Opinion
NO. 02-15-00280-CR
05-26-2016
SUZANNE AKUA ASANTE APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1398720 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Suzanne Asante appeals her conviction for possession of marijuana. In four issues, Asante challenges the sufficiency of the evidence to support her conviction and the trial court's admission of certain evidence. We affirm.
I. BACKGROUND
On January 14, 2015, two officers with the Fort Worth Police Department, John Bustillos and Dusty Dwyer, were on patrol together in a marked police car. At 11:40 p.m., they noticed a car coming toward them with a left front headlight out. The officers pulled the car over. As Dwyer approached the car, the driver rolled down her window and some smoke blew out of the car into Dwyer's face. He immediately recognized the smell of marijuana emanating from the car. The driver of that car was Asante.
Dwyer observed that Asante had watery, bloodshot eyes. He removed Asante and her two male passengers from the car. One of the passengers had been sitting in the front passenger seat, the other in the back seat. The front-seat passenger, Nicolas Moss, was Asante's boyfriend and the owner of the car. Dwyer asked Asante for permission to search the car, but she refused, stating that she did not have any illegal drugs or firearms in the car. Dwyer determined that he had probable cause to search the car and while doing so, he and Bustillos discovered a small red bag containing a leafy green substance in the front passenger-side air vent and an identical red bag, containing some residue, in a purse located between the two front seats. Asante told Dwyer that the purse was hers. Dwyer questioned Moss, who admitted that Asante was his girlfriend and that he, Asante, and the backseat passenger had been driving around all day "smok[ing] weed."
When Bustillos first approached the car and spoke with Moss, he smelled the strong odor of marijuana. Bustillos later approached Asante and spoke with her after she was out of the car and separated from her two passengers. Bustillos also noticed that Asante's eyes were bloodshot and watery. Bustillos reported that he could smell marijuana directly emanating from Asante, who was standing far enough away from the other two passengers that Bustillos was certain the smell was coming from her.
Asante was charged by information with the offense of possession of a usable quantity of marijuana of two ounces or less. See Tex. Health & Safety Code Ann. § 481.121 (West 2010). At trial, Asante testified that (1) the purse containing the marijuana was not hers, (2) she had not smoked any marijuana in the car, (3) she had not smelled any marijuana in the car, (4) Moss was not her boyfriend, (5) she could not reach the passenger-side air vent from the driver's seat, and (6) she did not know why Bustillos and Dwyer would lie. A jury found Asante guilty of the charged offense, and the trial court sentenced her to ninety days' confinement, suspended imposition of the sentence, and placed her on community supervision for six months.
II. SUFFICIENCY OF THE EVIDENCE
In two issues on appeal, Asante contends that her conviction should be reversed because the evidence is insufficient to prove beyond a reasonable doubt that she actually possessed the marijuana or that the material discovered in the red bags was marijuana.
A. STANDARD AND SCOPE OF REVIEW
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). 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. Id. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
B. EVIDENCE REGARDING POSSESSION
In her first issue, Asante argues that the evidence is insufficient to show that she was in possession of any of the marijuana Dwyer and Bustillos found in the car. The State responds that there is sufficient evidence affirmatively linking Asante to the marijuana to establish that she was in possession of it.
At trial, the State was required to prove beyond a reasonable doubt that Asante knowingly or intentionally possessed a usable quantity of marijuana. Tex. Health & Safety Code Ann. § 481.121(a). "Possession" is defined as "actual care, custody, control, or management." Id. § 481.002(38) (West Supp. 2015). The State proves unlawful possession of a controlled substance by showing that the accused exercised control, management, or care over a substance the accused knew was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State must prove that the defendant's connection with the drug was more than fortuitous. Id. As in this case, when the accused is not in exclusive possession of the place where the substance is found, there must be additional independent facts and circumstances that affirmatively link the accused to the drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Such evidence includes (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 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. at 162 n.12; Olivarez v. State, 171 S.W.3d. 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). No set number of affirmative links results in a de facto inference that possession was knowing; affirmative links are established by the totality of the circumstances. See Evans, 202 S.W.3d at 162; Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd).
Bustillos and Dwyer testified that there was a usable amount of marijuana in the bag discovered in the passenger-side air vent and that this area was within Asante's reach. "It is well settled that an accused may with another or others jointly possess dangerous drugs or narcotics and that such possession need not be exclusive." Reyes v. State, 575 S.W.2d 38, 39-40 (Tex. Crim. App. [Panel Op.] 1979). But mere presence alone at a location where drugs are found does not justify a finding of joint possession. Evans, 202 S.W.3d at 162.
The evidence linked Asante to the marijuana found in the car. The jury could have found that Asante was located such that she was able to place the marijuana in the air vent as she was being pulled over by the police. Asante was driving Moss's car. The marijuana in the passenger-side air vent was within her reach. Also, a red baggie containing marijuana residue was found in a purse next to her between the two front seats. Asante admitted to Bustillos that the purse was hers. Asante smelled of marijuana and her eyes were bloodshot and watery. Moss admitted to Dwyer that he, Asante, and the other passenger had been smoking "weed" all day. Viewing the evidence in the light most favorable to the jury's verdict, we hold that there was sufficient evidence to allow a rational trier of fact to find that Asante intentionally or knowingly possessed the marijuana found in the car. See, e.g., Robinson v. State, 174 S.W.3d 320, 326-30 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd); Gallegos v. State, 776 S.W.2d 312, 315 (Tex. App.—Houston [1st Dist.] 1989, no pet.). We overrule Asante's first issue.
C. EVIDENCE THAT SEIZED SUBSTANCE WAS MARIJUANA
In her second issue, Asante argues that there is insufficient evidence to prove beyond a reasonable doubt that the substance discovered in the car was marijuana. Asante contends that to meet its burden of proof, the State was required to call an expert witness establishing the content of the substance seized and to introduce the actual test results confirming that the substance was marijuana. The State responds that it met its burden of proof by offering Bustillos's and Dwyer's opinion testimony, who both testified that they recognized the substance discovered as marijuana based on their training and experience.
The court of criminal appeals has held that the State may prove that a substance is marijuana through the opinion testimony of the police officer who seized the marijuana if he is familiar with it through past experience or training. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). Expert-witness testimony is unnecessary because marijuana is easily identifiable by its distinctive green, leafy appearance and by its distinct smell. Id. Texas Rule of Evidence 701 permits this testimony because the content of the seized substance was within the personal knowledge of the officer and would assist the jury in determining an ultimate fact in the case. Id. at 535; see also Thompkins v. State, Nos. 02-12-00526-CR, 02-12-00527-CR, 2013 WL 5517875, at *5 (Tex. App.—Fort Worth Oct. 3, 2013, pet. ref'd) (mem. op., not designated for publication).
Both Dwyer and Bustillos testified that they immediately recognized the substance seized from the car as marijuana. They both explained to the jury that their opinions were based upon their professional training and experience. These past opportunities allowed the officers to identify the substance as marijuana through (1) the unique appearance of the green, leafy substance, (2) the smell of the substance in the baggies, and (3) the smell of the smoke coming out of the car. Dwyer testified that his opinion was based on his training at the police academy, where he was shown a "big . . . block" of marijuana that he saw and smelled. Bustillos, a six-year veteran of the Fort Worth Police Department, testified that he could identify the substance as marijuana based on his experience as a peace officer and his training at the academy. Bustillos also testified that test results confirmed that the substance was marijuana. Viewing this evidence in the light most favorable to the verdict, we hold that there was sufficient evidence in the record for a jury to find beyond a reasonable doubt that the substance in the bags was marijuana. See Deshong v. State, 625 S.W.2d 327, 329-30 (Tex. Crim. App. [Panel Op.] 1981); see also Ramirez v. State, No. 11-13-00266-CR, 2015 WL 5191445, at *2-3 (Tex. App.—Eastland Aug. 21, 2015, no pet.) (mem. op., not designated for publication) (collecting cases). We overrule Asante's second issue.
III. ADMISSION OF EVIDENCE
In her last two issues, Asante argues that the trial court erred by "readmitting" a video of the stop and subsequent investigation, which was taken from Bustillos's body camera, to impeach Asante after she testified at trial that Moss was not her boyfriend. She also contends that the trial court erred when it admitted the bags of marijuana into evidence because the State did not prove the required chain of custody from the time the evidence was seized until it was opened at trial.
A. STANDARD OF REVIEW
The admissibility of evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Osbourn, 92 S.W.3d at 537-38. This standard requires an appellate court to uphold a trial court's ruling when it is within the zone of reasonable disagreement. Powell, 63 S.W.3d at 438.
B. VIDEO
During Bustillos's testimony at trial, the State offered the video for admission into evidence as "a fair and accurate depiction of what happened during the stop" and to "help the Court and jury [determine] what happened that night." Asante had no objection to the video, the trial court admitted the video into evidence, and the video was published to the jury. When Asante later testified, she stated that Moss was "just a friend" and that they had never been in a relationship. When the State cross-examined Asante, the prosecutor had Asante confirm that she had testified that Moss was not her boyfriend, determined that Asante did not "remember" ever saying that Moss was her boyfriend, and asked the court for permission to "play the video again and show the jury where she did state [Moss] was her boyfriend on the video." Asante objected to the video being shown to the jury because whether or not Moss was her boyfriend was not relevant to a fact at issue in the case. See Tex. R. Evid. 401. The trial court overruled Asante's objection, and the operative portion of the video was republished to the jury.
The video was admitted into evidence during the State's case, and Asante raised no objection to the admission of the video. Accordingly, Asante has not preserved for our review any argument regarding the admission of the video.See Tex. R. App. P. 33.1(a); Holmes v. State, 248 S.W.3d 194, 201 (Tex. Crim. App. 2008). Similarly, Asante has forfeited her appellate argument that the video was inadmissible as impeachment evidence because it did nothing more than "show[] acts in conformity with character." See Tex. R. Evid. 404(b)(1). Asante did not raise this argument at trial. See Tex. R. App. P. 33.1(a).
Asante contends that the State "readmitted" the video to impeach Asante. The video was not "readmitted"; it was admitted with no objection, and the State later republished a portion of the video to the jury to impeach Asante. Thus, this is not a case in which evidence admitted at the guilt-evidence phase of a trial was readmitted at the punishment phase. See, e.g., Madry v. State, 200 S.W.3d 766, 770 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd).
But Asante raised at trial her appellate argument that the State's subsequent use of the video to impeach her testimony was not relevant to a fact of consequence to the case and, thus, should not have been allowed. See Tex. R. Evid. 401. Therefore, this argument is preserved for our review. See Tex. R. App. P. 33.1(a). The nature of the relationship between Asante and Moss was relevant to establish her link to, and thus her possession of, the marijuana found in the car she was driving. See Gallegos, 776 S.W.2d at 314; see also Bishop v. State, No. 02-13-00562-CR, 2015 WL 10438841, at *8 (Tex. App.—Fort Worth Dec. 10, 2015, no pet.) (mem. op., not designated for publication) (including as an affirmative link to contraband whether the accused had a relationship to other persons who had access to location where drugs were found). Additionally, the State was entitled to attack Asante's credibility by referring to her prior, inconsistent statement regarding her relationship with Moss, which she denied making. See Tex. R. Evid. 613(a), 806; see also Del Carmen Hernandez v. State, 273 S.W.3d 685, 688-89 (Tex. Crim. App. 2008) (discussing rules 613(a) and 806 as allowing impeachment evidence even if hearsay). Therefore, the trial court did not abuse its discretion by overruling Asante's relevance objection to the State's use of the video to impeach Asante. We overrule issue three.
C. CHAIN OF CUSTODY
In her final issue, Asante contends that the seized substance should not have been admitted into evidence because the State failed to establish the appropriate chain of custody after it was seized. The State conclusively proves the appropriate chain of custody for physical evidence if the testifying officer states that he (1) seized the physical evidence at the scene, (2) placed on and later identified his personal mark on the evidence, and (3) placed the evidence into the property room and later retrieved it for trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997).
At trial, Dwyer testified regarding the chain of custody:
[Prosecutor]. Did you bring the marijuana with you to court today?
[Dwyer]. I did.
Q. And how do you know it's the same marijuana that you seized that day of the arrest?
A. It's in the same property envelope that I had sealed at the property room marked with my badge number and initials showing the seal is still valid.
. . . .
[Asante's counsel objected to the admission of the marijuana because the State had not shown the proper chain of custody, which the trial court sustained.]
Q. When you seized the drugs that night, what did you do with them after the arrest?
A. After the arrest they went with me to the jail for them to be field tested so we had the appropriate amount to put on the charge, which was .02 ounces. After it was entered in the affidavit, we took the marijuana to the property room and had it sealed into this plastic baggie here and then sealed in this envelope, marked, taped with my initials.
Q. You were the one who weighed the evidence once it got back to the jail?
A. Correct.
Q. Were you the one who retrieved the evidence today in preparation to bring it here today?Asante's counsel then questioned Dwyer about what happened once the marijuana was logged into the property room, and Dwyer stated that he did not see the drugs again until trial. Asante renewed her prior chain-of-custody objection to the admission of the drugs, which the trial court overruled. Asante again argues that this evidence was erroneously admitted "without a proper chain of custody."
A. Correct.
Q. And you recognize this as the marijuana that you seized on January 14, 2015?
A. Yes.
In the absence of any evidence of tampering, any issue regarding care and custody of evidence goes to its weight and not to its admissibility. Id.; see Tex. R. Evid. 901(a). Asante does not argue that the evidence was tampered with and, indeed, our review of the record reveals no such affirmative evidence of tampering. The State established the beginning and the end of the chain of custody, which is all that is required for admissibility. Glenn, 475 S.W.3d at 541-42. The trial court did not abuse its discretion by admitting the marijuana into evidence over Asante's chain-of-custody objection. See, e.g., Hall v. State, 13 S.W.3d 115, 120-21 (Tex. App.—Fort Worth 2000), pet. dism'd, 46 S.W.3d 264 (Tex. Crim. App. 2001); Dossett v. State, 216 S.W.3d 7, 20-21 (Tex. App.—San Antonio 2006, pet. ref'd); see also Williams v. State, No. 2-06-416-CR, 2008 WL 1867979, at *10-11 (Tex. App.—Fort Worth Apr. 24, 2008, pet. ref'd) (not designated for publication). We overrule issue four.
We disagree with Asante's argument that the State did not establish the end of the chain of custody because Dwyer "did not say that he logged it in." Dwyer testified that after he weighed the marijuana at the jail, he "had it sealed" with his initials, he took it to the property room, and the marijuana "was logged in the property room." Dwyer further testified that the envelope produced by the State at trial bore the mark he placed on it before it was logged into the property room. This was sufficient proof of the end of the chain of custody. See, e.g., Glenn v. State, 475 S.W.3d 530, 542-43 (Tex. App.—Texarkana 2015, no pet.); Murray v. State, 864 S.W.2d 111, 117 (Tex. App.—Texarkana 1993, pet. ref'd). --------
IV. CONCLUSION
Having overruled Asante's issues, we affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: MEIER, GABRIEL, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 26, 2016