James Hamey Bordages v. State of Texas ( 2002 )

Willie Thornton v. State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-00-222-CR

     JAMES HAMEY BORDAGES,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 351st District Court

Harris County, Texas

Trial Court No. 817208

                                                                                                                                                                                                                         

O P I N I O N

                                                                                                               Â

      Appellant James Hamey Bordages was convicted by a jury of the offense of possession of cocaine in an amount less than one gram and was sentenced to seventeen years’ confinement after pleading “true” to the indictment’s two enhancement paragraphs. He appeals, alleging in two points that the evidence was legally and factually insufficient to support his conviction. We will affirm.

      Cocaine was found in a pocket of appellant’s shorts. His specific complaint on appeal is that there was insufficient evidence proving that he knew what was in his shorts. According to appellant, because his own pants were soiled, he borrowed the shorts from a co-worker and changed his clothes only “a moment” before the arrest. Appellant’s theory was contradicted by the testimony of a police officer, who testified appellant had been under surveillance and that he was not seen changing his clothes. During the arrest, appellant made false statements, including false identification, but never indicated the shorts he was wearing were not his.

      In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

      In determining the legal sufficiency of the evidence to show appellant's intent, and faced with a record that supports conflicting inferences, we "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution." Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

      The jury in appellant’s case heard contrasting versions of the events leading to the arrest and heard counsel for both sides advance their respective positions during jury argument. Viewing the evidence in the light most favorable to the verdict, we rule the evidence was legally sufficient to prove the shorts appellant wore at the time of his arrest were his. Appellant was wearing the shorts, the shorts contained cocaine, and the jury was free to disbelieve appellant’s claim that he had just put the shorts on in the street and had no connection to the cocaine found in the shorts pocket.

      In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. In performing this review, we are to give due deference to the fact finder’s determinations. Id. at 8-9; Clewis, 922 S.W.2d at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). As noted above, the jury heard two versions of the events leading to appellant’s arrest. The jury’s implicit determination that the shorts appellant wore were his is not greatly outweighed by contrary proof. In other words, the jury was free to disbelieve appellant’s testimony that his shorts belonged to someone else. Giving due deference to the jury’s determination, we are constrained to overrule appellant’s factual sufficiency challenge.

      Points one and two are overruled, and the trial court’s judgment is affirmed.

 

DAVID L. RICHARDS

                                                                       Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Richards (Sitting by Assignment)

Affirmed

Opinion delivered and filed June 19, 2002

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at the scene, Hardaway had just arrived at the scene as well. On re-cross-examination, the following exchange between the State, Sparks, defense counsel, and the Court occurred.

State:               Do you not remember telling me that when you

                        would sell those drugs that were, that day that Harry

                        would go inside the house?

 

Witness:         Yeah, I never said that house.  I said my grandfather’s

                        house next door.

 

State:               He would go inside your grandfather’s house; right? 

 

Witness:         Yes, sir.

 

State:               So how could he be there for just two minutes when

                        you’re doing, when you’re selling drugs and he’s

                        going in – he just happened to go inside every time

                        you were selling drugs?

 

Witness:         It wasn’t his day.  I said my grandfather’s house.

When I caught this charge, I was next door at that

house.  And Harry had just walked up, that’s what I

told him.

 

Defense:         Okay, your Honor, then I’m going to renew my

objection to relevance because I think that we’re

talking about some other time, some other, some

other deal.  We’re not talking here – are you talking

about that day or are you talking about some other

time?

 

Witness:         He just asked me, I was just asked if Harry had been

around once when I was selling drugs.

 

Defense:         Okay.  Thank you.  But the testimony you are giving

right now has nothing to do with that day, does it?

 

Witness:         No, sir.

 

State:               We’ll move on, judge.

 

Court:             All right.  I’ll sustain it.  Do you want an instruction,

 [counsel]?

 

Defense:         Yeah, I want an instruction, your Honor.

 

State:               We’ll, actually we’ll withdraw the question and then

we’ll ask that -

 

Defense:         Your Honor, I ask for, one, I want to renew my

objection.

 

Court:             Okay.

 

Defense:         Is that objection granted to the relevance?

 

Court:             That’s, if we’re – are we talking about another day?

 

Defense:         Yeah, things that, apparently it looks to me that –

 

Court:             That is granted.

 

Defense:         And I want to ask that it be stricken from, that his

                        testimony with regard to things from other than that

                        day be stricken from the record.

 

Court:             It will be stricken from the record.  The jury is

instructed to disregard any testimony about any other

day other than the day in question which is –

 

***

 

Defense:         February 6th, 2009.

 

Court:             Okay.

 

Defense:         And I’m further going to ask for a mistrial, your

                        Honor.

 

Court:             That mistrial is denied.

 

When the trial court sustains a defendant’s objection, grants a requested instruction to disregard, but denies a motion for mistrial, the issue is whether the refusal to grant the mistrial was an abuse of discretion.  Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004).  Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.  Id. at 77.  Although this case does not present an improper argument issue, we still use the Mosley factors in determining whether the answers given in response to the prosecutor’s questions warranted a mistrial: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).  Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

Assuming without deciding that the question asked by the State was improper, the impropriety was not severe.  The State’s question could be read as asking what Hardaway had done the day of the offense.  It was Hardaway’s counsel that emphasized the State’s question may have been about prior activities.  Even the trial court had to clarify what day was being referred to in the question.  Further, the trial court struck the testimony and instructed the jury to disregard any testimony about any other day other than the day of the offense.  This instruction was clear and specific.  Finally, the evidence against Hardaway, even though circumstantial, was sufficient to convict Hardaway even without the question asked by the State.  Accordingly, the trial court did not abuse its discretion in denying Hardaway’s motion for mistrial.  This issue is overruled.

Conclusion

Having overruled each issue properly presented on appeal, we affirm the judgment of the trial court.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Affirmed

Opinion delivered and filed March 30, 2011

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