Opinion
Nos. 05-08-00686-CR, 05-08-00687-CR
Opinion Filed July 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause Nos. F07-58581-Y and F07-58582-Y.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
OPINION
In a consolidated trial, a jury convicted Jerry Edwards of possession of cocaine with intent to deliver and unlawful possession of a firearm. The jury also made a deadly weapon finding in the cocaine case. Appellant pleaded true to an enhancement paragraph in each case. The trial court assessed appellant's punishment at 15 years in prison in the cocaine case and 5 years in prison in the firearm case. On appeal, appellant filed one brief for both cases and raises six issues-two in the cocaine case and four in the firearm case. We affirm in part and reverse and remand in part.
Background
The Dallas police department received a complaint that drugs were being sold out of the back of a house on Carpenter Drive in Dallas. Dallas police detective Patrick Boyett conducted an undercover buy at the house using a confidential informant. On two different days, the informant successfully purchased crack cocaine through a window in the back of the house. Boyett obtained a warrant to search the house. When he and his team arrived at the house to execute the warrant, Boyett saw appellant looking out the front window. He said appellant looked at him and "immediately fled" from the window. Detective Mario Castanon helped execute the warrant; he was the slammer. Castanon testified that the door did not open when he hit it with the slammer, so he knew it was barricaded. He hit the door about six times before it opened. Boyett entered the house first and found appellant, another man named James Hood, and a woman in the bedroom. Boyett instructed another officer to place them in handcuffs and hold them in the bedroom until the house was cleared. The police determined that the woman was a prostitute, and she was not charged. Once inside the house, the police saw one chair, in the living room; no clothes; a mattress leaned against the wall in the front bedroom; and a small amount of food in the refrigerator. The front door was barricaded with a "Jamaican block" that prevented entry and exit. A baseball bat with a surveillance camera taped to it was propped up in the front window facing the front yard. The camera was connected to a monitor in the living room. The police found a digital scale with residue on it on the chair and a loaded firearm under the chair. The back door was barricaded with two metal "barn door blocks" that prevented entry to the house. All of the windows and doors had bars or cages over them. The window in the back room was covered by an iron cage. The cage had a hole in the corner just big enough to pass drugs and money. A doorbell or buzzer was installed by the window. The police found 125 baggies of crack cocaine, valued at $10 each, hidden inside an electrical outlet by the back window and a vial containing 0.88 grams of PCP in the kitchen. They found keys to one of the doors, rent receipts for the house, and $440 in cash in Hood's possession. Appellant was charged with possession of cocaine with intent to deliver and unlawful possession of a firearm.Legal and Factual Sufficiency of the Evidence
Appellant challenges the factual sufficiency of the evidence in the cocaine case, and the legal and factual sufficiency of the evidence in the firearm case. We address each in turn.Standard of Review
In reviewing a challenge to the legal sufficiency of the evidence, we examine 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light, favoring neither party, to determine whether the verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence supporting the conviction is factually insufficient when it is so weak that the verdict seems clearly wrong and manifestly unjust, or when it is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge "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.Applicable Law
Appellant challenges the State's evidence that he possessed the cocaine and the firearm. Possession means "actual care, custody, control, or management." Tex. Health Safety Code Ann. § 481.002(38) (Vernon 2010); Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2009). A person commits a possession offense only if he voluntarily possesses the prohibited item. Tex. Penal Code Ann. § 6.01(a) (Vernon 2003). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. § 6.01(b). Control may be exercised jointly by more than one person. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). If a defendant is not in exclusive possession of the place where the contraband is found, the State must link him to it.See Brown v. State, 911 S.W.2d 744, 747-48 (Tex. Crim. App. 1995). The link need not be so strong as to preclude every other reasonable explanation except the accused's guilt. See id. at 748; Bates v. State, 155 S.W.3d 212, 216 (Tex. App.-Dallas 2004, no pet.); Smith v. State, 118 S.W.3d 838, 842 (Tex. App.-Texarkana 2003, no pet.).Possession of Cocaine Case
In his sixth issue, appellant contends that the evidence is factually insufficient to support the verdict in the cocaine case. The State was required to prove beyond a reasonable doubt that appellant knowingly possessed cocaine with intent to deliver in an amount of 4 grams or more but less than 200 grams. See Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2010). Appellant does not attack each element of the State's proof; he contends only that the evidence does not show he possessed the cocaine. We disagree. The jury charge authorized the jury to convict appellant in the cocaine case as either a principal or a party. A defendant can be guilty as a party to an offense when the evidence proves he acted with intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02(b) (Vernon 2003). Appellant argues that there is no evidence connecting him to the house, he did not attempt to flee or make incriminating statements or gestures, he was not under the influence of drugs when arrested, the cocaine was hidden, there is no evidence he knew about the cocaine, and he did not have money or drugs on his person when he was arrested. But the evidence also showed that the house was a "trap" house-a house used only for the purchase and sale of drugs and in which no one regularly lives. It contained nothing of value except the cocaine, PCP, and firearm. The house had one chair, a mattress leaned against a wall, and drug paraphernalia. The doors were barricaded to prevent entry, all the windows had bars or cages over them, and a surveillance camera monitored the front yard. Boyett testified that in his experience only people involved in the trade are allowed inside a "trap" house. He also explained that the drug trade has many "roles," one of which is a "lookout"-someone who watches for police and warns the others. The jury could have reasonably inferred that appellant was the "lookout" because he was in the living room with the camera and monitor and he was looking out the front window. The jury also could have reasonably inferred that he ran to warn Hood when he saw the police arrive. We conclude that the evidence is factually sufficient to show that appellant possessed the cocaine. We resolve appellant's sixth issue against him.Firearm Case
In his third and fourth issues, appellant contends that the evidence is legally and factually insufficient to support the jury's verdict that he unlawfully possessed a firearm. As applicable to this case, a person commits the offense of unlawful possession of a firearm if he was previously convicted of a felony and possesses a firearm after the conviction and before the fifth anniversary of the person's release from confinement. Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2009). Appellant does not dispute that he was previously convicted of a felony. As a result, we examine only the evidence that he possessed a firearm. As we stated previously, the testimony showed that this was a "trap" house and that only people involved in the drug trade would have been permitted inside. The house was heavily fortified to prevent entry by unauthorized people. Besides the woman, Hood and appellant were the only people in the house. The jury could have reasonably inferred that appellant was the "lookout" for Hood. Appellant argues that the State's proof did not connect him to the firearm. But the same analysis of the links that we applied in the cocaine case apply in the firearm case. Appellant was found inside a drug house and it was reasonable to conclude that appellant was a "lookout" for Hood. Although the firearm was under the chair and not in plain view, it was found in the same room that appellant was in when the police first arrived, and Boyett testified that firearms are commonly used in the drug trade to protect both people and property. Viewing the evidence under the appropriate standards, we conclude that a rational trier of fact could have found that appellant possessed the firearm. We resolve appellant's third and fourth issues against him.Jury Charge Error
Appellant argues that the jury charges in both cases contained errors. In our review of alleged jury charge error, we first determine whether the charge contains error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If it does, then we must determine whether the appellant suffered harm. Id. If the appellant objected to the charge, then we review the record for evidence of "some harm." "Some harm" means any actual harm, not merely theoretical harm. Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008). If the appellant did not object to the charge, we examine the record for evidence of egregious harm. Barrios, 283 S.W.3d at 350. "Errors that result in egregious harm are those that affect `the very basis of the case,' `deprive the defendant of a valuable right,' or `vitally affect a defensive theory.'" Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). We assess harm in light of the entire jury charge; the state of the evidence, including contested issues and the weight of the probative evidence; the arguments of counsel; and any other relevant information revealed by the record as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).Possession of Cocaine Case
In his fifth issue, appellant argues that the trial court erred by not defining "intent" in the court's charge in the cocaine case. Because appellant objected to the charge on this basis, if we find error, we review the record for evidence of some harm. The State was required to prove that appellant (1) knowingly (2) possessed (3) with intent to deliver (4) cocaine (5) in an amount of 4 grams or more but less than 200 grams. See Tex. Health Safety Code Ann. § 481.112(a). When a word, term, or phrase as used in an element of the offense is statutorily defined, it should be defined in the court's charge. See Mosley v. State, 686 S.W.2d 180, 182 (Tex. Crim. App. 1985); Watson v. State, 548 S.W.2d 676, 679 n. 3 (Tex. Crim. App. 1977) ("The trial court should always include the statutory definitions in its jury instructions where applicable."). The State argues only that any error was not harmful. Assuming error, we agree the error did not cause appellant harm.The Jury Charge
The trial court set out the elements of the offense in the abstract portion of the charge. Although the charge did not include a definition of "intent," it did include definitions of "knowingly," "possession," and "deliver." In the application portion of the charge, the trial court placed the burden of proof properly on the State to show that appellant "knowingly possessed with intent to deliver a controlled substance, cocaine,. . . ." and included all of the elements of the charged offense. See Bedford v. State, 666 S.W.2d 574, 575 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd) (citing Doyle v. State, 631 S.W.2d 732, 735 (Tex. Crim. App. 1982)).Voir Dire
The record reveals that there was extensive voir dire on the element of "intent to deliver." The panel discussed how the State might prove "intent to deliver," such as by the quantity of drugs and the way the drugs were packaged. The State described "intent to deliver" as "I am going to either sell it, give it, or transfer it to somebody." Defense counsel told the panel that there are "four mental states in Texas. Intent, that's the highest state. That's the person's conscious objective."The Evidence
The evidence supported the jury's finding that appellant possessed the cocaine with intent to deliver. One of the State's witnesses testified that he looks at certain factors in determining "intent to deliver": the quantity of drugs, the way the drugs were packaged, whether scales or packaging materials were also found, whether there was a large quantity of cash in small denominations, whether the doors and windows of the house were fortified or barricaded, and whether the house had little or no furniture, utilities, or clothes. The evidence in this case showed that the house was used solely for the purpose of selling drugs: it had one chair, one mattress, no clothes, a small amount of food in the refrigerator, and was heavily fortified to prevent entry by unauthorized people. Appellant was arrested inside the house. Boyett testified that the only way appellant would have been allowed inside the house was because he served a role in selling the cocaine. As we previously stated, the jury could have reasonably inferred that appellant served the role of "lookout." The police found 125 baggies of cocaine, each worth $10, and containing a total of over 7 grams of cocaine, along with a vial of PCP, a digital scale, and a loaded firearm. Testimony showed that the amount of cocaine found in the house and the way it was packaged indicated it was for sale, not for personal use.Closing Arguments
The closing arguments also included extensive discussion of the "intent" element. During his closing argument, defense counsel read a definition of "intentionally" to the jury: "A person acts intentionally or with intent with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct." See Tex. Penal Code Ann. § 6.03(a) (Vernon 2003). Although he was referring specifically to the firearm case when he read the definition to the jury, because it was a consolidated trial, we cannot ignore that the jury was told what "intent" means. Counsel told the jury that intent is proven "by acts done and words said." He also stated in closing that the quantity of cocaine seized from the house "is enough here for intent to deliver in the baggies and all this. I would have to think that you're a fool-you guys are fools if I were to tell you, oh, no, that doesn't prove intent to deliver. . . . Yeah, . . . that's what they were doing. That's what Mr. Hood was doing, but there's no evidence that's what [appellant] was doing." In summary, the element of "intent to deliver" was discussed during voir dire, the testimony supported a finding that the cocaine was for sale and not personal use, and defense counsel defined "intent" for the jury during closing arguments. After reviewing the record as a whole, we cannot conclude that appellant suffered actual harm from the trial court's failure to define "intent" in the charge. We resolve issue five against appellant.Firearm Case
In his first issue, appellant complains that the jury charge misstated and misapplied the law of parties to the offense of unlawful possession of a firearm and allowed the jury to improperly convict him. He contends that the charge allowed the jury to convict him of something that is not a crime. The State does not address whether charge error occurred. Instead, it argues that appellant did not suffer egregious harm from the error because the evidence is such that "it is likely the jury found Appellant guilty for actually possessing the firearm, as opposed to being a party to such offense." We agree with appellant. The function of an indictment is to give notice to the defendant of the charge against him. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The indictment in this case charged appellant with unlawful possession of a firearm by a felon:Defendant . . . did then and there intentionally and knowingly possess a firearm, to wit: a handgun, after said defendant was duly and legally convicted . . . of the offense of possession of a controlled substance . . . and said possession occurred before the fifth anniversary of the defendant's release from confinement for the said prior felony conviction. . . .In contrast, the function of the jury charge is to instruct the jury on the law applicable to the case. Id. It is the instrument by which the jury convicts and, as a result, must contain an accurate statement of the law and must set out all the essential elements of the offense. Id. A charge is fundamentally defective if it authorizes a conviction on a set of facts that do not constitute an offense. Zuckerman v. State, 591 S.W.2d 495, 496 (Tex. Crim. App. 1979). As applicable to this case,
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. . . .Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2009). The charge instructed the jury to find appellant guilty if it found and believed from the evidence beyond a reasonable doubt that appellant
unlawfully and knowingly or intentionally possessed a firearm, a handgun, or that, during the commission of an offense to which he was a party, if any there was, knew that a deadly weapon would be used or exhibited by another party to such offense, if any . . . and that the possession of a firearm, if any, whether personally or as a party, occurred before the fifth anniversary of the defendant's release from confinement. . . . (emphasis added).But section 46.04(a)(1) does not authorize a conviction if the person "during the commission of an offense to which he was a party, . . . knew that a deadly weapon would be used or exhibited by another party to such offense." See id. This instruction is an erroneous statement of the law of unlawful possession of a firearm, and we conclude that the trial court abused its discretion by including it in the court's charge to the jury. We now must determine if appellant was harmed by the error. Because appellant did not object to the jury charge on this basis, we review the entire record for evidence of egregious harm. Barrios, 283 S.W.3d at 350.
The Jury Charge
The charge in the firearm case as a whole included both accurate and inaccurate parts. The application portion of the charge properly instructed the jury that it could convict appellant if it found that he "unlawfully and knowingly or intentionally possessed a firearm. . . ." But it also improperly instructed the jury that it could convict appellant if it found that he knew a firearm would be used or exhibited by another party to an offense to which appellant was a party. The charge instructed the jury that "[y]ou are the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given the testimony, but you are bound to receive the law from the Court, which is herein given you, and be governed thereby." In other words, the jury was told that it must follow the law presented in the charge. See Green v. State, 233 S.W.3d 72, 81 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). But that law was erroneous.Voir Dire
In voir dire, the State told the panel that appellant had to knowingly possess the firearm, in other words, he had "to know what's going on." In explaining the law of parties during voir dire, the State gave an example and said, "He knowingly helped me. He knew what I was doing and he helped the commission of the offense. The same thing works true for any crime. If you know what's going on and you help it, you're guilty of it." The voir dire portion of trial accurately pointed out that appellant had to knowingly possess the firearm, but that the possession could be joint or as a party.Opening Statements
The State's opening statement reinforced the notion that appellant possessed the firearm jointly with Hood: the State told the jury, "Mr. Edwards was in control of this house, you will hear, with this other individual was in control of the dope and the gun and everything else inside."The Evidence
The evidence showed that the firearm was found in the same room in which appellant was seen looking out the window when the police first arrived at the house. It also showed that the firearm was under a chair and was not in plain view. Boyett testified that he did not see appellant holding the firearm and he did not test the firearm for fingerprints. But he also testified that he believed appellant was, at the very least, a party to both offenses. Boyett testified that in his experience appellant would not have been allowed inside the house unless he played a role in the drug trade, such as a lookout. And he testified that firearms are commonly used in the drug trade to protect property and people.Closing Arguments
In closing, both the State and the defense argued that the jury had to believe appellant knowingly possessed the firearm, but the State also argued that appellant could be convicted as a party on either case:You don't have to hold the gun or point it at somebody or brandish it or threaten anybody to use a gun. Read the charge. It says it's — simple possession is enough. If you — if it facilitates the commission of an offense. The guns — do guns facilitate the commission of dealing dope? Absolutely. You don't have to have it in your hand. Possession is the same definition, if you exercise control over it. So that's what you have to answer. Did this man exercise control over any of this stuff, either by himself or the [sic] party?
. . . .
Your whole issue is on the gun case, did he knowingly possess the gun, okay? . . . So on both cases, the drug and the gun case, it comes down to his possession, and that's what you ultimately have to decide and just apply your common sense and look at all the evidence.Defense counsel argued that there was no evidence that appellant knowingly or intentionally possessed the firearm. In summary, the record shows that the jury charge instructed the jury that it could convict appellant on an erroneous legal theory. Green, 233 S.W.3d at 83. Although the evidence supports a conviction under the appropriate legal theory, it also supports a conviction under the erroneous legal theory, and we cannot discern upon which theory the jury relied. See id. at 81. A finding that appellant knew that a firearm would be used or exhibited during the commission of an offense to which he was a party is not the same as a finding that appellant knowingly or intentionally possessed a firearm. The State's focus on appellant as a party to the cocaine offense did not serve to correct the misdirection the jury was given. See id. at 85-86. And we conclude that this charge made the "case for conviction . . . clearly and significantly more persuasive." See Jones v. State, 300 S.W.3d 93, 100 (Tex. App.-Texarkana 2009, no pet.). We sustain appellant's first issue. We reverse the trial court's judgment in the unlawful possession of a firearm case and remand that case to the trial court for further proceedings. Because of our disposition of this issue, we do not need to consider appellant's second issue, in which he contends that he received ineffective assistance of counsel because his trial counsel did not object to the jury charge in the firearm case.