Opinion
No. 05-02-01687-CR.
Opinion Filed April 4, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-49024-VQ. Affirm.
Before Justices JAMES, BRIDGES and RICHTER.
OPINION
A jury convicted Raleigh Bernard Freeman of unlawful possession of cocaine in an amount of less than one gram and assessed punishment at eighteen months imprisonment and a $5,000 fine. On appeal, appellant raises three points of error, asserting: (a) the trial court erred in not sua sponte declaring a mistrial following allegedly improper remarks made by the prosecutor during voir dire; (b) the evidence is factually insufficient; and (c) jury charge error. We affirm.
Background
Officer Brian Simmons and three other officers were surveilling a hotel parking lot known for high drug activity when they noticed appellant conducting what appeared to be drug transactions. According to Simmons, appellant would approach cars as they pulled into the lot, lean in for a few seconds, and "pull out." The cars would then leave. After observing appellant for "awhile," Simmons approached appellant, who was walking towards the back of a car. Simmons identified himself and told him to "stop." Believing appellant was about to run, Simmons ordered appellant to the ground and to extend his arms. As appellant extended his arms, appellant took a small tin case he had in his hand and attempted to hide it behind the car's rear tire. At that point, Simmons called the other officers. After discovering the tin contained crack cocaine, the officers arrested appellant.Voir Dire
In his first point of error, appellant contends the trial court erred in not sua sponte declaring a mistrial following remarks by the prosecutor during voir dire which allegedly violated appellant's right to a presumption of innocence and infringed on the jury's role as the exclusive judge of the facts. See generally U.S. Const. amend. XVI; Randle v. State, 826 S.W.2d 943, 945 n. 3 (Tex.Crim.App. 1992); Guice v. State, 900 S.W.2d 387, 389-90 (Tex.App.-Texarkana 1995, pet. ref'd). In arguing this point, however, appellant fails to cite to any authority, and we have failed to find any, holding a trial court must sua sponte declare a mistrial in such circumstances. See Tex. R. App. P. 38.1(h); Billy v. State, 77 S.W.3d 427, 429 (Tex.App.-Dallas 2002, pet. ref'd). In fact, as the State points out, a defendant generally bears the burden of objecting at trial in order to preserve error on appeal, even when the objections are of a constitutional dimension. See Tex. R. App. P. 33.1(a)(1); Castillo v. State, 739 S.W.2d 280, 297 (Tex.Crim.App. 1987). Objections to allegedly improper remarks during voir dire fall within this general rule. See Robinson v. State, 85 S.W.3d 338, 339 (Tex.App.-Texarkana 2002, pet. ref'd); Billy, 77 S.W.3d at 429. Because there is no indication appellant complained at trial about the prosecutor's remarks, we conclude he has failed to preserve error. Accordingly, we overrule his first point of error.Sufficiency of the Evidence
In his second point of error, appellant asserts the evidence is factually insufficient to support the conviction. In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence establishes the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under this standard, we must give due deference to the trier of fact regarding the weight and credibility of the evidence. Jones v. State, 944 S.W.2d 642, 648-49 (Tex.Crim. App. 1996). To obtain a conviction in this case, the State needed to prove appellant exercised care, custody, control and management over the cocaine and knew the substance possessed was contraband. Tex. Health Safety Code Ann. §§ 481.102, 481.115 (Vernon Pamph. 2003); McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim. App. 1985). The State could establish the control and knowledge elements through "affirmative links" — evidence showing appellant's connection with the contraband was more than just fortuitous. See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim. App. 1995). In a sufficiency of the evidence challenge, the number of affirmative links is less important than the logical force by which the links, either alone or in combination, establish the defendant's possession of the contraband. Martinets v. State, 884 S.W.2d 185, 188 (Tex.App.-Austin 1994, no pet.). In arguing the evidence is factually insufficient, appellant recognizes that observations of a defendant dealing drugs and of the defendant holding the contraband, as testified to in this case by Simmons, "tend to" affirmatively link the defendant to the contraband. See Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim. App. [Panel Op.] 1981); Dixon v. State, 918 S.W.2d 678, 680 (Tex.App.-Beaumont 1996, no pet.). Nonetheless, appellant argues there can be no confidence in the verdict because Simmons's testimony was not credible. Specifically, appellant notes Simmons (a) observed appellant's actions from "a distance of one and a half to two football fields, at night," (b) could not recall if he was using binoculars, whether appellant made statements when arrested and had any money on his person, who searched the car appellant was next to when Simmons approached him, and who Simmons's partner was that night; and (c) identified appellant in court following "sleight-of-hand," leading questions by the prosecutor. However, appellant's arguments are all challenges to the jury's resolution of credibility issues that we will not disturb on appeal. By returning a guilty verdict, the jury necessarily found Simmons's testimony credible, which was their prerogative. Viewing the evidence set out above in a neutral light, we conclude the evidence of guilt is neither so weak as to undermine confidence in the jury's verdict nor greatly outweighed by contrary proof. We overrule appellant's second point of error.Jury Charge
In his third point of error, appellant contends the trial court erred by submitting the following jury instruction, "extracted from the disfavored Geesa reasonable doubt instruction," at the guilt-innocence phase:It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt.See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991), overruled in part by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). Appellant did not object to the instruction at trial, but contends he suffered "egregious harm" because the instruction "lessen[ed] the State's burden of proof by decreasing the magnitude of the State's task to prove guilt beyond a reasonable doubt in the jury's mind." See generally Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. oh reh'g). We disagree. In Paulson, the court of criminal appeals disavowed the requirement announced in Geesa that trial courts instruct juries on the definition of reasonable doubt. Paulson, 28 S.W.3d at 573; Geesa, 820 S.W.2d at 162. However, as we concluded in Dooley v. State, the court of criminal appeals did not hold that the mere inclusion of a reasonable doubt instruction constituted reversible error. 65 S.W.3d 840, 844 (Tex.App.-Dallas 2002, pet. ref'd). In fact, the court expressly stated that both parties could agree to submit a Geesa instruction to the jury. Paulson, 28 S.W.3d at 573. Moreover, before Paulson can even apply, the charge must in fact include a definition of reasonable doubt. See Carriere v. State, 84 S.W.3d 753, 759 (Tex.App.-Houston [1st Dist.] 2002, pet. filed) (citing Paulson, 28 S.W.3d at 573). In this case, the jury charge did not define reasonable doubt nor did it lessen the State's burden of proof. Rather, the charge correctly instructed the jury that the State had to prove appellant's guilt beyond a reasonable doubt, not beyond all possible doubt. See id. We overrule appellant's third point of error. We affirm the trial court's judgment.