Opinion
No. 12-02-00054-CR
Opinion delivered December 23, 2003. DO NOT PUBLISH.
Appeal from the 114th Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., and GRIFFITH, J.
MEMORANDUM OPINION
Appellant David Bruce Taylor ("Appellant") was convicted of felony possession of a controlled substance. The jury sentenced him to twenty years of imprisonment, and imposed a $10,000 fine. We affirm.Background
On July 5, 2001, three Tyler Police Department bicycle squad officers were patrolling an area of Tyler noted for drug activity. They met Appellant riding his bicycle, and in the course of their encounter, checked whether there were any warrants for him. After finding that Appellant had a warrant issued for a traffic offense, the officers arrested and handcuffed him. During the search incident to arrest, as an officer attempted to search Appellant's shirt pocket, Appellant broke from the police and ran. The officers quickly tackled him, patted him down for weapons, and placed him in a police car that had arrived on the scene. Because of Appellant's behavior, the police chose not to take him to the police station for processing, but to transport him to a more secure area, the Smith County jail, where he would be unable to flee again. At the jail, in the course of a thorough search of Appellant's clothing, the officers found a small rock of crack cocaine in his shirt pocket. Appellant was charged with possession of a controlled substance. Appellant's focus at trial was whether the police had planted the drugs on Appellant, based on Appellant's contention that the drugs had not been found during the search at the arrest scene. Appellant argued that the single rock of crack cocaine the officers testified was found in Appellant's pocket was not the same as the smaller rocks contained in the package returned from the drug testing laboratory. He also pointed out that the evidence at trial was contained within a yellow piece of plastic, although one officer testified that the rock taken from Appellant was placed in a piece of clear plastic. A Texas Department of Public Safety chemist testified that he had to take a sample of the rock of crack cocaine for his testing, thus altering the physical unity of the original evidence. He also testified that, after getting the sample, he placed the rest of the cocaine in a yellow plastic sack to avoid misplacing any pieces of the cocaine rock. During the jury's deliberations, the foreperson of the jury took her mobile telephone into the jury room's restroom and called her place of employment, asking that her briefcase be left outside so she could retrieve it after work. The other jurors sent a note to the judge advising her of the foreperson's action. The court held a hearing, inquiring of the foreperson's actions and intent. The juror denied discussing the case with the person at her office. The judge found that the foreperson had violated the court's instructions to the jury in talking to someone other than the court's bailiff or the other jurors when they were together, but did not grant Appellant's motion for mistrial. The jury found Appellant guilty of possession of cocaine, sentenced him to twenty years of imprisonment, and imposed a $10,000 fine. In four issues, Appellant contends on appeal that the evidence is legally and factually insufficient to support the conviction, that the trial court erred in admitting evidence that Appellant attempted to escape police custody but excluding testimony that Appellant had been acquitted of the charge of escape, and that the trial court erred in not granting Appellant's motion for mistrial where the presiding juror used a mobile phone to contact her place of employment during the jury's deliberations.Legal Sufficiency
In his first issue, Appellant contends that the evidence is legally insufficient to support his conviction of possession of cocaine. In reviewing a legal sufficiency question, we must view the evidence in the light most favorable to the verdict and 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, 61 L.Ed.2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The trier of fact, here the jury, is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994); Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App. 1984). The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.-Corpus Christi 1988, pet. ref'd). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). Although an appellate court's analysis considers all the evidence presented at trial, it may not "re-weigh the evidence and substitute [the appellate court's] judgment for that of the jury." King, 29 S.W.3d at 562. Legal sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); see also Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim. App. 2001). Appellant was indicted for possession of cocaine, pursuant to Section 481.116 of the Texas Health and Safety Code which provides that "a person commits an offense if the person knowingly or intentionally possesses" various enumerated controlled substances, including cocaine. Tex. Health Safety Code Ann. § 481.116(a) (Vernon 2002). The officers testified they attempted to search Appellant at the scene. However, when they attempted to search his shirt pocket, Appellant fled, causing them to have to chase him and tackle him. Because of concerns about his flight and the arrival of a police car to transport him to a more secure location to continue the search, the officers did not continue their attempt to search Appellant's shirt pocket at the scene. When they resumed their search of Appellant at the jail, they carefully searched his clothing. In the pocket that Appellant would not let them search at the scene, they found a very small rock of crack cocaine. The cocaine was in Appellant's possession. Further, Appellant's action in running when the officers attempted to search the pocket in which the cocaine was found supports a conclusion that he knew the cocaine was in that pocket and would be found if the officers were permitted to search the pocket. Therefore, the evidence is legally sufficient to support Appellant's conviction. Appellant's first issue is overruled.Factual Sufficiency
Appellant's second issue is that the evidence is factually insufficient to support his conviction for possession of cocaine. When reviewing the factual sufficiency of the evidence, we review all of the evidence, but not in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim. App. 1997). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). In conducting our analysis, our duty is to examine the trier of fact's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex. App.-Dallas 1996, no pet.). We consider all the evidence in the record related to an appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Because we consider all the evidence in conducting a factual sufficiency review, we necessarily consider any reasonable alternative hypothesis raised by the evidence. Richardson v. State, 972 S.W.2d 384, 387 (Tex. App.-Dallas 1998, no pet.). However, the mere existence of a reasonable hypothesis does not render the evidence factually insufficient. Id. Because the jury is the sole judge of the facts, we must give deference to jury findings. Cain, 958 S.W.2d at 407. However, absolute deference is not the standard. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). The degree of deference we give to jury findings must be proportionate to the facts which we can accurately glean from the trial record. Id. Our factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from the cold appellate record. Id. Unless the appellate record before us reveals that a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson, 23 S.W.3d at 8. This is because resolution often turns on an evaluation of credibility and demeanor, and the jury was in attendance when the testimony was delivered. Id. We then accord this evidence appropriate consideration in the context of our overall analysis. Id. at 8-9. A factual sufficiency review encompasses the formulations used in both civil and criminal cases. Id. at 11. This means that the evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. The court of criminal appeals in Johnson further states:[T]he complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate when taken alone, is greatly outweighed by contrary proof.Id. Applying these guidelines to the evidence, the evidence established that the cocaine was in Appellant's pocket, and that he ran from the police when they attempted to search the pocket in which the cocaine was located. Although Appellant contended at trial that the police planted the cocaine, the jury was entitled to believe the chemist's explanation for the change in packaging and the difference in the number of rocks. See Cain, 958 S.W.2d at 407. Therefore, we hold that the evidence was factually sufficient for the jury to find Appellant guilty as charged. Appellant's second issue is overruled.