and met up with Detective Garcia. Detective
Garcia spoke with appellant, and, while handcuffed and sitting in the back seat of the patrol car,
appellant pulled from his waistband a bag containing what appeared to be cocaine. Brian Cho, a
forensic scientist supervisor at the Bexar County Crime Lab, testified the bag contained
approximately twenty-five grams of cocaine.
FACTUAL SUFFICIENCY
In his sole issue on appeal, appellant argues the evidence presented at trial was factually
insufficient to sustain his conviction for possession of a controlled substance. Specifically, appellant
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argues the “lack of evidence to support the probable cause for the [traffic] stop should be considered
within the framework of the Court’s consideration of the factual sufficiency review as a whole.”
Additionally, appellant states “we are asked to believe that after Appellant admitted that he had
narcotics on his person, he was handcuffed and placed in the patrol vehicle with the narcotics still
on his person and left there until a detective arrive[d] and then [appellant] retreive[d] the narcotics
while still handcuffed.”
We review the factual sufficiency of the evidence under the appropriate standard of review.
See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (factual sufficiency); Clewis
v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same
in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim.
App. 1999). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony; therefore, reconciliation of any conflicts in the evidence is
within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App.
1998).
At the outset, we note a factual sufficiency review “is not appropriate as to the admissibility
of evidence when such a question is submitted to the jury pursuant to Article 38.23(a).” See Hanks
v. State, 137 S.W.3d 668, 672 (Tex. Crim. App. 2004). Appellant requested and received an Article
38.23(a) instruction in the jury charge pertaining to the admissibility of the cocaine obtained by
police after stopping appellant for a broken tail light. See TEX . CODE CRIM . PROC. ANN . art. 38.23(a)
(Vernon 2005) (“the jury shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, . . . the jury shall disregard any
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such evidence so obtained”). Because appellant is not entitled to a factual sufficiency review of the
probable cause to stop his vehicle, we limit our factual sufficiency review to the State’s proof as to
the elements of the offense. See Hanks, 137 S.W.3d at 672.
A person commits a second degree felony if he knowingly or intentionally possesses four to
two-hundred grams of cocaine. See TEX . HEALTH & SAFETY CODE ANN . § 481.115(a), (d) (Vernon
2003). Here, the evidence shows that on March 6, 2007, officers pulled over appellant’s vehicle for
having a broken tail light. When Officer Stromboe first talked to appellant, appellant admitted he
had cocaine in his waistband. After appellant was placed under arrest and put in the back seat of the
patrol car, Detective Garcia witnessed appellant produce a bag containing what appeared to be
cocaine. Subsequent testing revealed the bag contained approximately twenty-five grams of cocaine.
Although appellant cross-examined the State’s witnesses, it was for the jury to determine the
credibility of the witnesses and the weight to give their testimony and the evidence adduced. We
conclude the evidence was factually sufficient to sustain the conviction for possession of a controlled
substance.
CONCLUSION
Because we overrule appellant’s sole issue on appeal, we affirm the judgment of the trial
court.
Sandee Bryan Marion, Justice
Do Not Publish
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