Opinion
No. 10-18-00159-CR
12-18-2019
ANDREW LEE JONES, JR., Appellant v. THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas
Trial Court No. 16-04190-CRF-85
MEMORANDUM OPINION
Andrew Jones, Jr. appeals from a conviction for possession of a controlled substance in penalty group one of one or more but less than four grams. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c). Jones complains that the trial court erred by denying his motion to suppress evidence from an illegal search and that the evidence was insufficient for the jury to have found that he possessed one or more but less than four grams of a controlled substance. Because we find no reversible error, we affirm the judgment of the trial court.
FACTS
Early one morning, officers were dispatched to a convenience store in College Station to investigate the use of counterfeit money. While at the store, an officer observed a man shuffling across the parking lot. The officer approached the man, later identified as Jones, to ask if he needed help. The officer became concerned that he might have used phencyclidine, also known as PCP, because Jones was exhibiting signs of intoxication similar to individuals who have used PCP. Jones had difficulty answering questions and the officer had Jones sit down while he sought medical assistance. Jones's body began locking up while they were awaiting the ambulance, which the officer believed was an indicator of PCP use.
The officer testified that he had experience with individuals who had used PCP and that it made them very volatile and unpredictable. Because of that, he did not conduct a pat-down search of Jones at that time. After Jones sat down, a flashlight was shined down on him and the officer standing next to him was able to see a glass vial in the opening of the pocket of Jones's cargo shorts, which he believed likely contained PCP. The officer questioned Jones several times about what was in his pocket, but Jones was slow to respond. Jones eventually removed the vial from his pocket and attempted to hand it to the officer, who did not touch it for safety purposes. Jones set the vial down on the ground next to him. The vial was taken into evidence and was later found to contain PCP.
MOTION TO SUPPRESS EVIDENCE
In his first issue, Jones complains that the trial court erred by denying his motion to suppress evidence from what he contends was an illegal search of Jones's pocket. Jones contends that the search was illegal because the officer testified that he did not know precisely what the vial was at the time he observed it in Jones's pocket, and his repeated requests for consent to search after Jones did not affirmatively give him consent resulted in an illegal search. The State argued at the motion to suppress hearing that the search was lawful pursuant to the plain view doctrine.
At the suppression hearing, the State argued that the sole basis it was presenting for the admission of the evidence was plain view and not the inevitable discovery of the evidence, such as from a search incident to arrest, even though there was no dispute that the officer had probable cause to arrest Jones prior to the removal of the vial for public intoxication.
Contraband seen in "plain view" may be seized without a warrant. See Texas v. Brown, 460 U.S. 730, 736-39, 103 S. Ct. 1535, 1540-42, 75 L. Ed. 2d 502 (1983). This is because the observation of evidence located in "plain view" does not constitute a search subject to Fourth Amendment protection. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
The "plain view" doctrine requires that law enforcement officers: (1) be legally present when making their observation and (2) have probable cause to associate any visible evidence with criminal activity. Walter, 28 S.W.3d at 541. A law enforcement officer need not have actual knowledge that an observed item is contraband in assessing whether it constitutes evidence of criminal activity, but he must have probable cause to connect the item with criminal activity. Brown, 460 U.S. at 741-42; Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991). An officer may use his training and experience in determining whether an item seen in plain view constitutes contraband. Brown, 460 U.S. at 746, (Powell, J., concurring) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). Jones argues that because the officer testified during cross-examination in the suppression hearing that he was unsure what the glass vial in Jones's pocket was at the time he first saw it, there is no evidence to associate it with criminal activity. We disagree.
Prior to the officer's view of what was visible in the opening of Jones's pocket, the officer had observed Jones's behavior and demeanor, which led to the conclusion that Jones was behaving in a manner consistent with a person who was under the influence of PCP and led the officer to seek medical assistance for Jones. From his vantage point above Jones, the officer was also able to observe what appeared to him to be a glass vial that was visible in the opening of Jones's pocket. The officer testified that, based on his years of experience and training, a glass vial is a common method of transport of PCP, which was the controlled substance of which the officer believed Jones appeared to be under the influence. At no time did the officer intrude into Jones's pockets or force him to remove the vial. Even though he did not affirmatively consent to a search of his pockets, Jones voluntarily removed the vial from his pocket after being asked multiple times by the officer, and there is no evidence and Jones does not argue that the removal of the vial was involuntary. See Meekins v. State, 340 S.W.3d 454, 464 (Tex. Crim. App. 2011) (consent to search was not rendered involuntary even though officers asked defendant six times for consent to search).
Based on the evidence presented at the suppression hearing, the trial court did not err by finding that, pursuant to the plain view doctrine, no search implicating the Fourth Amendment occurred. Therefore, the trial court did not err by denying Jones's motion to suppress the evidence initially observed in his pocket which Jones subsequently removed and placed on the sidewalk next to him, i.e. the glass vial containing a substance later determined to be PCP. We overrule issue one.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Jones complains that the evidence was insufficient for the jury to have found that he possessed one or more but less than four grams of a controlled substance because of alleged issues in the testing of the substance at the DPS lab. The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, 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, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "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. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
The report prepared by the Department of Public Safety's laboratory admitted into evidence stated that the mass spectroscopy analysis showed that the substance in the glass vial contained phencyclidine and the weight of the substance was 1.29 grams. The State's expert testified that he had received a glass vial from the State, emptied the vial, and weighed the contents that were contained in the vial, and the contents of the vial weighed 1.29 grams.
The expert was questioned extensively by Jones regarding the uncertainty value, the uniformity of results, the possible addition of adulterants or dilutants, and the availability of quantitative analysis of a sample. Adulterants and dilutants are properly included when determining the weight of a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.002(49). Quantitative analysis, or identifying a volume of a substance and how much of a controlled substance is contained in that volume, is not required in order for the evidence to be legally sufficient. See Melton v. State, 120 S.W.3d 339, 343-44 (Tex. Crim. App. 2003).
The expert was also questioned about the testing methodology, alleged lack of oversight of the DPS laboratory, and other potential errors in the testing that could have occurred. Ultimately, all of this evidence was weighed by the jury in making its determination regarding the credibility of the testimony of the expert and the testing. Viewing the evidence in a light most favorable to the verdict and deferring to the jury's determination, we find that the evidence was sufficient for the jury to have found that the glass vial contained one or more grams of PCP. We overrule issue two.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Neill
Affirmed
Opinion delivered and filed December 18, 2019
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