Jimmy Lee Garcia v. State

IN THE
TENTH COURT OF APPEALS
No. 10-17-00116-CR
JIMMY LEE GARCIA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. F49872
MEMORANDUM OPINION
Jimmy Lee Garcia was convicted of possession of a controlled substance and, after
the jury found two enhancement paragraphs to be true, was sentenced to life in prison.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2017). Because the evidence was
sufficient to prove Garcia possessed methamphetamine, the trial court conducted a
sufficient inquiry into the reasonableness of prospective witnesses’ assertions of a Fifth
Amendment privilege, and the trial court did not abuse its discretion in admitting certain
evidence, the trial court’s judgment is affirmed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Garcia contends the evidence was insufficient to support a
conviction for possession of a controlled substance. Specifically, Garcia argues the
evidence was insufficient to prove he possessed the methamphetamine.
Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency of the evidence issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly
and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the
conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
Garcia v. State Page 2
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "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 v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
choose to believe all, some, or none of the testimony presented by the parties. Chambers
v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Possession and Affirmative Links
To prove unlawful possession of any controlled substance, "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."1 Evans v. State, 202 S.W.3d 158,
161 (Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West
2017) ("'Possession' means actual care, custody, control, or management."). Possession is
not required to be exclusive. See Evans, 202 S.W.3d at 162 n.12. When a defendant is not
in exclusive possession of the place where the controlled substance is found, then
additional, independent facts and circumstances must affirmatively link the defendant to
the substance in such a way that it can reasonably be concluded that the defendant
1
Garcia does not contest that he knew the substance was contraband. His focus is on whether he exercised
control, management, or care over the substance.
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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). In other words, the evidence "must establish, to the requisite level of
confidence, that the accused's connection with the [contraband] was more than just
fortuitous," which may be established by direct or circumstantial evidence. Brown v. State,
911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
Evidence of any number of factors may help establish the connection between the
defendant and the contraband. Evans, 202 S.W.3d at 162 n.12. (listing 14 non-exclusive
factors). Not all of the factors must be proved; rather, it is the cumulative logical force
the evidence has in proving possession that we must consider. See James v. State, 264
S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Additionally, the
absence of evidence of some of the factors is not evidence of innocence that must be
weighed against the factors that are present. See id. Rather, proof of a factor is used to
assess the sufficiency of the evidence linking the defendant to the knowing possession of
contraband. See e.g., Roberson v. State, 80 S.W.3d 730, 735-36 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref'd); Allen v. State, 249 S.W.3d 680, 694 n.13 (Tex. App.—Austin 2008, no
pet.) (explaining that presence or absence of factors "aid appellate courts in determining
the legal sufficiency of the evidence in knowing possession of contraband cases").
Ultimately, the inquiry is whether, based on the combined and cumulative force of the
evidence and any reasonable inferences therefrom, a jury was rationally justified in
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finding guilt beyond a reasonable doubt. Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim.
App. 2016).
Relevant Facts/Application
Although Garcia was not in exclusive possession of the premises where the
methamphetamine was found, there was sufficient evidence to link him to it. The record
reflects that officers for the Cleburne Police Department arrived at an apartment to arrest
two people, Randy Pullen and Kendra Shelby, on felony warrants. Upon initially seeing
Officer Davenport within a few feet outside the apartment door, Garcia suddenly went
back inside the apartment, walked quickly to the sole bedroom which was very small, sat
down on a chair in the corner of the room while facing the doorway to the bedroom.
Shelby followed Garcia into the bedroom and briefly stood by an aquarium before being
ordered out of the bedroom by Officer Davenport.
While seated in the bedroom, Garcia reached behind him toward the floor where
two of the drug exhibits, a glass vial containing 2.37 grams of methamphetamine and a
yellow baggie containing .08 grams of methamphetamine, were located. The third drug
exhibit, a blue baggie containing .14 grams of methamphetamine, was also found in the
bedroom by an aquarium within a few steps from where Garcia was sitting. Drug
paraphernalia was also located on the floor under the chair where Garcia was sitting.
That paraphernalia included syringes, alcohol wipes, a rubber tourniquet, a digital scale,
and a metal measuring spoon.
Garcia v. State Page 5
Two bags/backpacks within arm’s reach of the chair where Garcia was sitting in
the bedroom were determined to belong to Garcia. Drug paraphernalia, including
needles and three empty yellow plastic baggies similar to the yellow plastic baggie found
beneath the chair on which Garcia was sitting, was discovered inside one of the bags.
In reviewing this evidence in the light most favorable to the verdict, we find that
the evidence was sufficient for the jury to find Garcia guilty of possessing the
methamphetamine. Garcia’s first issue is overruled.
FIFTH AMENDMENT PRIVILEGE
In his second issue, Garcia contends the trial court failed to conduct a sufficient
inquiry into the reasonableness of David Curtis’s and Kendra Shelby’s assertion of the
Fifth Amendment privilege against self-incrimination.
The Fifth Amendment, made applicable to the states by the Fourteenth
Amendment, provides that, "no person ... shall be compelled in any criminal case to be a
witness against himself." U.S. CONST. amend. V; Walters v. State, 359 S.W.3d 212, 215 (Tex.
Crim. App. 2011). This privilege extends not only to answers that would in themselves
support a conviction, but also includes those which would furnish a link in the chain of
evidence needed to prosecute the claimant. Walters, 359 S.W.3d at 215. "[I]t need only be
evident from the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be answered might
be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S.
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479, 486-87, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); Walters, 359 S.W.3d at 215.
Trial courts are not to simply take the word of potential witnesses who claim to
fear prosecution. Walters, 359 S.W.3d at 215. Rather, trial courts are required to inquire
into the source and reasonableness of that fear. Id. The trial judge, in appraising the
claim, "must be governed as much by his personal perceptions of the peculiarities of the
case as by the facts actually in evidence." Hoffman, 341 U.S. at 487; Walters, 359 S.W.3d at
215.
Relevant Facts
After the State rested its case, Garcia sought to compel the testimony of David
Curtis and Kendra Shelby. Both prospective witnesses were subpoenaed to appear in
court and appeared with counsel. Both asserted their Fifth Amendment privilege. In
separate hearings outside the presence of the jury, Garcia proposed the questions he
would ask of each witness. As to Curtis, Garcia would ask: (1) whether Curtis was
depicted in State's Exhibit No. 11; (2) whether his bedroom was depicted in State's Exhibit
No. 4; and (3) if anyone else slept in the bedroom depicted in State's Exhibit No. 4. As to
Shelby, Garcia wanted to ask: (1) whether she was at the apartment on the date of
Garcia’s arrest; (2) whether she recognized State's Exhibit No. 4, a photograph of the
bedroom; and (3) whether she was in the bedroom on the date of Garcia’s arrest. He also
wanted to ask Shelby to: (1) identify the backpacks depicted in State’s Exhibit 15; (2)
identify the backpacks in State’s Exhibit 6; (3) confirm that she told Officer Davenport
Garcia v. State Page 7
that the methamphetamine found was Garcia’s; and (4) confirm that in consideration for
this information, she was not charged with possession of methamphetamine. Both
Curtis’s and Shelby’s attorney’s explained to the Court that based on these questions,
their clients would invoke their right not to testify.
Application
The statute of limitations for the offense had not run. Thus, both Curtis and Shelby
could expose themselves to prosecution if they answered Garcia’s questions a certain
way. Curtis was the person who rented the apartment. It was his bedroom in which the
drugs and paraphernalia were found. Shelby followed Garcia into the bedroom when
the police arrived. She stood by the aquarium where the blue baggie of
methamphetamine was found. Further, if Shelby identified any of the “backpacks” as
belonging to her, she could also be charged with possession of drug paraphernalia.
The trial court’s inquiry need not be more than what occurred in this case. See
Walters v. State, 359 S.W.3d 212, 216-217 (Tex. Crim. App. 2011). The questions
propounded, the argument of counsel, and the testimony in evidence, were sufficient to
establish the fear of incrimination for both Curtis and Shelby. Accordingly, after
reviewing the record, we hold the trial court conducted a sufficient inquiry into the
reasonableness of Curtis’s and Shelby’s invocation of the Fifth Amendment privilege.
Garcia’s second issue is overruled.
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RULES 401 AND 403
In his third, and final, issue, Garcia asserts that the trial court erred in admitting
into evidence the digital scales located in the same area as the methamphetamine for
which Garcia was charged with possessing. Specifically, Garcia argues that the scales
were irrelevant and the probative value of admitting the scales was substantially
outweighed by the danger of unfair prejudice.
Standard of Review
We review a trial court's decision regarding the admissibility of evidence under
an abuse of discretion standard and uphold a trial court's admissibility decision when
that decision is within the zone of reasonable disagreement. Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009); Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).
If the ruling was correct on any theory of law applicable to the case, we must uphold the
judgment. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).
Rule 401-Relevance
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.
Garcia actively contested the possession element of the offense. And while not
actively contested, the State was, nevertheless, also required to prove Garcia knew the
substance was contraband. Whether “other contraband or drug paraphernalia were
Garcia v. State Page 9
present” is included in the list of evidentiary factors which may be used to prove a
person’s possession of contraband. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim.
App. 2006). Thus, evidence of a digital scale, which Officer Davenport stated could be
used by drug users and drug dealers, tended to make Garcia’s possession of the
methamphetamine more probable, and thus, was relevant.
Rule 403-Probative Value
"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice…” TEX. R. EVID. 403. Rule
403 favors admission of relevant evidence and carries a presumption that relevant
evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex.
Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). In
considering a Rule 403 objection, the trial court must balance (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 a 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 (Tex. Crim. App.
2006).
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The trial court has broad discretion in conducting a Rule 403 balancing test, and
we will not lightly disturb its decision. Allen, 108 S.W.3d at 284. All testimony and
physical evidence will likely be prejudicial to one party or the other. Jones v. State, 944
S.W.2d 642, 653 (Tex. Crim. App. 1996). It is only when there exists a clear disparity
between the degree of prejudice of the offered evidence and its probative value, in other
words, the evidence is unfairly prejudicial, that Rule 403 is applicable. Id.; see Montgomery
v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991, op. on rhg).
The presence of the scale underneath the chair where Garcia was sitting, along
with the drugs and paraphernalia located in the small space of the room, strengthens the
inference that Garcia was in possession of the methamphetamine. Thus, the evidence
was necessary and probative. The evidence did not consume an inordinate amount of
time to present and was not repetitive of evidence already admitted. That the jury might
think that Garcia was a drug dealer because a digital scale was introduced into evidence
was minimal, especially in light of the other types of paraphernalia, such as syringes,
needles, a tourniquet, and alcohol wipes, which suggested Garcia used drugs, that were
located near the scale and also in a bag belonging to Garcia.
Based on our review of the record, the trial court, after balancing the various Rule
403 factors, could have reasonably concluded that the probative value of the digital scale
was not substantially outweighed by the danger of unfair prejudice.
Accordingly, the trial court did not abuse its discretion in admitting the digital
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scale into evidence, and Garcia’s third issue is overruled.
CONCLUSION
Having overruled each issue presented by Garcia, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 11, 2018
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