Opinion
NO. 01-17-00218-CR
08-13-2020
LISANDRO BELTRAN DE LA TORRE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 25th District Court Colorado County, Texas
Trial Court Case No. 16-082
MEMORANDUM OPINION ON REMAND
A jury convicted appellant, Lisandro Beltran de la Torre, of possession of a controlled substance, cocaine, in the amount of less than one gram. The trial court assessed his punishment at two years' confinement in the state jail, probated for three years. On appeal, appellant argued, among other things, that the trial court erred in instructing the jury that more than one person can be found to have possessed a controlled substance at the same time. A panel of our Court held that the trial court did not err by including this instruction in the jury charge and affirmed appellant's conviction. See De La Torre v. State, 546 S.W.3d 420, 427 (Tex. App.—Houston [1st Dist.] 2018), rev'd and remanded sub nom. Beltran De La Torre v. State, 583 S.W.3d 613 (Tex. Crim. App. 2019).
The panel consisted of Justices Bland, Lloyd, and Caughey. Justice Bland's and Justice Caughey's terms of office ended on December 31, 2018.
Appellant subsequently filed a petition for discretionary review in the Court of Criminal Appeals. The Court of Criminal Appeals held that the trial court erred by including the joint-possession instruction because the "instruction was unnecessary, impermissibly focused the jury's attention on particular evidence, and thus constituted an improper comment on the weight of the evidence." Beltran De La Torre v. State, 583 S.W.3d 613, 622-23 (Tex. Crim. App. 2019). The Court of Criminal Appeals reversed our judgment and remanded the case to this Court with instructions to conduct a harm analysis. Id. at 623.
Because the error was harmless, we affirm the trial court's judgment.
Background
Portions of the background section have been taken verbatim from this Court's and the Court of Criminal Appeals's prior opinions in this case.
Two officers from the Columbus Police Department responded to a mid-morning call about people suspected of drinking alcohol inside a parked car at the Department of Public Safety's driver's license office. The officers, Anthony Axel and Jose Lara, approached the car and observed three occupants inside—appellant in the driver's seat, a female in the front passenger seat, and a second female passenger in the back seat. The officers also saw a man standing outside the vehicle on the passenger's side. That man was asked to sit down nearby, but he was not questioned and later walked away from the scene. Officer Lara also testified that he had seen the man walk out of the driver's license office.
When he approached the driver's door, Officer Lara immediately noticed a small plastic bag containing a powdery substance on the car's center console. Suspecting that the bag contained a controlled substance, Officer Lara asked appellant and the female passengers to step out of the car. Officer Lara detained the female passengers while Officer Axel detained appellant behind the vehicle.
Officer Axel testified that appellant smelled of alcohol, had bloodshot eyes, and appeared to have not slept in a day or more. Both officers stated that appellant had dilated pupils, which they believed, based on their training and experience, indicated the use of narcotics. The officers removed the bag with the white powdery substance and field tested it. The test yielded a positive result for cocaine. Appellant was arrested and subsequently charged with possession of less than a gram of cocaine.
At appellant's jury trial, the State set forth evidence of possession by showing that appellant (1) was the registered owner of the vehicle, (2) was in the driver's seat and had direct access to the cocaine located on the car's center console, and (3) showed signs of having ingested narcotics. The State also argued to the jury that, even if appellant was not in sole possession of the cocaine, he could have jointly possessed it along with the other occupants of the vehicle.
Appellant testified in his own defense. He claimed that the cocaine was not his, and he had no knowledge of it being in his car. He conceded that the car was registered in his name, but he countered that there were four people in his car that day, including the man who had walked away, who appellant identified as "Leo." Appellant also admitted that he did not tell the officers who arrested him that the other man was one of the car's occupants. In his closing argument, appellant's counsel argued that Leo, who had been in the backseat of the car moments before the officers approached, tossed the baggie of cocaine onto the car's console and exited the vehicle, and that appellant had no knowledge that cocaine was in the car.
In the jury charge, the trial court informed the jury about general principles of law that must govern its decision on guilt or innocence, including the following instruction:
Nothing the judge has said or done in this case should be considered by you as an opinion about the facts of this case or influence you to vote one way or the other.The jury was also charged on the applicable statutory elements of possession of a controlled substance. See TEX. HEALTH & SAFETY CODE § 481.115(a) ("[A] person commits an offense if the person intentionally or knowingly possesses a controlled substance[.]"). The charge also included the following definition of "possession":
"Possession" means actual care, custody, control, or management. Two or more people can possess the same controlled substance at the same time.The statutory definition of "possession," however, states in its entirety that possession is defined as "actual care, custody, control, or management." TEX. HEALTH & SAFETY CODE § 481.002(38). The trial court denied appellant's request to include an instruction on "mere presence."
Specifically, the jury was instructed that the applicable statute stated:
A person commits an offense if the person intentionally or knowingly possesses a controlled substance and the amount of the controlled substance is, by aggregate weight, including adulterants or dilutants, less than one gram.
The jury found appellant guilty, and the trial court assessed appellant's punishment at two years in state jail, probated for three years.
On appeal to this Court, appellant argued that (1) his conviction was supported by insufficient evidence, (2) the trial court erred in instructing the jury that more than one person can be found to have possessed a controlled substance at the same time, and (3) the trial court erred in denying his request to instruct the jury on "mere presence." A panel of this Court overruled all of appellant's issues and affirmed his conviction. Appellant petitioned the Court of Criminal Appeals for review of our decision with respect to his two claims of jury charge error. The Court affirmed our upholding of the trial court's denial of appellant's request for a "mere presence" instruction and did not address our holding that there was sufficient evidence supporting appellant's conviction.
The Court of Criminal Appeals, however, reversed our judgment with respect to the joint-possession instruction, i.e., "Two or more people can possess the same controlled substance at the same time." Specifically, the Court held:
In sum, the trial court's instruction on joint possession was unnecessary because the general charge to the jury was broad enough to encompass the concept of joint possession. The jury here was properly charged on the statutory definition of possession, and no other instruction was required to inform the jury of the applicable law for that statutory element. Although the State was free to argue to the jury that Appellant jointly possessed the drugs along with the other occupants of the vehicle, it was not entitled to a special instruction highlighting its theory of joint possession. The trial court's instruction impermissibly drew the jury's attention to the possibility that Appellant had jointly possessed the drugs, and further could have been interpreted by the jury as implicitly signaling the trial court's belief that the evidence established the element of possession. The instruction, therefore, was an
impermissible comment on the weight of the evidence, and the court of appeals erred in holding otherwise.Beltran De La Torre, 583 S.W.3d at 621. The court remanded the case to this Court with instructions to conduct a harm analysis pursuant to Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
Harm Analysis
The sole issue before us on remand is whether appellant was harmed by the erroneous inclusion of the joint-possession instruction in the jury charge.
A. Standard of Review
The degree of harm necessary to reverse a case based on charge error depends upon whether the error was preserved in the trial court. See Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Almanza, 686 S.W.2d at 171. An erroneous jury charge requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. Almanza, 686 S.W.2d at 171; see also TEX. CODE CRIM. PROC. art. 36.19 (providing that judgment shall not be reversed unless error appearing from record was calculated to injure rights of defendant or unless it appears from record that defendant has not had fair and impartial trial). If, however, the defendant does not object to the charge or states that he has no objection to the charge, we will not reverse for charge error unless the record shows "egregious harm" to the defendant. Almanza, 686 S.W.2d at 171.
Because appellant did not object to the erroneous instruction, reversal is required only if the error was "so egregious and created such harm that [appellant] was deprived of a fair and impartial trial." Marshall, 479 S.W.3d at 843; Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza, 686 S.W.2d at 171.
Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017); Marshall, 479 S.W.3d at 843. "Egregious harm is a 'high and difficult standard' to meet, and such a determination must be 'borne out by the trial record.'" Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). "We will not reverse a conviction unless the defendant has suffered 'actual rather than theoretical harm.'" Id. (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)).
Neither party has the burden to show harm or lack of harm; rather, we must examine the record and make an independent determination whether an appellant suffered actual harm as opposed to theoretical harm. Marshall, 479 S.W.3d at 843. In examining the record to determine whether jury charge error has resulted in egregious harm, we consider four factors: (1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. Arteaga, 521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171.
B. Analysis
With respect to the entirety of the charge, we note that the trial court specifically instructed the jury that it should not consider anything the judge had said or done "as an opinion about the facts of this case" and should not influence itsr vote on guilt or innocence. "'We generally presume the jury follows the trial court's instructions in the manner presented.'" Beltran De La Torre v. State, 583 S.W.3d at 620 (quoting Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)); see also Casanova v. State, 383 S.W.3d 530, 543 (Tex. Crim. App. 2012) (stating courts of appeal usually presume "that jurors follow the trial court's explicit instructions to the letter"). This instruction mitigates against the possibility that the jury actually viewed the joint-possession instruction as "'obliquely or indirectly'" conveying the trial court's opinion of the evidence by 'singling out' the State's theory of joint possession and 'inviting the jury to pay particular attention to it.'" Beltran De La Torre, 583 S.W.3d at 619; see also Villarreal, 453 S.W.3d at 433 (requiring defendant to have suffered "actual rather than theoretical harm"). Aside from this instruction and the joint-possession instruction, the jury charge is otherwise unremarkable.
We further note that the charge correctly defines "possession" as "actual care, custody, control, or management" and, as the Court of Criminal Appeals acknowledged, the joint-possession instruction is "substantively correct." Beltran De La Torre, 583 S.W.3d at 619. The inclusion of the joint-possession instruction was not erroneous because it was not an incorrect statement of the law; it was error because the instruction was "unnecessary" and drew the jury's attention to evidence that would support the State's joint-possession theory, and therefore, it constituted an improper comment on the weight of the evidence. Id. Accordingly, we are not persuaded by appellant's argument that the entirety of the charge supports a finding of egregious harm.
With respect to the state of the evidence, the record reflects that appellant's primary defensive theory was that he was not in knowing possession of the cocaine, but merely present in the car where the cocaine was found. Appellant's argument that the joint-possession instruction was egregiously harmful because it vitally affected this defensive theory is unavailing. The erroneous instruction stated that "[t]wo or more people can possess the same controlled substance at the same time." Appellant's defensive theory, however, was not that he could not have been in possession of the cocaine because Leo possessed the narcotic. His theory, as explained by his counsel, was that the cocaine had been in Leo's possession, Leo tossed the cocaine onto the console, and exited the vehicle as the officers approached the car, and appellant had no knowledge that the cocaine was in the car. Thus, we are not persuaded that the instruction vitally affected the basis of appellant's case because it was not directed at appellant's main defensive theory that he was not in possession of the cocaine because he did not know it was in the car. See Marshall, 479 S.W.3d at 843; cf. Brown v. State, 122 S.W.3d 794, 802-04 (Tex. Crim. App. 2003) (reviewing error for some harm and holding that erroneous jury instruction that impacted sole issue and defensive theory in capital murder case not "in any sense, harmful"). If appellant did not know that the drugs were there, he would not be in either sole or joint possession.
Appellant argued on appeal that the evidence was insufficient to support his conviction for possession of a controlled substance because there were multiple occupants in the car. This Court overruled appellant's issue and held that there was sufficient evidence supporting his conviction in light of the circumstantial evidence that affirmatively linked appellant to the contraband. See De La Torre, 546 S.W.3d at 425, rev'd on other grounds and remanded sub nom. Beltran De La Torre, 583 S.W.3d at 622-23. As we explained, the "affirmative links" rule
is designed to protect an innocent bystander from conviction based solely upon his mere presence in the vicinity of someone else's drugs. It recognizes that a defendant who is not in exclusive possession of the place where the controlled substance was found may not have knowledge of and control over the drugs; in such cases, additional independent facts and circumstances beyond mere presence must link him to the drugs.De La Torre, 546 S.W.3d at 424 (citations omitted). The evidence linking appellant to the cocaine included: (1) appellant was the owner and driver of the car, and, therefore, exercised ultimate control over the car and its contents, (2) appellant was present when officers searched the car and found cocaine in plain view on the car's center console, (3) the cocaine was easily accessible to appellant from his location in the driver's seat, and (4) the officers' testimony that appellant exhibited signs of narcotic use. See id. "Together, the combined and cumulative force of this evidence would allow rational jurors to conclude beyond a reasonable doubt that [appellant] intentionally and knowingly possessed the cocaine." De La Torre, 546 S.W.3d at 425, rev'd on other grounds and remanded sub nom. Beltran De La Torre, 583 S.W.3d at 622-23. Appellant did not petition for discretionary review on this issue and the Court of Criminal Appeals did not reverse our opinion on this basis.
With respect to the arguments of counsel, we note that both the State and appellant's counsel discussed the issue of joint possession during trial, beginning with voir dire. Specifically, the State explained to the venire during its voir dire that
[P]ossession, care, custody, and control does not mean ownership. Okay. It's different than ownership. It doesn't mean that it has to actually be on the person. More than one person can possess a controlled substance at the same time. However, if there's joint possession then there must be facts that affirmatively link the accused to the contraband.The State then discussed facts that could link a defendant to the controlled substance, such as whether the contraband is in plain view and conveniently accessible to the defendant. Appellant's counsel also used a hypothetical to explain that a person can have something under their control and not knowingly possess it. Counsel also used this hypothetical to explain how he and someone he had asked to hold an item could both be in possession of the item at the same time. The State also mentioned this issue in its closing argument and focused the jury on the evidence affirmatively linking appellant to the cocaine. Thus, the jury did not need a judicial instruction to focus its attention on the State's theory of joint possession because both the State and appellant's counsel discussed the issue during trial. See Brown, 122 S.W.3d at 803 (holding instruction was harmless, in part, because "[t]he jury did not need any judicial instruction to focus its attention on" evidence at issue).
The State did not argue that the jury could consider his "mere presence" in proximity to the cocaine as evidence of possession, as appellant suggests. On the contrary, the State identified various pieces of evidence which it argued affirmatively linked appellant to the cocaine. A defendant's proximity to a controlled substance is but one example of the type of evidence that can provide the logical force that demonstrates possession and not mere presence. See De La Torre v. State, 546 S.W.3d 420, 424 (Tex. App.—Houston [1st Dist.] 2018), rev'd on other grounds and remanded sub nom. Beltran De La Torre v. State, 583 S.W.3d 613, 622-23 (Tex. Crim. App. 2019) (noting that affirmative links rule "is designed to protect an innocent bystander from conviction based solely upon his mere presence in the vicinity of someone else's drugs" and listing types of evidence that can link defendants to controlled substances).
We further note that the State's argument regarding joint possession was not dependent upon the trial court's erroneous inclusion of the joint-possession instruction, as appellant suggests. As the Court of Criminal Appeals explained, the instruction was "unnecessary because the statutory definition of 'possession' is broad enough to encompass the concept of joint possession" and, thus, the State was free to argue joint possession in the absence of the erroneous instruction. Beltran De La Torre, 583 S.W.3d at 619; see also id. at 620 ("[W]e reiterate that the State was free to argue that the statutory definition of 'possession' includes the concept of 'joint possession.' No additional definition was necessary."); id. at 621 ("Although the State was free to argue to the jury that Appellant jointly possessed the drugs along with the other occupants of the vehicle, it was not entitled to a special instruction highlighting its theory of joint possession.").
It is also relevant that the trial judge instructed the jury prior to opening arguments that it should not read things into anything he said during trial:
No statement, ruling, or remark that I make during the entire time this case is on trial is intended in any way to indicate my opinion as to what the facts are. A judge has no right to indicate an opinion as to the facts. You are to decide the facts of this case. In this determination you alone must determine the believability of the evidence and its weight and value.This statement is consistent with and reinforces the instruction in the jury charge which we determined mitigates against the possibility that the jury interpreted the joint-possession instruction as an indication of the trial court's opinion of the evidence with respect to the contested issue of possession.
With the above considerations in mind and presuming that the jury followed the trial court's instructions, we conclude that appellant did not suffer egregious harm as a result of the erroneous joint-possession charge instruction. See Beltran De La Torre, 583 S.W.3d at 620 (stating appellate courts generally presume that jury follows trial court's instructions).
Conclusion
We affirm the trial court's judgment. Any outstanding motions are dismissed as moot.
Russell Lloyd
Justice Panel consists of Justices Keyes, Lloyd, and Hightower.
Do not publish. TEX. R. APP. PROC. 47.2(b).