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Blum v. State

Court of Appeals of Texas, Fifth District, Dallas
Jan 26, 2009
No. 05-08-00152-CR (Tex. App. Jan. 26, 2009)

Opinion

No. 05-08-00152-CR

Opinion Filed January 26, 2009. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-81916-06.

Before Justices BRIDGES, RICHTER, and MAZZANT. Opinion By Justice RICHTER.


OPINION


William Blum appeals his conviction for possession of a controlled substance in an amount more than 4 grams but less than 200 grams. In three issues, appellant maintains the evidence is legally and factually insufficient to support his conviction and the trial court erred by failing to admit a portion of an out-of-court statement offered under Tex. R. Evid. 803(4). Finding no reversible error, we affirm the trial court's judgment.

Background

On April 11, 2006, appellant was a passenger in a vehicle traveling on a public highway in Plano, Texas. Plano police officer Benjamin Thurmond observed that the vehicle failed to signal a turn, so he activated his overhead lights. When the vehicle did not pull over right away, the officer suspected the driver had something to hide or was looking for a place to run. The vehicle eventually stopped. When Officer Thurmond approached the vehicle, he observed that the passenger and the driver both appeared nervous so he called for backup. Stephen Freeman was the driver of the vehicle. Officer Thurmond stood at the driver's side window to speak to Freeman and appellant, and remarked to appellant that he "looked high." Appellant was not sitting still, so Officer Thurmond advised him to keep his hands on the dashboard. Freeman told Officer Thurmond there was methamphetamine on the passenger side of the car. In the meantime, Officer James Wicker arrived on the scene in response to Officer Thurmond's call. Officer Wicker could see appellant moving around inside the vehicle. As Officer Wicker got closer to the vehicle, he could see that appellant was shuffling his feet on the floorboard in an attempt to kick a large baggie under the seat. The officer retrieved the baggie, which contained 100 grams of red phosphorus (a substance used to make methamphetamine), and three smaller baggies of crystal methamphetamine weighing about 20 grams. Freeman volunteered that he was a drug dealer and he and appellant had just come from a drug deal at the Shell gas station. He also told the police appellant was a methamphetamine cook. Freeman offered to orchestrate an undercover purchase so he was driven to another location to conduct the deal. Freeman was neither arrested nor charged with an offense. Appellant was arrested and subsequently charged by indictment for possession of no less than 4 and no more than 200 grams of methamphetamine with the intent to deliver. During the booking process, appellant admitted using methamphetamine two or three days earlier. Appellant pleaded not guilty and the case was tried before a jury. By the time of trial, appellant was on felony probation on a different charge of possession of methamphetamine and had violated that probation by failing a urinalysis. Freeman died prior to appellant's trial. In lieu of his testimony, appellant attempted to introduce into evidence a notarized statement made by Freeman in which Freeman admitted the drugs were his. The trial court admitted some of the statement but excluded one sentence. The admitted portion of the statement read:
I Stephen Freeman, on my own accord and without derest [sic] give freely this statment [sic] for the Collin County District Attorney and all concerned parties. On or around April 10, 2006, the night in which William B. Blum was arrested for possession, delivery, and manufacturing of a controlled substance. [sic] All illeagle [sic] drugs and contraband found in the automobile owned by Stacy Burns, belonged to myself (Stephen Freeman).
The portion of the statement the trial court excluded stated:
I (Stephen Freeman) take full and complete responsibility for all drugs and contraband found on the date, time and location in question.
Appellant testified at trial and admitted he had been addicted to methamphetamine off and on for thirty years. Although he did not deny using methamphetamine two or three days before he was stopped, he claimed he had given up the habit the day of the stop. Appellant knew that Freeman had sold methamphetamine in the past, but heard that he was no longer using it. Appellant testified that on the day in question, he did not have anything to do and wanted to stay away from drugs, so he went over to Freeman's house. Freeman and others were on the way out to get something to eat, and appellant rode with Freeman. Although Freeman stopped at a Shell gas station and met with an individual appellant recognized as "Mad Dog," appellant stated he did not know a drug deal was occurring. He did, however, see Mad Dog give Freeman some money. Following the rendevous with Mad Dog, according to appellant, Freeman pulled the red phosphorus out of a zipper bag and showed it to him. Appellant testified he did not know what it was until Freeman told him, and he did not want to have anything to do with it. Appellant admitted he was aware that red phosphorous is used to prepare methamphetamine. At that point, the police car's lights were illuminated and Freeman stuffed the phosphorous back into the bag and handed it to him. Freeman told appellant to throw the bag out the window, but he threw it on the floor or the vehicle. When the officer approached the vehicle, appellant was trying to kick the bag away from himself. Appellant claimed he did not know there was methamphetamine in the bag, but wanted to get the bag away from himself because he figured whatever was in there was probably illegal. Appellant stated that he had difficulty kicking the bag because he has trouble with his ankle. A videotape of the stop was admitted into evidence and played for the jury. At the conclusion of the trial, the jury declined to find appellant guilty of possession with intent to deliver and found him guilty of the lesser included offense of possession. The trial court assessed punishment at four years' imprisonment. This appeal followed.

Discussion

A. Sufficiency of the Evidence

In his first two issues, appellant argues the evidence is legally and factually insufficient to support his conviction. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual-sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). On a legal sufficiency challenge, we review all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). As the reviewing court, we must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 13. In a possession of a controlled substance case, the State is required to prove beyond a reasonable doubt that the accused knowingly or intentionally possessed a controlled substance. See Tex. Health Safety Code Ann. § 481.115 (Vernon 2003). Possession means "actual care, custody, control, or management." Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2008). Possession is established by evidence that the accused exercised control, management, or care over the substance and that the accused knew that the matter possessed was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995); Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet ref'd). The control over the contraband need not be exclusive; it can be jointly exercised by more than one person. Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). If the accused was not in exclusive possession of the contraband, the State is required to present evidence affirmatively linking him to it. See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). Regardless of whether the evidence is direct or circumstantial, it must establish that the connection between the drug and the defendant was more than fortuitous. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim App. 2006). Although this proposition was formerly known as the "affirmative links" rule, the Evans court announced that the word "affirmative" added nothing to the word "links" and that, in the future, it would be known as the "links" rule. Evans, 202 S.W.3d at 161-62 n. 9. Also in Evans, the court recognized a non-exclusive list of links courts have utilized, alone and in combination with others, to establish that a person possessed contraband. Evans, 202 S.W.3d at 162 n. 12. Those links are: (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. The number of factors linking appellant to the contraband is less important than the logical force with which all of the evidence, both direct and circumstantial, connects appellant to the contraband. Id. at 162. None of the factors are a litmus test but, rather, are some factors that might "circumstantially establish the legal sufficiency of the evidence to prove a knowing `possession.'" Id. Applying the links test to the instant case, the evidence adduced at trial showed appellant was in the enclosed space of a car with an individual he knew sold methamphetamine. He had just accompanied the individual to a gas station where he observed the exchange of money with a man he recognized as "Mad Dog." The bag of methamphetamine and other materials was in plain view on the floor of the car, and appellant admitted to having viewed at least part of the contents. The drugs were in proximity and accessible to appellant. The police observed that appellant was nervous, made furtive gestures, and appeared to be "high." Appellant admitted he had used methamphetamine two or three days earlier. A jury could reasonably infer that appellant's furtive gestures and kicking resulted from an effort to conceal the contraband. Though he professed ignorance about some of the contents of the bag, appellant acknowledged he believed the contents of the bag were "no good" and probably illegal. Appellant relies on his own testimony and that of the officers who made the stop in support of his argument that no rational jury could have convicted him. Appellant testified he did not knowingly and voluntarily possess the contraband. He also claimed he did not know a drug deal was taking place at the gas station. Despite his claim that he only saw the red phosphorous and was unaware the bag contained methamphetamine, appellant had a long history of drug abuse and had recently violated his felony probation by testing positive for drug abuse. Appellant points to Officer Thurmond's testimony about the videotape of the stop as corroborating his professed ignorance. In the videotape, Officer Thurmond states "one is playing stupid and the other is singing like a canary." Because appellant made no comments during the stop, appellant maintains the jury should have concluded he was not aware of the contraband. Appellant also relies on the testimony of Officer Wicker, who admitted during cross-examination that he could not determine with any degree of certainty whether appellant was trying to hide the contraband or get it away from his person. Generally, the finder of fact is the sole judge of the credibility of the witness as well as the weight to be given to the testimony. Thus, the jury was free to believe or disbelieve any part of appellant's and the officers' testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). After considering all of the evidence under the relevant standards of review, we conclude there is legally and factually sufficient evidence to link appellant with the controlled substance found in the car. A rational jury could find found beyond a reasonable doubt that appellant was not simply in fortuitous proximity to someone else's drugs, but exercised management, control, or care over a substance he knew was contraband. Appellant's first and second issues are overruled.

B. Admissibility of Out-of-Court Statement

The trial court admitted some of Freeman's statement into evidence and appellant withdrew his offer of other portions of the statement. Thus, only one sentence of the statement is at issue here. The excluded sentence reads:
I (Stephen Freeman) take full and complete responsibility for all drugs and contraband found on the date, time and location in question.
In his third issue, appellant argues the trial court erred by ruling that this portion of Freeman's statement was inadmissible. Specifically, appellant contends the statement was admissible as an exception to the hearsay rule because it was a statement against interest. See Tex. R. Civ. Evid. 803(24). The State counters that the statement was not admissible because it was not trustworthy. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). Determination of the admissibility of a statement pursuant to Tex. R. Civ. Evid. 803(24) involves a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). First, the trial court must determine whether the statement tends to expose the declarant to criminal liability. Id. Second, corroborating evidence must be shown that is sufficiently convincing to "clearly indicate the trustworthiness of the statement." Id; see also, Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999); Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994). The proponent of the statement has the burden to make this showing. Davis, 872 S.W.2d at 747. But even if the trial court erred in excluding part of Freeman's statement, the error must have resulted in harm. Where erroneous exclusion of evidence is the result of misapplication of the rules of evidence and its admission is not claimed to be required by the United States or state constitutions, we analyze harm under rule of evidence 103(a). This rule provides that error may not be predicated on a ruling that admits or excludes evidence unless a "substantial right" of the party is affected. Tex. R. Civ. Evid. 103(a); Potier v. State, 68 S.W.3d 657, 666 (Tex.Crim.App. 2002). The standard is the same as that under rule 44.2(b). Tex. R. App. P. 44.2(b); Potier, 68 S.W.3d at 666. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. Johnson v. State, 43 S.W.3d 1, 3-4 (Tex.Crim.App. 2001). In assessing the likelihood that the error adversely affected the jury's decision, we consider everything in the record, including all evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might have been considered in connection with the other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We may also consider the State's theory of the case, any defensive theories, closing arguments, and voir dire. Id. Appellant summarily asserts that the exclusion of the evidence prevented him from adequately supporting his defense but articulates no basis for this contention. The court admitted the portion of Freeman's statement in which Freeman stated the drugs belonged to him. In his argument to the jury, defense counsel urged the jury to construe the admitted portion of the statement broadly. Appellant's defense was that he did not knowingly possess methamphetamine, and he testified to that effect. However, the portion of the statement in which Freeman claims personal responsibility for the drugs does not speak to the issue of appellant's knowledge or intent. Thus, the exclusion of statement did not preclude or in any way inhibit appellant's advancement of the theory that he did not knowingly possess the drugs. In addition, Freeman's statement concerning his assumption of responsibility would not absolve appellant from potential liability. Freeman's responsibility was neither mutually exclusive of or inconsistent with appellant's possession. Therefore, Freeman's gratuitous statement was of no legal consequence. The question for the jury was whether appellant exercised control, management or care over the substance and knew the matter was contraband. The excluded portion of the statement adds nothing of substance to this inquiry. Accordingly, we conclude the exclusion of the statement did not have a substantial or injurious effect on the jury's verdict. Appellant's third issue is overruled. Having resolved all of appellant's issues against him, we affirm the judgment of the trial court.


Summaries of

Blum v. State

Court of Appeals of Texas, Fifth District, Dallas
Jan 26, 2009
No. 05-08-00152-CR (Tex. App. Jan. 26, 2009)
Case details for

Blum v. State

Case Details

Full title:WILLIAM BRYANT BLUM, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 26, 2009

Citations

No. 05-08-00152-CR (Tex. App. Jan. 26, 2009)