Opinion
No. 14-04-00305-CR
Opinion filed November 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 950,037. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
OPINION
Appellant, Terrence Dewoyne Eli, was charged by indictment with possession of cocaine with intent to deliver. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (f) (Vernon 2003). Appellant entered a plea of "not guilty" and elected to have the jury assess punishment in the event of a guilty verdict. The jury found appellant guilty as charged and subsequently assessed punishment at fifteen years' imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a fine of $7,500. In four points of error, appellant contends (1) the trial court erred in overruling his Batson challenge, (2) the evidence was legally insufficient, (3) the evidence was factually insufficient, (4) and the court erred in excluding a co-defendant's allegedly inculpatory hearsay statements. We affirm. At approximately 10:00 a.m., on March 26, 2003, appellant was a passenger in a vehicle traveling on Interstate 10 near Baytown, Texas. Two Texas Department of Public Safety troopers noticed that neither appellant nor the driver of the vehicle was wearing a seat belt. In response, the troopers executed a routine traffic stop. Once stopped, the driver, later identified as Donald Hayward, immediately exited the vehicle and met Trooper Brenda Hoover at the rear of the car. This action aroused Hoover's suspicions because typically drivers wait inside their vehicle until an officer approaches. With her senses heightened, Hoover noticed the odor of marijuana emanating from Hayward. Hoover gestured to her partner, Trooper Nathaniel Taylor, who then approached the passenger side of the vehicle. Taylor asked appellant to step out of the car. Appellant complied with Taylor's request. After ordering Hayward to stand in front of the patrol car, Hoover also walked towards the passenger side of the vehicle. From there, Hoover observed marijuana residue and a small package wrapped in masking tape on the floorboard behind the passenger seat. Hoover voiced her observation about the package and instantly appellant took off running. Taylor quickly gave chase, and Hoover handcuffed and secured Hayward inside the patrol car. Hoover also put in a request for backup. Within minutes, appellant was apprehended and returned to the scene. Shortly thereafter, DPS Corporal Kevin James also arrived on the scene and proceeded to question both suspects. A field test on the contents of the package indicated the presence of cocaine. Later tests showed the substance was 992.90 grams of cocaine.
State's Use of Peremptory Strikes
In his first point of error, appellant contends the trial court erred in overruling his Batson motion because the State allegedly used its peremptory challenges to strike minority members of the venire. After the parties exercised their peremptory strikes, appellant alleged the State improperly used strikes against veniremembers 19, 25, 30, 34, and 36 based on their race. After appellant made his objection, the trial court asked the State to provide a race-neutral reason for the strikes. Excluding a person from jury service because of race violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. U.S. CONST. amend. XIV; Batson v. Kentucky, 476 U.S. 79, 89 (1986); see also Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989) (codifying the procedure for making a Batson challenge). A party challenging an opposing party's exercise of peremptory strikes on racial grounds bears the ultimate burden to persuade the trial court regarding racial motivation. Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999). The same party bears the initial burden to establish a prima facie case of racial discrimination by the State against an eligible veniremember. Id. However, because the trial court asked the State to articulate its reasons for the questionable strikes, we need not consider the preliminary issue of whether appellant made a prima facie showing of racial discrimination. See Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App. 1996); Wheatfall v. State, 852 S.W.2d 829, 835 (Tex.Crim.App. 1994); Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App. 1992). The second step in the Batson analysis requires the proponent of the strike to tender a valid, race-neutral reason for the strike. Purkett v. Elem, 514 U.S. 765, 767-68 (1995); Ford, 1 S.W.3d at 693. Thus, in response to appellant's objection and the trial court's request, the State was required to articulate a clear and reasonably specific explanation of legitimate reasons for its challenged strikes. Sloan v. State, 809 S.W.2d 224, 226 (Tex.Crim.App. 1991). Here, the State replied to each of appellant's five specific objections. Appellant concedes the State had a valid justification to strike all but one of the complained-of potential jurors. Therefore, appellant's ultimate complaint on appeal is that his Batson challenge should have been upheld because the State had no valid, race-neutral reason for striking Juror No. 36, Earline Carey, a member of the alternate jury pool. The State asserted that its reason for striking Ms. Carey was that she became the least preferred alternate juror by process of elimination. More specifically, the State explained it had three choices from the alternate pool. Juror No. 37 stated he wanted to be on the jury and Juror No. 38 suggested he was previously on a jury that found the defendant guilty. Thus, of the three potential jurors in the alternate pool, Ms. Carey was the only one the State felt would not be a good juror. Once the State proffered this reason, appellant had the burden of persuading the trial court that the State's explanation was pretextual and that the strike was in fact racially motivated. Ford, 1 S.W.3d at 693-94. However, appellant's counsel failed to question the State about its race-neutral explanation or present any evidence establishing the illegitimacy of its explanation. We will not overturn a trial court's finding that the State's race-neutral explanation was valid unless the record establishes that the finding is clearly erroneous. See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App. 1991) (holding there was no "clear error" in the trial court's ruling on appellant's Batson challenge where appellant failed to provide support in the record to overcome the State's proffered race-neutral reasons). Nothing in the record suggests the court's decision was "clearly erroneous" in this case. Accordingly, we overrule appellant's first point of error.Sufficiency of the Evidence
In appellant's second and third points of error, he argues the evidence was both legally and factually insufficient to support his conviction. Specifically, appellant contends the evidence failed to establish he was either in possession of the cocaine or otherwise knew about, and was in control of, the substance. In other words, appellant contends the evidence failed to prove that anyone but his co-defendant, Hayward, was responsible for the presence of cocaine in the vehicle. When reviewing the legal sufficiency of the evidence, 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). When reviewing the factual sufficiency of the evidence, we consider all of the evidence in a neutral light and are required to determine whether the trier-of-fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting, and contrary to, the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met and the guilty verdict should not stand. Id. at 485. However, we must be mindful that it is within the province of the trier-of-fact to resolve any conflicts and inconsistencies in the evidence, and that the trier-of-fact is free to believe or disbelieve part or all of a witness' testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). Therefore, we must defer to the jurors who observed the demeanor of the witnesses and avoid substituting our judgment for theirs. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In order to establish the offense of unlawful possession of a controlled substance, the State must show: (1) the accused exercised care, control, or management over the contraband; and (2) he knew that what he possessed was contraband. Tex. Health Safety Code Ann. § 481.112(a), (f); Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987); Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Appellant contends the evidence was legally and factually insufficient to support his conviction because nothing indicates he exercised control over the cocaine or otherwise proves he knew cocaine was in the vehicle. To support his contention, appellant points out: (1) his co-defendant, Hayward, was the driver of the vehicle; (2) Hayward's mother owned the vehicle; (3) Hayward was allegedly seen putting something on the floorboard where the cocaine was found; (4) Hayward had prior drug convictions, whereas appellant had none; and (5) the only reason appellant fled from officers was because of the presence of marijuana — not cocaine. When, as here, the defendant is not in exclusive control of the place where the contraband is found, the State must show additional affirmative links between the defendant and the contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988); Washington v. State, 902 S.W.2d 649, 652 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). These affirmative links may be proved by circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). The evidence does not need to be so strong that it excludes every other reasonable defensive theory; rather, it must merely raise a reasonable inference of the accused's knowledge and control of the contraband. Id. at 748; Hurtado, 881 S.W.2d at 742. Factors that may establish the necessary links include whether: (1) the defendant was present when the drugs were found; (2) the drugs were found in proximity to, and accessible to, the defendant; (3) the amount of drugs was substantial; (4) the drugs were in plain view; (5) the defendant possessed other contraband or drug paraphernalia; (6) the odor of drugs was present; (7) conduct by the defendant indicated a consciousness of guilt; (8) the defendant attempted to flee; (9) the defendant owned, or had the right to possess, the place where the drugs were found; (10) the defendant was the driver of the automobile in which the drugs were found; (11) the drugs were found on the same side of the car as the defendant was sitting; (12) the place where the drugs were found was enclosed; (13) paraphernalia to use the drugs was in view of, or found on, the defendant; (14) the defendant has a special connection with the drugs; (15) occupants of the automobile gave conflicting statements about relevant matters; (16) the defendant was under the influence of drugs when arrested; (17) affirmative statements connect the accused to the contraband; (18) the defendant possessed weapons and/or large amounts of cash. See Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Wallace v. State, 932 S.W.2d 519, 524 n. 1 (Tex.App.-Tyler 1995, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). The number of factors present is not as important as the "logical force" or the degree to which the factors affirmatively link the accused to the drugs. Wallace, 932 S.W.2d at 524 (quoting Gilbert, 874 S.W.2d at 298). Once these factors provide the requisite affirmative links, a reasonable inference arises that the accused knew of the contraband's existence and exercised control over it. Brown, 911 S.W.2d at 747; Washington, 902 S.W.2d at 652. The evidence in this case provides ample support to reasonably link appellant to the cocaine. Appellant was riding as a passenger in the vehicle when the cocaine was discovered. The package contained nearly a kilogram of cocaine and was in plain view when officers stopped the vehicle. The cocaine was on the same side of the car as appellant and was within appellant's reach. In addition to the cocaine, the police also found marijuana and drug paraphernalia on the floorboard near appellant's seat. Finally, the fact that appellant's seat was lowered suggests he was attempting to conceal items on the floorboard behind his seat — where the cocaine was found — rather than merely a comfortable way of sitting in the seat as appellant contends. This furtive gesture indicated a consciousness of guilt. Appellant also attempted to flee as soon as he realized officers had located the cocaine, further indicating a consciousness of guilt. After reviewing the evidence and considering the factors outlined above, we find the evidence was both legally and factually sufficient to affirmatively link appellant to the cocaine. See Hyett, 58 S.W.3d at 831-32. We do not believe the jury's finding of guilt was either irrational or otherwise unsupported by evidence beyond a reasonable doubt. Accordingly, we overrule appellant's second and third points of error.Admissibility of Declaration Against Interest
In his fourth point of error, appellant contends the trial court improperly refused to admit hearsay statements allegedly made by Hayward and offered through the testimony of appellant's mother, Hattie Davis, and one of Hayward's friends, Gregory Taylor. At trial, Ms. Davis testified that appellant and Hayward had been friends for five or six years. She further stated that, after the two individuals were arrested, Hayward called her from the Harris County Jail. Appellant then sought to elicit testimony about the contents of the phone conversation and asked Ms. Davis to testify as to what Hayward said. The State objected on hearsay grounds. Appellant argued the conversation was admissible as a statement against penal interests, an exception to the general hearsay rule under Texas Rule of Evidence 803(24). The court then asked for corroborating evidence and ordered appellant to make an offer of proof. Outside the presence of the jury, appellant then offered the following:[Appellant's Counsel]: Hattie Davis, mother of [appellant], knows, recognizes Mr. Hayward, the co-defendant's voice, saw the caller I.D. from Harris County. Mr. Hayward called her and said, Look, I will take care of you and [appellant] financially if he will take the case for me. He has no felony records, whereas I am a felon. So, I can't get hit for this.[The Court]: Okay.
[Counsel]: Then a gentleman by the name of Gregory Taylor went up and visited with Mr. Hayward and Mr. Hayward told Mr. Taylor face-to-face that, Look, I am an ex-con. I can't take this case. You get [appellant] to take this case for me because he doesn't have a record and I will hire him a hired lawyer just like mine.Appellant argued the second witness provided sufficient corroboration for the testimony to be admissible. The State reiterated its objection on hearsay grounds and also claimed the conversation was irrelevant and overly prejudicial. The trial court agreed and sustained the State's objection. A trial court has broad discretion over the admission or exclusion of evidence, including hearsay statements under Rule 803(24). Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). We will not reverse the trial court's decision unless there was clear abuse of discretion, i.e., its decision was outside the "zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App. 2001). Deciding whether a hearsay statement is admissible in accordance with Rule 803(24) requires a two-step inquiry. Bingham, 987 S.W.2d at 57. First, the court must determine whether the statement in question tends to expose the declarant to criminal liability. Id. Second, the court must determine if there are corroborating circumstances that clearly indicate the trustworthiness of the statement. Id. A hearsay statement is inadmissible unless both of these criteria are satisfied. Id. In reviewing the trial court's decision, we must first determine whether Hayward's statements were sufficiently self-inculpatory to satisfy Rule 803(24). In a phone conversation with appellant's mother, Hayward promised to provide the family with financial assistance if appellant agreed to "take the case." In a similar conversation with a friend, Hayward allegedly promised to hire an attorney for appellant if appellant would "take this case for me." In terms of inculpating Hayward, neither of these statements constitute a clear admission of guilt. Likewise, neither of the statements indicates Hayward was taking responsibility for the cocaine. Instead, Hayward's comments suggest an attempt to shift to appellant all responsibility for the cocaine possession. As the United States Supreme Court explained in Williamson v. United States, "the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor [with the authorities]." 512 U.S. 594, 603 (1994) (emphasis added). Moreover, the Texas Court of Criminal Appeals relied on Williamson in holding that Rule 803(24) "'does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.'" Miles v. State, 918 S.W.2d 511, 515 (Tex.Crim.App. 1996) (quoting Williamson, 512 U.S. at 600-01). Therefore, even if we believed that Hayward's statement were part of a broader implication of guilt, the statements themselves are not sufficiently self-inculpatory to be admissible under Rule 803(24). Furthermore, while Hayward's statements may have impliedly been against his penal interest, declarations that he would provide financial benefits to appellant or hire appellant an attorney if he agreed to "take the case" are not "so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in declarant's position would not have made the statement[s] unless believing [them] to be true." TEX. R. EVID. 803(24); see also Guidry v. State, 9 S.W.3d 133, 148-49 (Tex.Crim.App. 1999) (finding statements in a murder case inadmissible under Rule 803(24) because they inculpated the defendant as the primary actor, even though the statements often used the term "we" when describing the criminal acts); Mendez v. State, 56 S.W.3d 880, 887-90 (Tex.App.-Austin 2001, pet. ref'd) (explaining that a co-defendant's statement that is "broadly self-inculpatory may nevertheless be inadmissible if it is blame shifting" and that "even statements that expose the declarant to potential legal liability may be inadmissible if they incriminate the defendant to a greater degree") (emphasis in original); Zarychata v. State, 961 S.W.2d 455, 458-59 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (holding an accomplice's attempt to shift blame was inadmissible under Rule 803(24) because it was an attempt to minimize the declarant's own role, not an acceptance or statement implicating the declarant's penal interests). Since Hayward's statements were an attempt to shift the blame to appellant and minimize Hayward's own criminal liability, they were not statements against his penal interest as defined under 803(24). Accordingly, the trial court did not abuse its discretion in excluding the statements. Assuming arguendo that the statements sufficiently incriminated Hayward, we are next required to determine if there were corroborating circumstances that clearly indicated the trustworthiness of the statements. There is no definitive test by which to gauge the existence of corroborating circumstances. Davis v. State, 872 S.W.2d 743, 748-49 (Tex.Crim.App. 1994). Instead, the focus of the inquiry should be on verifying, to the greatest extent possible, the trustworthiness of the statement so as to avoid the admissibility of a fabrication. Id. All evidence should be considered in determining whether there are corroborating circumstances clearly indicating the trustworthiness of a statement against interest. Cofield v. State, 891 S.W.2d 952, 955 (Tex.Crim.App. 1994); Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App. 1994). Generally courts may consider specific factors to determine the reliability of a statement, including: (1) whether the guilt of the declarant is inconsistent with the guilt of the accused; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration and its spontaneity; (4) the relationship between the declarant and the party to whom the declaration was made; and (5) the existence of independent, corroborative facts. Bingham, 987 S.W.2d at 58; Davis, 872 S.W.2d at 748-49. However, as the United States Supreme Court has explained "a codefendant's confession is presumptively unreliable as to the passages detailing the defendant's conduct or culpability because those passages may well be the product of the codefendant's desire to shift or spread blame, curry favor, avenge himself, or divert attention to another." Lee v. Illinois, 476 U.S. 530, 545 (1986) (emphasis added). Therefore, a very high burden is placed on the party seeking admission of the statement to establish the necessary corroborating circumstances, particularly where the statements attempt to shift blame. Davis, 872 S.W.2d at 749; White v. State, 982 S.W.2d 642, 649 (Tex.App.-Texarkana 1998, pet. ref'd); Jefferson v. State, 909 S.W.2d 247, 251 (Tex.App.-Texarkana 1995, pet. ref'd). Here, nothing about Hayward's statements rebut the presumption of inherent unreliability as it pertains to appellant's culpability. Considering Hayward's alleged prior drug convictions and the fact that appellant had none, a reasonable person in Hayward's position might have many motives for making such statements. It is certainly conceivable that a person might make a statement in hopes that the co-defendant takes the case and is found guilty. Then, the declarant can seek to completely avoid liability by using his co-defendant's conviction as proof of his own innocence. Accordingly, nothing about Hayward's statements rebut the presumption of unreliability. See Mendez, 56 S.W.3d at 890 ("A statement that is broadly self-inculpatory may nevertheless be inadmissible if it is blame shifting."). Moreover, we can examine the five factors outlined above to support the trial court's decision to exclude Hayward's statements. First, Hayward's statements were obviously not intended by him to be a statement against penal interest. To the contrary, Hayward was attempting to demonstrate appellant's guilt. Appellant, on the other hand, sought to introduce Hayward's statements to show that Hayward should be the sole party bearing responsibility for possessing the cocaine. Both appellant and Hayward had self-serving motives for making or attempting to offer the statements. Moreover, there is nothing in the record to suggest that Hayward and appellant did not jointly possess the contraband or that the guilt of one is necessarily inconsistent with the guilt of the other. Thus, we find no indicia of reliability to satisfy the first factor. At best, the second factor proves nothing about the reliability of Hayward's statements. Hayward was so situated that he might have been the primary actor in the offense but appellant was equally situated that he could have been the primary actor. The third factor, the timing of Hayward's declaration and its apparent spontaneity, does not indicate any inherent trustworthiness. The declaration was made from jail after Hayward had been arrested for the offense. Thus, Hayward had a personal interest in making the statements, viz, persuading appellant to take the blame so he [Hayward] could get out of jail. Fourth, the relationships between the declarant and the parties to whom the declarations were made — appellant's mother and Hayward's friend — seem to indicate very little. On one side, appellant's mother would have an interest in testifying about the statements because it might provide some assistance to her son's defense. On the other hand, Hayward's friend had an interest in convincing appellant to take responsibility for the crime so there would be no case against Hayward. Finally, independent facts tend to suggest the statements are not inherently reliable. Because of Hayward's prior drug convictions, he had an apparent motive to implicate appellant. Therefore, no circumstances clearly indicate the trustworthiness of Hayward's statements. Given the conflicting factors and the presumption of inadmissibility of unproven hearsay statements, we cannot say the trial court's decision was outside the zone of reasonable disagreement. Accordingly, we hold the trial court did not abuse its discretion in excluding the statements and overrule appellant's fourth point of error. The judgment of the trial court is affirmed.