Opinion
07-23-00069-CR
08-25-2023
TY CHARLES GRAVES, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish
On Appeal from the 106th District Court Garza County, Texas Trial Court No. 20-3287, Honorable Reed A. Filley, Presiding
Before QUINN, C.J. and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
Brian Quinn, Chief Justice
Ty Charles Graves appeals from his conviction for possessing a controlled substance, namely methamphetamine. He presents two issues. The first implicates the Confrontation Clause and admission of testimony from a chemist. The second concerns the sufficiency of the evidence and whether it linked him to the drugs. We affirm.
Background
Appellant was involved in an altercation at a bar after which he was carried outside and law enforcement was called. After being forcibly removed from his locked and running vehicle located in the bar parking lot, appellant was arrested. The police then searched his vehicle. During the search, they found, among other things, a substance believed to be methamphetamine. The substance was sent to a forensic lab for testing. Testimony admitted at trial revealed the substance to be 4.5 grams of methamphetamine.
Issue Two-Sufficiency of the Evidence
Being the one potentially affording the greatest relief, we address the second issue first. See Chaney v. State, 314 S.W.3d 561, 565 n.6 (Tex. App.-Amarillo 2010, pet. ref'd) (stating that we should address the insufficiency of the evidence claim first since it would afford the greatest relief); see also Soto-Hernandez v. State, No. 07-18-00391-CR, 2020 Tex.App. LEXIS 1094, at *1 (Tex. App.-Amarillo Feb. 6, 2020, no pet.) (mem. op., not designated for publication). Through it, he contends the State failed to prove he intentionally or knowingly possessed the methamphetamine. This is purportedly so because he was not the only person with access to his vehicle. We overrule the issue.
The standard of review is well-established and described in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We apply it here.
To gain a conviction, the State was obligated to establish that appellant “knowingly or intentionally possesse[d]” the alleged controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). Furthermore, proof of possession requires evidence that the accused exercised “actual care, custody, control, or management” over the substance. TEX. HEALTH AND SAFETY CODE ANN. § 481.002(38). This means that the State had to illustrate appellant 1) exercised control, management, or care over the substance and 2) knew that the substance possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Difficulty may arise establishing these elements when others have access to the vehicle. In such situations, circumstantial evidence linking the accused to the contraband plays a heightened role. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Mixon v. State, 481 S.W.3d 318, 323-24 (Tex. App.-Amarillo 2015, pet. ref'd). It suffices if there is enough to illustrate "that the accused's connection with the drug was more than just fortuitous." Mixon, 481 S.W.3d at 323. "In other words, the evidence must affirmatively connect the accused to the contraband in such a manner and to such a degree that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it." Id. The types of circumstantial evidence which may lead to such an inference are many and include: 1) the appellant's presence when a search is conducted; 2) visibility of the contraband; 3) the accused's proximity to the contraband and its accessibility; 4) whether the defendant was under the influence of contraband when arrested; 5) whether the defendant possessed other contraband or narcotics connecting himself to the contraband; 6) whether the defendant made incriminating statements connecting himself to the contraband; 7) whether the defendant made furtive gestures; 8) whether there was a noticeable odor of contraband; 9) the presence of drug paraphernalia; 10) whether the defendant owned or had the right to possess the place where the contraband was found; 11) whether the place where the contraband was found was enclosed; 12) whether the defendant was found with a large amount of cash; 13) whether the defendant engaged in conduct evincing a consciousness of guilt; and 14) whether occupants of the premises gave conflicting statements about relevant matters. Id. at 323-24; see Triplett v. State, 292 S.W.3d 205, 209 (Tex. App.-Amarillo 2009, pet. ref'd) (listing many factors to be considered in analysis). These factors, however, "are simply that-factors which may circumstantially establish the sufficiency of evidence offered to prove a knowing 'possession.'" Mixon, 481 S.W.3d at 324. And, it is not the number of links that is dispositive, rather the logical force of all the evidence. Id. That said, we turn to the record at bar.
It revealed that appellant was "very intoxicated" and acting in an aggressive and belligerent manner while at a bar. Once removed from the bar, he then locked himself in the back seat of his running SUV and had to be forcibly removed by officers. So too did he own and solely occupy the vehicle at that moment. Officers also found marijuana pipes in the door pocket of the driver's side door, a glass mason jar that contained "a marijuana pipe," "a green leafy substance" in an unzipped cooler on the passenger side of the car, and a cigar box within both the cargo area of the vehicle and appellant's reach. The cigar box contained the several baggies of the methamphetamine for which appellant was tried. The logical force of this combined evidence was enough to permit a jury to rationally infer, beyond reasonable doubt, that appellant possessed the methamphetamine with the requisite knowledge of it. See Toney v. State, No. 07-20-00118-CR, 2020 Tex.App. LEXIS 8825, at *5 (Tex. App.-Amarillo Nov. 10, 2020, no pet.) (mem. op., not designated for publication) (finding sole occupancy in the vehicle and the presence and proximity of other paraphernalia and contraband sufficient to link appellant to the contraband for which he was prosecuted).
Issue One-Confrontation Clause
Through his first issue, appellant contends the trial court reversibly erred "by admitting evidence of a forensic chemistry site supervisor that a substance contained
Methamphetamine at 4.5 Grams when the supervisor did not perform the testing or personally observe the testing." The objection, as voiced at trial, was:
And I'm going to object to that, Your Honor, on -- on Crawford grounds, lack of confrontation, as -- as long as -- and as well as some -- you know, not doing it himself, not being able to testify to the policies and procedures and methods followed exactly. He did not have personal observation of the lab tech doing it, things of that nature.
We overrule the issue.
The record discloses that the trial court heard the objection and testimony of the chemist supervisor outside the jury's earshot. And, upon doing so, it said: "[i]n regards to the Crawford objection to the expert testimony of this witness, that objection is overruled." That ruling was followed with: "[i]n regards to -- no evidence was admitted at this time. Any objections can be made to that evidence and rulings will be made at that time." When appellant sought clarification of the ruling the next day, the trial court informed him that 1) "I did not rule on the admissibility of the lab report"; 2) "My ruling was as to your Crawford objection to the testimony of that expert witness [Hall]"; 3) "The lab report has not yet been offered"; and 4) "I have not ruled on that yet." That resulted in appellant responding: "Fair enough. I'll raise my objection at that time then -- ."
Eventually, witness Hall testified. Though the supervising chemist, he did not conduct the analysis resulting in the lab report. Chemist Kacie Tross actually performed the analysis. While testifying, the topic of the lab report emerged. He was asked if he "review[ed] the notes, the data, and the procedure and testing that Kacie Tross used on these particular drugs" and answered "yes." So, too did the witness say that based on his review, he "can come to the same conclusion" as she, that is, "I can come to the same conclusion that is listed on the final report." No one objected to the report being referenced, despite the trial court's having yet to rule on its admissibility. When asked about the drugs, the witness also inquired whether he could "refer to the final report?" The prosecutor said "yes." Again, no one objected to his review of and apparent reliance on the report, though its admissibility had yet to be decided. Further questioning ensued about procedures, protocols, and reviews. Eventually, the prosecutor asked: "And so do you agree with her findings [Tross's] that the samples -- or Exhibits 13, 14, and 16 are methamphetamines and weigh 4 grams?" to which question the witness said: "Yes, I -- I agree with her conclusion." Again, no one objected to the witness's disclosure of the report's content despite the absence of any ruling on its admissibility.
These circumstances reveal that under the guise of discussing his own review, witness Hall actually disclosed to the jury the substance of Tross's own lab report. More importantly, the admissibility of that report and its substance had yet to be determined, according to the trial court. Given his response to the trial court's clarification earlier that day, appellant also knew that no ruling had been made and of the need to object when that topic arose. What we have here is the admission of the report's material contents without any contemporaneous objection from appellant. And, it is fair to say that the admission of the report's material content is tantamount to the admission of that part of the report itself. In effect, a portion of that report was admitted when Hall revealed Tross's findings therein, and that occurred without objection from appellant despite knowing to object about the report's admission. Consequently, the record contains unobjected-to evidence (i.e., the findings of the report) similar to witness Hall's own opinion about the baggies containing methamphetamine weighing 4 grams. The presence of that unobjected-to evidence rendered harmless any error committed by the trial court in overruling the Crawford objection. See e.g., Benavides v. Cushman, Inc., 189 S.W.3d 875, 885 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (involving an objection to the admission of a report when no objection was made to the witness's discussing the report's content and holding that the latter cured any error regarding the report's admission); see also Matthew v. State, No. 02-22-00140-CR, 2023 Tex.App. LEXIS 1904, at *20-21 (Tex. App.-Fort Worth Mar. 23, 2023, no pet.) (mem. op., not designated for publication) (finding forfeiture of complaint regarding admission of report when an accident reconstructionist testified, without objection, about the report's contents, including the speed of the vehicle in the seconds before the crash).
Having overruled each issue, we affirm the judgment of the trial court.