Summary
concluding perjury complaint not preserved for appellate review where not raised at trial or in motion for new trial
Summary of this case from Brooks v. StateOpinion
No. 05-16-00378-CR
04-12-2017
STEPHEN MARSHALL MCLEMORE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court Rockwall County, Texas
Trial Court Cause No. 2-14-440
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Whitehill
A jury convicted Stephen Marshall McLemore of possessing four grams or more but less than two-hundred grams of a controlled substance and assessed punishment at seventeen years imprisonment and a $2,000 fine. In five issues he argues that: (i) his statutory right to allocution was violated, (ii) his common law right to allocution was violated, (iii) his conviction was secured through perjured testimony in violation of his right to due process, (iv) the use of the allegedly perjured testimony constituted a violation of the State's duty to see that justice is done, and (v) the evidence is insufficient to support his conviction.
We conclude that appellant's first four issues were not preserved for our review, and the evidence is sufficient to support the conviction because the logical force of the affirmative links lends itself to the conclusion that appellant possessed methamphetamine. We thus affirm the trial court's judgment.
I. Background
Appellant was charged with possession with intent to deliver a controlled substance of four grams or more but less than two hundred grams after the discovery of methamphetamine in a fast-food hamburger container and a soda cup situated near him in the back seat of the vehicle in which he was a passenger. The State subsequently amended the indictment to delete one of two prior enhancement paragraphs and change the prior offense description in the second enhancement paragraph.
The jury was instructed on the law of possession of a controlled substance with intent to deliver and the lesser-included offense of possession of a controlled substance, and ultimately found appellant guilty of the lesser-included offense. When the penalty phase concluded, the jury found the enhancement paragraph true and assessed punishment at seventeen years imprisonment and a $2,000 fine. The trial court signed a final judgment of conviction, and this appeal followed.
II. Analysis
A. First and Second Issues: Was appellant's right to allocution violated?
Appellant argues that his statutory right and common law right to allocution were violated. "Allocution" refers to a trial judge asking a criminal defendant to "speak in mitigation of the sentence to be imposed." Smith v. State, No. 05-15-01191-CR, 2017 WL 462345, at *4 (Tex. App.—Dallas Jan. 31, 2017, no pet.) (mem. op.). Article 42.07 states the procedural rule implementing statutory allocution in Texas. See TEX. CODE CRIM. PROC. art. 42.07. It requires that the defendant be asked, before sentence is pronounced, "whether he has anything to say why the sentence should not be imposed against him." Id. The circumstances where sentence cannot be pronounced are limited to when a defendant (i) has been pardoned, (ii) is incompetent to stand trial, or (iii) when a defendant escapes and another person is brought to sentencing who is not the defendant. See id.
When the evidence concluded in the punishment phase, the jury assessed punishment and the trial court received the verdict and pronounced punishment. The judge did not ask appellant whether there was any reason why the sentence should not be imposed, but appellant did not object. Error from the denial of the right of allocution must be preserved. See Tenon v. State, 563 S.W.2d 622, 623-24 (Tex. Crim. App. 1978); Wilson v. State, No. 05-13-00831-CR, 2013 WL 4399193, at *7 (Tex. App.—Dallas Aug. 15, 2013, no pet.) (mem. op.).
Furthermore, appellant provides no authority for the premise that a common law right to allocution, if any, would be subject to any different preservation rules than the statutory right. And the record demonstrates that neither of appellant's allocution complaints were preserved. See TEX. R. APP. P. 33.1. We thus overrule appellant's first and second issues.
B. Third and Fourth Issues: Is reversal required because the conviction was secured through perjured testimony?
Appellant points to inconsistences in the testimony Officer Jeff Lutes gave at a pre-trial hearing concerning another defendant and the testimony he gave at trial in appellant's case, and argues that the testimony in his case was perjury. Specifically, his third issue argues that his due process rights were violated because the State used allegedly perjured testimony that was material to the case. His fourth issue argues that the use of such testimony was misconduct and violated the State's duty to see that justice is done.
The State is not permitted to obtain a conviction through the knowing use of perjured testimony. Luck v. State, 588 S.W.2d 371, 373 (Tex. Crim. App. 1979). But the use of inconsistent testimony does not establish that the State knowingly used any perjured testimony. Stuart v. State, No. 07-95-0061-CR, 1996 WL 532479, at * 3 (Tex. App.—Amarillo Sept. 19, 1996, pet. ref'd) (mem. op.).
But to preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the ruling if they are not apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1 (a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998). Further, the court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1 (a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004) (preservation generally); Day v. State, No. 13-13-00338-CR, 2016 WL 4272383, at *9 (Tex. App.—Corpus Christi Aug. 11, 2016, pet. ref'd) (mem. op.) (concerning preservation of prosecutorial misconduct complaints). Finally, the complaint at trial must comport with the complaint raised on appeal. See Dooley v. State, 65 S.W.3d 840, 842 (Tex. App.—Dallas 2002, no pet.).
In the present case, trial counsel did not object to Officer Lute's testimony as perjury, and counsel fully cross-examined Lutes. Likewise, there was no due process or misconduct objection. Although appellant filed a motion for new trial, he argued only that the verdict was contrary to the law and the evidence "especially in light of the discrepancies in the trial testimony of the State's witness . . . ." Accordingly, appellant's perjury, due process, and misconduct complaints were not preserved for our review. See Mieth v. State, No. 02-05-121-CR, 2006 WL 563245, at *6 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op.); Aguilar v. State, No. 01-96-01397-CR, 1999 WL 213080, at *3 (Tex. App.—Houston [1st Dist.] Apr. 15, 1999, pet. ref'd) (mem. op.).
C. Fifth Issue: Is the evidence sufficient to support the conviction?
Appellant's fifth issue argues that the evidence is insufficient to support his conviction because there are insufficient links to demonstrate that he possessed the methamphetamine. As discussed below, we disagree.
1. Standard of Review and Applicable Law
We review the sufficiency of the evidence to support a conviction by viewing 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 (1979).
This standard gives full play to the fact finder's responsibility to resolve testimonial conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The fact finder is the sole judge of the evidence's weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder's. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in the verdict's favor and defer to that resolution. Id. at 448-49. The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
A person commits possession of a controlled substance when he "knowingly or intentionally possesses a controlled substance . . . ." TEX. HEALTH & SAFETY CODE ANN. § 481.115. Here, there is no dispute but that a controlled substance proscribed by statute was found. Instead, the issue is whether appellant knowingly or intentionally possessed it.
Possession requires proof that a defendant (i) exercised actual care, custody, control, or management over the contraband, and (ii) knew that the matter possessed was contraband. Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.—Dallas 2003, no pet.). Control need not be exclusive; it can be jointly exercised by more than one person. Id. at 831.
Because appellant was not in exclusive possession of the contraband, the State was required to present evidence affirmatively linking him to it. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). Possible affirmative links that may exist either singly or in combination, include: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) whether the drugs were found in proximity to and accessible to the defendant; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband or drug paraphernalia; (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 drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
No set formula of facts exists that would dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Porter v. State, 873 S.W.2d 729, 732 (Tex. App.—Dallas 1994, pet. ref'd). The number of links is less important than the "logical force" or degree to which the links, alone or in combination, tend to affirmatively link the accused to the contraband. Evans, 202 S.W.3d at 162.
2. The Evidence
Officer Lutes was on patrol one afternoon and stopped at a truck stop, and he noticed a white Chevy Trailblazer at the gas pumps. When he checked the Chevy's registration and insurance, he discovered that both had expired. His check also revealed that the vehicle was associated with a regional warrant.
As Lutes continued to watch the vehicle, he saw appellant get out of the rear left side of the vehicle and go into the truck stop. While appellant was inside, the vehicle's other occupant, a male driver (Joselito Mendoza) and a female passenger (Christine Carlin) were walking around the vehicle. The driver pumped or "purportedly pumped" some gas. Appellant then returned to the vehicle with a Burger King sack.
The Chevy departed and Lutes followed and initiated a stop. When Lutes made contact with Mendoza, he noticed several tattoos on his left forearm depicting narcotics. Mendoza told him he did not have insurance or a driver's license, and he also had an expired Texas identification card. But Mendoza was the vehicle's owner, and was making payments on it.
Lutes asked Mendoza to step out of the car. When he was questioned, Mendoza would not make eye contact, and kept rolling his eyes as though he was frustrated with the questioning. Mendoza said that the group was going to Commerce to visit appellant's girlfriend. Lutes observed, however, that the vehicle was travelling in the opposite direction.
Lutes requested a cover unit and he got appellant out of the car before the cover officer arrived. No one in the car had a valid driver's license, and Lutes decided to impound the vehicle because of the expired insurance and registration.
When he inventoried the vehicle's contents, he first saw a methamphetamine pipe in plain view in Carlin's purse. The purse also contained a small baggie with dollar signs on it that contained a "pink/peach" colored powder, and a small cellophane wrapped baggie inside of that bag that contained methamphetamine. There was also a small pouch with a marijuana pipe that had marijuana residue in it.
The substance field-tested positive as methamphetamine and this was later confirmed by tests in the lab.
As Lutes continued to search, he found another methamphetamine pipe, some methamphetamine wrapped in a tissue, synthetic marijuana, and a "one-hitter" pipe under the liner of a child's car seat in the right rear of the vehicle next to where appellant was seated.
A "one-hitter" is a pipe used to smoke small amounts of narcotics.
When Lutes searched the Burger King bag, which was located on the center floorboard of the rear seat near appellant, he found a hamburger container with a hamburger in it. A large bag of methamphetamine was underneath the hamburger and there was another smaller bag of methamphetamine inside the hamburger in between the meat and bun. Another small bag of methamphetamine was found floating in a cup located in the rear console cup holder near appellant.
Appellant, Mendoza, and Carlin were arrested. During the arrest, the cover officer heard appellant say that he "should have eaten that hamburger."
A videotape of the stop was admitted into evidence and played for the jury.
Applying the affirmative links test, we note that several factors weigh in appellant's favor. See Evans, 202 S.W.3d 162. Appellant had no drugs or other paraphernalia on his person, did not make furtive gestures or appear to be under the influence, did not have a large amount of cash, and he did not attempt to flee. The car where the drugs were found belonged to Mendoza, not appellant. And Lutes did not notice an odor of narcotics.
But the logical force of the links rather than the quantity controls our analysis. Id. The methamphetamine that appellant was charged with possessing was found in proximity and was accessible to appellant. Lutes saw appellant leave the truck stop with the Burger King bag containing the hamburger box where the drugs were found, and that bag was in the back seat of the vehicle near where appellant was seated. The methamphetamine in the soda cup was also in the backseat cup holder near appellant, as were the drugs and paraphernalia in the car seat liner next to him. The vehicle was enclosed, and only appellant, Mendoza, and Carlin were inside between the time at the truck stop and the time of the stop. Likewise, the hamburger box was enclosed. Appellant's remark that he "should have eaten that hamburger" could have been viewed by the jury as incriminating and affirmatively connecting him to the hamburger hiding the drugs.
There were one or two other hamburgers in the vehicle that were being eaten rather than used to secrete drugs.
Appellant contends that the evidentiary insufficiency is further demonstrated "by consideration of the totality of Officer Lutes' testimony." But any inconsistencies in the testimony were for the jury to weigh and resolve. See Murray, 447 S.W.3d at 448.
When all of the evidence, direct and circumstantial, is considered, the logical force of the evidence lends itself to the conclusion that appellant possessed the methamphetamine. We therefore conclude that the links to appellant are sufficient, viewed in the light most favorable to the verdict, to support the jury's finding that appellant possessed the methamphetamine in question. Jackson, 443 U.S. at 319. We thus resolve appellant's fifth issue against him.
III. Conclusion
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160378F.U05
JUDGMENT
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas
Trial Court Cause No. 2-14-440.
Opinion delivered by Justice Whitehill. Justices Francis and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered April 12, 2017.