Opinion
NO. 14-16-00669-CR NO. 14-16-00670-CR
04-17-2018
DESHOAUN LEE GREEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause Nos. 15CR1585 and 15CR1586
MEMORANDUM OPINION
Deshoaun Lee Green appeals his separate convictions for delivery of less than one gram of methamphetamine in a drug-free zone and for evading arrest. We conclude that the evidence is legally sufficient to support the convictions, and that his challenges to the sentencing enhancements in his drug conviction were based on errors in the reporter's record that have since been corrected. We accordingly affirm the trial court's judgment.
Trial court cause no. 15-CR-1585, appellate cause no. 14-16-00669-CR.
Trial court cause no. 15-CR-1586, appellate cause no. 14-16-00670-CR.
I. BACKGROUND
A confidential informant told Corporal Allen Bjerke Jr. of the Texas City Police Department that appellant was selling methamphetamine at the Harbour Glen Apartments, where appellant lived with his brother. At Bjerke's request, undercover officer Jessica Johnson contacted appellant on August 28, 2014 and arranged to meet him in the Harbour Glen parking lot, where she gave appellant $50 in exchange for two packages containing a total of approximately 0.7 grams of methamphetamine. The transaction occurred approximately 706 feet from a public playground known as Walker Park. Two officers remained nearby in case of emergency, and Bjerke remained in the police station's parking lot, monitoring the transmission from Johnson's body microphone. After the transaction, Johnson told Bjerke that she needed to stop at a bathroom on the way back to the station. The two officers who had remained nearby during the drug purchase in case of emergency followed Johnson to a convenience store or gas station, where Johnson removed the microphone before going inside, taking the drugs with her. When she returned to the car, she and the other members of the team returned to the police station, where she turned the drugs over to Bjerke. Bjerke weighed and field-tested the drugs before depositing them in an evidence locker for further testing by the Department of Public Safety's crime lab.
Bjerke did not file for an arrest warrant right away in the hope of following the methamphetamine supply chain further. He obtained an arrest warrant in late April 2015, and in June, he learned from a confidential informant that appellant's brother knew that the arrest warrant had been issued. On June 22, 2015, police went to the brothers' apartment but appellant was not there. Bjerke returned to Harbour Glen Apartments the next morning and was getting into his car when he saw appellant. Bjerke called to appellant to stop, and after appellant looked up and saw Bjerke, appellant began running. Bjerke called for other officers to set up a perimeter around the apartment complex, and appellant was apprehended.
Appellant was charged with delivery of less than one gram of methamphetamine in a drug-free zone and for evading arrest. The charges were tried together, and the jury found him guilty of both offenses. After pleading "true" to two prior felony convictions for aggravated robbery and unlawful possession of a firearm by a felon, appellant was sentenced to sixty-one years' confinement for the drug charge and fifteen years' confinement for evading arrest, with the sentences to run concurrently. In four issues, appellant challenges his conviction for each offense.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b), 481.134(d)(1) (West 2017).
See TEX. PENAL CODE ANN. § 38.04 (West 2016).
II. DELIVERY OF METHAMPHETAMINE
Appellant presents three issues in connection with his conviction for delivery of less than one gram of methamphetamine within 1,000 feet of a playground. He argues that (a) the evidence is insufficient to support his conviction because the chain of custody of the drug evidence was not established, (b) the evidence is insufficient to support the jury's finding of "true" to both enhancement paragraphs, and (c) his trial counsel was ineffective in failing to object to the State's material misstatement of fact and mischaracterization of his testimony.
A. Chain of Custody
In his first issue, appellant contends that the evidence is legally insufficient to support his conviction because the State failed to establish the chain of custody. When reviewing the sufficiency of the evidence, we do not re-evaluate the evidence's weight and credibility, for that is the province of the jury. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We instead consider all of the evidence in the light most favorable to the prosecution 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.).
According to appellant, the State did not show the transfer of the seized drug's custody from the Texas City Police Department to the Department of Public Safety's crime lab in Houston, and Johnson allegedly broke the chain of custody by visiting the restroom. Given his presentation of the issue, appellant appears to argue that there is legally insufficient evidence that the substance he knowingly delivered to Johnson is the same substance that was ultimately tested and found to be approximately 0.7 grams of methamphetamine. But "[t]he State need only prove the beginning and end of the chain of custody; it need not show a 'moment-by-moment account of the whereabouts of evidence from the instant it is seized.'" Shaw v. State, 329 S.W.3d 645, 654 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (quoting Reed v. State, 158 S.W.3d 44, 52 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).
The chain of custody begins with Johnson, who testified that she bought two bags of drugs from appellant for $50. There is no evidence that Johnson broke the chain of custody. She testified that after leaving appellant, she stopped at a gas station or convenience store to use the restroom, but kept the drugs with her at all times.
On returning to the police station, Johnson gave the bags of drugs to Bjerke who weighed them, field-tested their contents, placed them in an envelope, signed his name on the outside of the envelope, completed an evidence tag, and placed the envelope in an evidence locker that could be opened only by an identification technician.
Minh Nguyen, a chemist at the Department of Public Safety crime lab in Houston, described the lab's receipt and testing of the drug. Nguyen testified that a lab technician receives the evidence, ensures that it is sealed properly, assigns the evidence a lab number, and then places it in a vault. Nguyen then retrieved the evidence from the vault in the presence of a second chemist and opened it to see that the items inside matched the description. Nguyen weighed the evidence and performed a color test and a spectrum analysis. He prepared a report for the district attorney's office, and other chemists performed technical and administrative reviews of the report. Only if all of the reviewing chemists agree with the original chemist's work is a final report sent to the district attorney's office. All of those requirements were satisfied.
The State met its burden to establish the chain of custody. Johnson testified that she took the bags of drugs with her during her bathroom break, so she retained custody of them from the time she received them from appellant until she turned them over to Bjerke. The drugs admitted into evidence at trial were identified by Bjerke as the drugs he received from Johnson, tagged, and placed in the evidence locker. The same drugs were identified by Nguyen as the drugs retrieved from the vault and tested, and Nguyen's report contains the number from the evidence-tag applied by Bjerke. There accordingly is legally sufficient evidence of the chain of custody from the time that Johnson received the drugs from appellant through the testing of the drugs by Nguyen, and finally, to the introduction of the drugs as evidence at trial. Although appellant states that there is no evidence showing who transferred the drugs from the Texas City Police Department's evidence locker to the crime lab's vault, or when or how the unidentified technician did so, a rational jury can infer that a technician did so given Bjerke's and Nguyen's testimony and their respective identifications of the same physical evidence.
Although not addressed in testimony, Nguyen's lab report states that a 9x12 yellow envelope was submitted in person by Timothy Herd on October 15, 2014 for examination for the presence of controlled substances. The envelope contained the two plastic bags of methamphetamine, together with the evidence tag applied by Bjerke.
Under the same heading, appellant points out that the chain of custody is a predicate to the admission of the drugs and their test results. See Davis v. State, 992 S.W.2d 8, 10-11 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Thus, it appears to be appellant's position that the trial court erred in admitting the evidence of the drugs and the test results. But, as we have seen, the State's evidence established the chain of custody. Moreover, "[a]bsent evidence of tampering, issues regarding the chain of custody bear on the weight, rather than on the admissibility, of evidence." Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010). There is no evidence of tampering with the drugs or with the test results, nor does appellant contend otherwise.
We overrule appellant's first issue.
B. Pleading to Enhancements
In his second issue, appellant contends that the evidence is insufficient to support the jury's finding of "true" to two enhancement paragraphs, and in his third issue, he argues that his trial counsel was ineffective for failing to object when the State's attorney represented in opening statement that appellant had pleaded "true." Both of these issues arise from an error in the reporter's record.
According to the original reporter's record, appellant pleaded "true" to two enhancements to the charge of evading arrest, but pleaded "not true" to the same enhancements to the charge of delivery of a controlled substance. After appellant filed his brief, the State asked us to abate the case and order the trial court to settle a dispute about the record's accuracy. We did so, and after the trial court held an evidentiary hearing, it filed findings of fact and conclusions of law. The trial court found that appellant pleaded "true" to the enhancements in connection with both charges, as evidenced by the trial court's notes, appellant's plea of true to the same enhancements in connection with the evading-arrest charge, the prosecutor's arguments, and the jury charge.
Because the corrected reporter's record now accurately reflects that appellant pleaded "true" to the enhancements, appellant's second and third issues are moot.
III. EVADING ARREST
In his final issue, appellant contends that the evidence is legally insufficient to sustain his conviction for evading arrest. A person commits the offense of evading arrest or detention "if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him." TEX. PENAL CODE ANN. § 38.04. Thus, to convict appellant, the State was required to prove that when the offense occurred, (a) Bjerke was lawfully attempting to arrest appellant, and (b) appellant knew Bjerke was a peace officer attempting to arrest him. See Wright v. State, 855 S.W.2d 110, 112 (Tex. App.—Houston [14th Dist.] 1993, no pet.) (citing Alejos v. State, 555 S.W.2d 444, 448 (Tex. Crim. App. 1977) (op. on reh'g)). Appellant does not dispute that Bjerke was lawfully attempting to arrest him when he fled on foot, but he argues that there is no evidence that appellant knew that Bjerke was a peace officer and no evidence that appellant knew Bjerke was attempting to arrest him. We conclude, however, that Bjerke's testimony and the reasonable inferences drawn from it allowed a rationale jury to find beyond a reasonable doubt that appellant fled knowing that Bjerke was a police officer attempting to arrest him.
Bjerke testified that he received the warrant for appellant's arrest on April 29, 2015, and on June 22, 2015, he received information from a confidential source that appellant's brother knew there was a warrant for appellant's arrest. Bjerke went to the Harbour Glen apartment that appellant shared with his brother at the start of the investigation and where appellant was believed to still be living. The police explained that they were acting on an arrest warrant, and the residents allowed the police to search the apartment, but appellant was not there.
The next morning, Bjerke returned to the same apartment complex and spoke with the apartment manager. Bjerke drove there in his police vehicle, which is a white SUV with white letters. As Bjerke explained at trial, a police vehicle with that coloring is called a "ghost car" because the writing is hard to see when the vehicle is traveling at highway speeds, "[b]ut if it's stationary it's pretty obvious what it is." Bjerke testified that the writing was visible to people outside in the area where he was parked.
After speaking to the complex manager, Bjerke was reentering his vehicle when he noticed appellant looking at the ground and walking away from Bjerke. Appellant was about fifteen feet away. Bjerke testified that he called to appellant "Hey, come here," and appellant turned and looked at Bjerke. Bjerke was not wearing a uniform, but he was wearing his badge on a necklace, and Bjerke testified there was "no way" appellant could have missed seeing the badge. Bjerke also was wearing a gun holster; he was carrying handcuffs; and he was standing next to a police vehicle.
According to Bjerke, appellant looked at him for three seconds and then bolted. Bjerke called for police to set up a perimeter around the apartment complex, and appellant was apprehended.
From Bjerke's testimony, a rational jury could conclude that appellant knew that Bjerke was a police officer attempting to arrest him. Appellant was found at the same location where other residents, including appellant's brother, had been informed that there was a warrant for appellant's arrest, and where police had searched for him the day before in an attempt to arrest him. It is reasonable to suppose that appellant's brother would have told appellant this, and to infer that when appellant was told to stop by the same officer on the same property the next day, appellant knew that the officer was trying to arrest him. See Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007) ("Juries are permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor.").
We overrule appellant's fourth issue.
IV. CONCLUSION
The evidence is legally sufficient to support appellant's convictions on both charges, and because the corrected reporter's record reflects that appellant pleaded "true" to the enhancements in both cause numbers, his remaining issues are moot. Thus, we affirm the trial court's judgment.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish— TEX. R. APP. P. 47.2(b).