Opinion
05-21-01043-CR
06-07-2023
JOSEPH DEAN FISHER, Appellant v. THE STATE OF TEXAS, Appellee
DO NOT PUBLISH TEX. R. APP. P. 47
On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 20-00307-422-F
Before Justices Pedersen, III, Garcia, and Kennedy
MEMORANDUM OPINION
NANCY KENNEDY JUSTICE
Joseph Dean Fisher appeals the judgment in his conviction for possession of a controlled substance, namely a material or compound containing tetrahydrocannabinol, in an amount of four grams or more but less than 400 grams. In two issues, appellant challenges the legal sufficiency of the evidence to support the jury's verdict and argues the trial court erred by admitting evidence of an extraneous offense. We affirm. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.
Background
In the early hours of the morning of January 27, 2019, appellant was driving on a highway where a patrol sergeant with the Crandall Police Department was parked. Sergeant Joshua Early observed appellant's car had a tail lamp on the passenger side that was not working. After deciding to make a traffic detention of appellant's car, the sergeant drove behind appellant's car with his patrol car's emergency lights on, and appellant pulled over to the side of the highway. Appellant stuck his hands out of the driver's window, waved his hands at the sergeant, and asked him to turn the flashing lights off "due to him having a seizure." Sergeant Early turned off the lights and asked the driver, appellant, to get out of his car.
The sergeant explained at trial that he asked appellant to step out of his car instead of approaching appellant's car because he uses his car's flashing lights he had turned off "as cover" and that when the lights are not flashing, they "silhouette me and make me an easy target."
As appellant got out of his car and walked towards the sergeant, he ducked his head to cover his eyes and had an unlit cigarette in his heads, both of which indicated to the sergeant that appellant was stressed and nervous. Sergeant Early asked him where he was coming from, and appellant responded he was coming from Lewisville after visiting his mother. Sergeant Early explained he had stopped appellant because of a broken tail lamp. The sergeant noticed that appellant attempted to put his hands in his pockets, and he directed appellant not to do so. The sergeant patted appellant down to ensure he did not have any weapons and found a clear plastic bag of burned self-rolled cigars containing marijuana inside appellant's left front pants pocket. Sergeant Early explained to appellant that he was detaining him and then went to talk with the passengers in the car appellant was driving.
As he approached appellant's car, the sergeant noticed Shelly Sides, who had been sitting in the front passenger seat, was moving around quite a bit inside the car, while another passenger, Zackary West, appeared to be asleep in the backseat. Sergeant Early woke West, identified him, and then removed him from inside appellant's car and directed him to the front of the car. Seeing Sides continue to move inside the car, which he believed could indicate she was looking for a weapon or concealing something, the sergeant requested that she place her hands on the dashboard.
Sergeant Early questioned West, who said they were coming from Seagoville where they had dropped off his new friend and cousin. After informing West that he intended to search the car because he had found marijuana in appellant's pocket, the sergeant escorted West to the rear of the car and asked him if he had anything inside the car. West responded that he had approximately four to five grams marijuana inside the car, and he indicated he had a traffic warrant out of Seven Points.
Sergeant Early later learned that West was in a romantic relationship with Sides' daughter and that Sides and appellant were married.
Sergeant Early got Sides out of the car and noted that she appeared disheveled and intoxicated from a narcotic. He also noticed that Sides was wearing a large jacket and protruding from one of the pockets was a rolled up gallon-sized plastic bag with marijuana in it. According to Sergeant Early, the jacket appeared to be masculine and larger than the other clothing items Sides was wearing. Sides told the sergeant that they were traveling from Lewisville. Sergeant Early saw that she had a potholder in her other jacket pocket, which according to his training could indicate she had been using a glass pipe to ingest methamphetamine, so he asked her whether there was any methamphetamine in the car, which she denied.
With three individuals detained on the side of the highway, Sergeant Early radioed for backup. While waiting for backup, he asked appellant if he possessed anything else inside the car, and he responded that he had another quarter of an ounce of marijuana in the car and asked if he could "just give it to [the sergeant]." The sergeant replied he would be searching the car.
After searching the inside of appellant's car, Sergeant Early found: a used glass pipe in the center console with what appeared to be methamphetamine residue; and a purple plastic bag and a clear plastic bag, both containing marijuana, and a multicolored glass pipe with burnt marijuana residue in the back pocket of the front passenger seat. Sergeant Early returned to appellant to ask him where the marijuana had mentioned was located. Appellant responded it was in Sides' jacket pocket. Sergeant Early then asked appellant who the methamphetamine pipe belonged to, and, without answering the question, appellant placed his left ear on the hood of the sergeant's patrol car, claiming an inner ear infection.
After backup arrived and appellant and the two passengers had been placed under arrest, Sergeant Early searched the trunk of the car. In the truck, he found a red and black box with what looked like plastic wrapped lollipops and hard candies, or collectively, suckers, inside. Underneath the box, the sergeant found two vacuum-sealed bricks of what appeared to be marijuana. Based on his experience and the proximity of the bricks of marijuana, Sergeant Early suspected the suckers would have marijuana, tetrahydrocannabinol, cocaine, or methamphetamine in them. The sergeant also found a broken methamphetamine pipe in the trunk.
Appellant was charged by indictment with possession of a controlled substance in an amount greater than four and less than or equal to 400 grams of a material or compound that contained a quantity of tetrahydrocannabinol. The indictment was enhanced with prior convictions for robbery, sexual assault, and violation of sex offender registration. The case proceeded to trial before a jury who found appellant guilty. The trial judge assessed appellant's sentence at forty years' confinement. This appeal followed.
Discussion
I. Legally Sufficient Evidence Supported the Verdict
In his first issue, appellant argues the evidence was insufficient to establish that he intentionally or knowingly possessed the suckers, urging none of the evidence, other than uncorroborated accomplice testimony from West, linked him to the controlled substance. As the State points out, appellant's first issue is in fact two issues: (1) whether sufficient evidence establishes he intentionally and knowingly possessed the THC suckers and (2) whether West's accomplice-witness testimony is sufficiently corroborated under article 38.14 of the code of criminal procedure.
A. Evidence of Intentional and Knowing Possession
Appellant was charged with possessing a material or compound containing tetrahydrocannabinol in an aggregate amount of greater than four and less than or equal to 400 grams. See Tex. Health & Safety Code § 481.116(a), (d). To prove the requisite intent to possess, the State had to show that appellant (1) exercised control, management, or care over the substance in question and (2) that he knew that the substance was contraband. See Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing id. § 481.116(a); see also Tex. Penal Code § 1.07(a)(39) (defining possession as actual care, custody, control, or management)).
When determining whether there is sufficient evidence to support a criminal conviction, we consider the combined and cumulative force of all admitted evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt. See Tate, 500 S.W.3d at 413 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Although the State must prove that a defendant is guilty beyond a reasonable doubt, the State's burden does not require it to disprove every conceivable alternative to a defendant's guilt. See id. In a sufficiency inquiry, direct evidence and circumstantial evidence are equally probative. See id. (citing Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013)).
The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses, and juries may draw multiple reasonable inferences from the facts so long as each is supported by the evidence presented at trial. See Tate, 500 S.W.3d at 413 (citing Jackson, 443 U.S. at 319; Hooper v. State, 214 S.W.3d 9, 16- 17 (Tex. Crim. App. 2007)). The jury is not, however, allowed to draw conclusions based on speculation. See id. (citing Hooper, 214 S.W.3d at 16). Unlike a reasonable inference, speculation is insufficiently based on the evidence to support a finding beyond a reasonable doubt. See id. (citing Hooper, 214 S.W.3d at 16). When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict. See id. (citing Jackson, 443 U.S. at 326).
A defendant's mere presence is insufficient to establish possession. See Tate, 500 S.W.3d at 413 (citing Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982)). When the contraband is not in the exclusive possession of the defendant, a fact finder may nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there are sufficient independent facts and circumstances justifying such an inference, otherwise known as the "affirmative links test." See id. (citing Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006)). The following non-exclusive list of factors may indicate a link connecting the defendant to the knowing possession of contraband:
(1) the defendant's presence when a search is conducted;
(2) whether the contraband was in plain view;
(3) the defendant's proximity to and the accessibility of the narcotic;
(4) whether the defendant was under the influence of narcotics when arrested;
(5) whether the defendant possessed other contraband or narcotics when arrested;
(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 contraband;
(10) whether other contraband or drug paraphernalia were present;
(11) whether the defendant owned or had the right to possess the place where the drugs were found;
(12) whether the place where the drugs were found was enclosed;
(13) whether the defendant was found with a large amount of cash; and
(14) whether the conduct of the defendant indicated a consciousness of guilt.See id. (quoting Evans, 202 S.W.3d at 162 n.12). Although these factors can help guide our analysis, ultimately the inquiry remains that set forth in Jackson: Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt? See id. (citing Jackson, 443 U.S. at 318-19).
While appellant's mere presence in the car where Sergeant Early found the drugs was insufficient, by itself, to establish the requisite degree of control to support a conviction, possession need not be exclusive. Peacock v. State, No. 05-21-01045-CR, 2022 WL 16959257, at *3 (Tex. App.-Dallas Nov. 16, 2022, pet. ref'd) (mem. op., not designated for publication) (citing Evans, 202 S.W.3d at 162). Considering the other Evans factors, we conclude the jury was rationally justified in finding appellant guilty based on the combined and cumulative force of the evidence and reasonable inferences therefrom. See Tate, 500 S.W.3d at 414.
The record contained evidence of the following affirmative links: (1) appellant was present during the search; (5) appellant possessed other contraband when arrested-the clear plastic bag containing self-rolled marijuana cigars in his pocket; (6) appellant claimed he had "weed in the car" when asked by Sergeant Early if he possessed anything else inside the car; (8) Sergeant Early observed appellant and Sides attempting to nonverbally communicate with each other during the search; (10) other contraband and drug paraphernalia was present-a methamphetamine pipe in the center console and several bricks of marijuana near the THC suckers; (11)appellant was driving the car and had access to the trunk; and (12) the THC suckers were found in an enclosed space.
In addition to Sergeant Early's testimony at trial, the record evidence includes dashcam video from the sergeant's patrol car and photographs he took during the search of appellant's car.
The numbering corresponds with that of the non-exclusive list of Evans factors above. See Evans, 202 S.W.3d at 162 n.12.
Moreover, the record contained evidence of appellant's conduct that a jury could reasonably infer indicated a consciousness of guilt. See Tate, 500 S.W.3d at 413. When appellant first approached Sergeant Early's car, he ducked his head and covered his eyes and held an unlit cigarette, all of which, the sergeant testified, indicated to him that appellant was stressed or nervous. Although he had initially requested the emergency flashing lights be turned off because he had epilepsy, appellant did not physically react to flashing lights later that same night. Additionally, the sergeant noticed that appellant was "super respectful, super kind" to him, which in his experience meant appellant was "trying basically to be a friend or buddy" to him in order to "get us to move along." Sergeant Early similarly considered appellant's claimed epilepsy and inner ear infection to be attempts to hurry the detention before the trunk of the car was searched.
We conclude the evidence, when viewed in the light most favorable to the verdict, supports appellant's conviction.
Other than his challenge to West's testimony, addressed below, appellant's remaining arguments regarding the sufficiency of the evidence may be summarized as that the evidence in the record connected passengers Sides and West to the THC suckers. The record establishes methamphetamine was found in Sides' possession and that a methamphetamine pipe was found in the trunk of the car where the THC suckers were found. Also, marijuana was found in the front seat pocket close to where West was seated and that marijuana was contained in a purple bag similar to the purple bag containing the THC suckers in the trunk. Again, however, although the State must prove that a defendant is guilty beyond a reasonable doubt, the State's burden does not require it to disprove every conceivable alternative to a defendant's guilt. See Tate, 500 S.W.3d at 413. Accordingly, we overrule this part of appellant's first issue.
B. West's Accomplice-Witness Testimony
As part of his first issue, appellant complains that the testimony of accomplice-witness West is insufficiently corroborated under article 38.14 of the code of criminal procedure.
West testified for the State that on the Friday before the date of the offense, he travelled with appellant, Sides, and appellant's cousin Anthony to Colorado to pick up "a large amount of marijuana from another cousin of appellant's, Elizabeth. The car appellant drove belonged to Side's daughter, but he had seen appellant drive the car before. Appellant told West that if the car were pulled over, appellant would "claim everything." When the group arrived at Elizabeth's house in Colorado, appellant and his cousin Anthony selected marijuana plants to be packaged for transportation. Before the group left, Elizabeth asked them to wait "because she was making suckers to give to Anthony and [appellant] to take with them," which appellant and Anthony planned to sell. Elizabeth and appellant decided to gift wrap a box of THC suckers to hide it in case the car was pulled over. Appellant and Anthony then placed the box of THC suckers in the trunk of the car. The group stopped in Lewisville to drop off some marijuana and some of the THC suckers with appellant's mother and brother and then again in Seagoville to drop off Anthony with half of the THC suckers. At each stop, appellant went to the trunk to remove some of the THC suckers.
Article 38.14 provides that "a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." See Tex. Code Crim. Pro. art. 38.14. To determine whether an accomplice's testimony is sufficiently corroborated, we eliminate all of the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (citing Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). The corroborating evidence need not be sufficient by itself to establish guilt; there simply needs to be "other" evidence "tending to connect" the defendant to the offense. See id.
As discussed above, with considering West's testimony, we concluded there was sufficient evidence to support the jury's verdict and appellant's conviction for possession of a controlled substance. This same evidence sufficiently corroborated West's testimony.
We overrule appellant's first issue.
II. Evidence Appellant Intended to Sell the Suckers Was Properly Admitted
In his second issue, appellant argues the trial court abused its discretion when it admitted evidence of an extraneous offense. In particular, appellant urges the trial court erred by admitting testimony from West that appellant planned to return home with the THC suckers and sell them. The State responds that appellant failed preserve this issue for our review because he did not object at the time the testimony was elicited.
The purpose of requiring an objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection. Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014). Rule of Appellate Procedure 33.1 states that:
(a) As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B)complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) that the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.Tex. R. App. P. 33.1(a). The complaining party must let the trial judge know what she wants and why she thinks she is entitled to it, and do so clearly enough for the judge to understand and at a time when the trial court is in a position to do something about it. See Bekendam, 441 S.W.3d at 300 (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). We are not hyper-technical in examination of whether error was preserved, but the point of error on appeal must comport with the objection made at trial. See id.
Prior to West's testimony and outside the presence of the jury, the State informed the trial court and defense counsel that West would testify that appellant was intending to sell the THC suckers. Defense counsel objected to that anticipated testimony on the grounds that the defense had no notice of that allegation. The State responded that the evidence was not that of an extraneous offense, but rather all the same criminal offense. The trial court agreed that the evidence did not seem to be a different offense but instead to be contextual evidence. Nevertheless, the judge indicated defense counsel should make any objections as the evidence was elicited. When West testified, defense counsel did not make any objections.
Notwithstanding the potential preservation issue, for the reasons set forth herein, we conclude the trial court did not err by admitting West's testimony regarding appellant's intent to sell the THC suckers.
Evidence of a crime, wrong, or act other than the offense charged is not admissible to prove that the defendant acted in conformity with his character but may be admissible for other purposes. See Tex. R. Evid. 404(b). These purposes include proving intent and motive as well as illustrating other aspects of an "indivisible criminal transaction," also known as same-transaction contextual evidence. Id.; Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex. Crim. App. 2021) (quoting Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). Same-transaction contextual evidence "illuminate[s] the nature of the crime alleged." Inthalangsy, 634 S.W.3d at 756 (quoting Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993)). A jury is entitled to know all the facts that are "blended or closely interwoven" with a continuous criminal episode. See id. (quoting Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). Yet, such same-transaction contextual evidence must be "necessary to the jury's understanding of the offense" such that the charged offense would make little sense without the same-transaction evidence. See id. (quoting Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)).
Here, we conclude that putting the evidence together illuminates the nature of the crime-that appellant possessed a large amount of THC in the form of suckers because he intended to sell them. See, e.g., Hernandez v. State, No. 05-06-01507-CR, 2008 WL 1079092, at *2 (Tex. App.-Dallas Apr. 11, 2008, no pet.) (not designated for publication) (concluding no error in admitting evidence of appellant's previous drug sales because it "showed his awareness of the . . . large amount of methamphetamine hidden in the hotel room registered in his name . . . and his intent to sell it"); Green v. State, 880 S.W.2d 198, 203 (Tex. App.-Texarkana 1994, no pet.) (concluding no error in admitting police officer's testimony that he had been attempting to purchase methamphetamine from the defendant for some time "it is one of the acts leading up to the commission of the charged offense" of possession of methamphetamine and therefore "provides proof of intent and design"). Thus, we conclude that the trial court did not err by admitting this evidence as same-transaction contextual evidence. See Inthalangsy, 634 S.W.3d at 756-57.
Accordingly, we overrule appellant's second issue.
Conclusion
We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.