Opinion
NO. 09-11-00634-CR
09-05-2012
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D110213-R
MEMORANDUM OPINION
A jury convicted Bradley J. Gilliam of felony possession of a controlled substance, sentenced Gilliam to two years in state jail, and assessed a $2,000 fine. In three appellate issues, Gilliam challenges the sufficiency of the evidence and the trial court's limitation of voir dire. We affirm the trial court's judgment.
Background
Officers Robert Estrello and Jason Laughlin conducted a traffic stop involving Gilliam. Laughlin, who had previously dealt with Gilliam's use and sale of phencyclidine ("PCP"), recognized the vehicle and Gilliam as the driver. Before the stop, Laughlin had seen Gilliam lean toward the console area of the vehicle two or three times. Estrello approached the driver's side of the vehicle and learned that Gilliam owned the vehicle. Laughlin approached the passenger, Andre Powell, and saw a wet cigarette located on the right side of the center console in plain view. Laughlin testified that the cigarette was easily accessible to both Gilliam and Powell. Estrello testified that he did not initially see or smell the cigarette.
The officers asked the occupants to step out of the vehicle and the occupants cooperated. Gilliam consented to a search of his vehicle. Laughlin seized the cigarette, and Gilliam told Laughlin that it was "just a cigarette." Gilliam never denied ownership of the vehicle or the cigarette and never claimed that the cigarette belonged to him or to someone else. Gilliam also told officers that he had not allowed another person to borrow his vehicle. Powell denied ownership of the cigarette.
Laughlin testified to smelling a very strong odor like that of lacquer thinner. He and Estrello explained that people dip cigarettes in PCP to smoke. Laughlin testified that cigarette paper has a brownish hue when wet with water, PCP, or another substance. Forensic scientist Emily Esquivel testified that when a cigarette is soaked in PCP, the PCP covers the inside and outside of the cigarette and turns the cigarette paper a yellowish green hue. She also testified that these cigarettes have a distinct chemical odor, which can be easily detected in a vehicle.
Based on the cigarette's appearance and the odor, Laughlin believed the cigarette to be laced with PCP. Because the officers could not test the cigarette at the scene, they made no arrests on the day of the stop but told Gilliam the cigarette would be tested for PCP. The cigarette was later tested and a total of .55 grams of PCP were found on the exterior and interior of the cigarette.
Sufficiency of the Evidence
In issues two and three, Gilliam contends that the evidence is insufficient to show that he exercised care, control, or management over the cigarette and knew that the cigarette was contraband. We address these issues first because, if sustained, they would afford Gilliam the greatest relief.
The "Jacksonv. Virginialegal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We assess all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the jury's responsibility to fairly resolve conflicting testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.
A person commits possession of a controlled substance if he knowingly or intentionally possesses PCP in an amount less than one gram. Tex. Health & Safety Code Ann. §§ 481.102(8), 481.115(a), (b) (West 2010). The State must prove that the accused: (1) exercised control, management, or care over the substance; and (2) knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see Tex. Health & Safety Code Ann. § 481.002(38) (West 2010).
Regardless of whether the evidence is direct or circumstantial, it must establish that the defendant's connection with the drug was more than fortuitous. This is the so-called "affirmative links" rule which protects the innocent bystander-- a relative, friend, or even stranger to the actual possessor--from conviction merely because of his fortuitous proximity to someone else's drugs. Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs. However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., "links"), may well be sufficient to establish that element beyond a reasonable doubt.Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (footnotes omitted). Factors showing a possible link between the accused and the contraband include:
(1) the accused's presence when the search was conducted, (2) whether the contraband was in plain view, (3) the accused's proximity to and the accessibility of the contraband, (4) whether the accused was under the influence of narcotics when arrested, (5) whether the accused possessed other contraband or narcotics when arrested, (6) whether the accused made incriminating statements when arrested, (7) whether the accused attempted to flee, (8) whether the accused made furtive gestures, (9) whether there was an odor of contraband, (10) whether other contraband or drug paraphernalia were present, (11) whether the accused owned or had the right to possess the place where the contraband was found, (12) whether the contraband was found in an enclosed place, (13) whether the accused was found with a large amount of cash, and (14) whether the conduct of the accused indicated a consciousness of guilt.Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).
Gilliam points to several facts to support his contention that the evidence is insufficient to establish possession: (1) he was not the vehicle's sole occupant, (2) he was not in possession of other contraband or a large amount of cash, (3) he was not under the influence of narcotics, (4) he made no incriminating statements or attempts to flee, (5) he did not exhibit conduct indicating a consciousness of guilt, (6) the cigarette was not found in an enclosed space or seen in his possession, (7) no physical evidence linked him to the cigarette, (8) Powell was closer to the cigarette and the odor of contraband was smelled on Powell's side of the vehicle, and (9) the PCP itself was not in plain view, but was only later determined to be the substance on the cigarette. To support his contention that the evidence is insufficient to establish knowledge, Gilliam argues that the evidence does not show the odor was prominent from his side of the vehicle, the substance on the cigarette could have been water, the cigarette did not have a yellowish green hue, and his conduct is consistent with lack of knowledge, i.e., he voluntarily stopped his vehicle, cooperated with the officers, and consented to a search of the vehicle.
"The absence of various links does not constitute evidence of innocence to be weighed against the links present." Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.— Houston [1st Dist.] 2010, pet. ref'd). Moreover, the State's evidence of the accused's knowledge and control over contraband need not be so strong as to exclude every other outstanding reasonable hypothesis except the accused's guilt. Gregory v. State, 159 S.W.3d 254, 260 (Tex. App.—Beaumont 2005, pet. ref'd). Gilliam was present during the search of his vehicle, the wet and discolored cigarette was in plain view, Gilliam was in close proximity to the cigarette and it was accessible to him, Gilliam was seen leaning in the direction of the cigarette, Gilliam owned and drove the vehicle, and the odor could be smelled from inside the vehicle. The logical force of all the circumstantial evidence in this case, combined with reasonable inferences, could lead a rational jury to determine that Gilliam had care, custody, control, or management of the PCP-laced cigarette and knew the cigarette was contraband. See Evans, 202 S.W.3d at 162. Viewing all the evidence in the light most favorable to the State, the jury could reasonably conclude, beyond a reasonable doubt, that Gilliam committed the offense of possession of a controlled substance. See Jackson, 443 U.S. at 318-19; see also Hooper, 214 S.W.3d at 13. We overrule issues two and three.
Voir Dire
In issue one, Gilliam contends that the trial court improperly prohibited him from questioning the venire panel regarding the reasonable doubt burden of proof as compared to other burdens of proof. We review a trial court's limitation of voir dire for abuse of discretion. Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012). A trial court abuses its discretion by prohibiting a proper question about a proper area of inquiry. Id. A proper question seeks to discover a juror's views on an issue applicable to the case. Id. An improper question is one that attempts to commit the juror to a particular verdict based on particular facts or one that is so vague or broad as to constitute a global fishing expedition. Id.
Before voir dire, the trial court entered the following order:
The term "beyond a reasonable doubt" is not defined by the court in the charge, and the jury is to give those words the meaning that ordinary jurors believe them to mean in everyday language usage. Counsel for both the State and the Defendant are ordered not to use definitions that will not be included in the court's charge in an attempt to define or to discuss the term "beyond a reasonable doubt[.]" Specifically, counsel shall not refer to the definitions of "preponderance of the evidence" and "clear and convincing evidence" in discussing the burden of proof assigned to the state. References to the civil burdens of proof would be confusing to the jury and would constitute an attempt to define a term that is not to be defined in the charge.Gilliam objected that this order unfairly limited counsel's ability to describe the burden of proof and argued that counsel should be permitted to explain that reasonable doubt is the highest burden and that the clear-and-convincing-evidence burden bridges the gap between the preponderance and reasonable-doubt burdens. Gilliam argued that the trial court's limitation hampered his ability to assist the jury's understanding of the different burdens. The trial court overruled Gilliam's objections.
During voir dire, defense counsel asked the members of the jury panel if they knew the burden of proof in a criminal case. The following exchange subsequently occurred:
Defense Counsel: It's beyond a reasonable doubt, right? That's the standard, right? And that's what we've got to do. That is the highestDefense counsel asked the remaining members of the jury panel if they disagreed with this potential juror's statement, but no one indicated disagreement.
burden in our judicial system. There are some other burdens, but that is the highest burden that we have. All Right?
Now, the judge instructed us that the law does not . . . define, all right, what a reasonable doubt means. That's an individual belief for each person. All right? I'll tell you what that means to me. The State might disagree. But what it means to me is this, is that if I'm going to deprive somebody of their liberty, if I'm going to take away and possibly send them to prison for some period of time, I better be pretty sure about that. As a matter of fact, I don't have to be pretty sure. I'm going to be damn sure. I have got to be able to wake up in the morning and not worry about whether or not I sent an innocent man to prison.
. . . You may think, "Probably did it. I'm not going to lose any sleep over it." If you feel like that, all right. Anybody who feels like that, "It's not that important. It's just a guy's life. It's just his future. It's just the next, possibly, two years with him waking up in the morning behind bars?"
Does anybody feel like, "It's not that big of a deal"?
(NO RESPONSE FROM JURY PANEL)
Defense Counsel: Now, [potential juror], . . . what does beyond a reasonable doubt mean to you?
Potential Juror: To me, personally, it's just that all the facts point to that particular incident. There's no going one way or the other. This is what it is, black and white. There's no guessing.
Defense Counsel: No guessing? You have to be convinced?
Potential Juror: Yes.
In Fuller, the trial court prohibited defense counsel from asking the members of the jury panel if they understand that proof beyond a reasonable doubt is the highest burden, explaining that "clear and convincing evidence is the type of burden that might be used when someone is committed to an involuntary health institution or when someone is trying to terminate someone's parental rights[,]" and explaining that beyond a reasonable doubt is "higher than the preponderance of the evidence, which is just over 50 percent and that's the kind of burden that might be used in a civil lawsuit when someone is suing over money." Id. at 584. During voir dire in Fuller, defense counsel made no attempt to question the jury regarding the reasonable-doubt burden and lesser burdens. Id. Finding error by the trial court, the Court of Criminal Appeals held:
[I]nquiry into a prospective juror's understanding of what proof beyond a reasonable doubt means constitutes a proper question regardless of whether the law specifically defines that term. The jury's ability to apply the correct standard of proof remains an issue in every criminal case. If anything, the fact that current case law has come full circle and once again provides jurors with no definition of reasonable doubt only heightens the incentive for the parties to test the understanding of the veniremembers. And it strikes us as particularly apt to inquire whether a prospective juror understands that proof beyond a reasonable doubt must at least constitute a more onerous standard of proof than preponderance of the evidence and clear and convincing evidence. It is but the flip side of the inquiry that prosecutors engage in routinely during voir dire, designed to test whether prospective jurors will hold the State to the inappropriately onerous standard of proof beyond all doubt. While neither area of inquiry purports to assign a precise meaning to the term "reasonable doubt"—leaving that for the jurors themselves to supply, according to their own common-sense understanding of the words—they do serve to set the lawful parameters of reasonable doubt and thereby foster the selection of jurors who will not impose a standard of proof upon the State that they know for sure to be either too lenient (preponderance or even clear and convincing) or too burdensome (all doubt).Id. at 587 (footnote omitted).
In this case, the trial court did not prohibit Gilliam from inquiring into the panel's understanding of the beyond-a-reasonable-doubt burden of proof. While the trial court prohibited the parties from discussing the definitions of various burdens, the record demonstrates that defense counsel advised the jury that reasonable doubt is the highest burden of proof and questioned the panel about the reasonable-doubt burden and its meaning. This line of questioning allowed Gilliam to test veniremembers' understanding of reasonable doubt and set the lawful parameters of reasonable doubt so as to promote the application of a proper burden of proof by the jury. See id. Under the circumstances of this case, we conclude that the trial court did not abuse its discretion by limiting voir dire. We overrule issue one. Having overruled Gilliam's three issues, we affirm the trial court's judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.