Opinion
NO. 09-11-00556-CR
09-05-2012
TAWANNA DENISE HENRY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Polk County, Texas
Trial Cause No. 2010-0174
MEMORANDUM OPINION
This is an appeal from a conviction for possession of marijuana. Appellant, Tawanna Denise Henry, argues that the trial court erred in denying her motion for new trial and in excluding certain evidence. Henry further argues that the evidence is insufficient to support her conviction for possession of marijuana. We affirm the judgment of the trial court.
On February 28, 2010, Henry was riding in the passenger seat of her rental car, which was being driven by Tyron Robinson-Wade ("Robinson"). Henry's cousin was in the back passenger seat. State Trooper Ramey Bass pulled the car over for speeding. When initially questioned about his identity, Robinson gave Bass false information. Thereafter, the trooper made Robinson step out of the car. Because he smelled a strong odor of marijuana coming from the car, the trooper called for back-up assistance to conduct a probable cause search of the car. Deputy William Jerry arrived on the scene and spoke with Henry. Henry told the deputy it was her rental car and gave him consent to search the car. When asked about a purse in the car, Henry told the deputy it was her purse and gave him consent to search it. The deputy found a baggie of marijuana and a marijuana cigarette or "blunt" in Henry's purse. Henry denied that the marijuana belonged to her and stated that she did not know it was in her purse. According to the deputy, Henry seemed surprised that marijuana was found in her purse. At trial, the deputy acknowledged that Henry's actions were consistent with someone who did not know marijuana was in her purse. A baggie of cocaine was also found inside some luggage in the trunk of the car. Robinson admitted to the officers the cocaine was his.
Henry testified the marijuana found in her purse was Robinson's. According to Henry, she fell asleep during the drive and Robinson woke her up and told her they were being pulled over. Henry testified that she believed that Robinson had plenty of time to put the marijuana in her purse before he woke her up. Henry also stated that Robinson repeatedly told the officers that the marijuana found in her purse was his. During redirect, trial counsel attempted to introduce a copy of a letter that Robinson purportedly sent Henry while he was incarcerated. However, the trial court sustained the State's hearsay objection and the letter was excluded from evidence.
The trial court found Henry guilty of possession of marijuana and sentenced her to thirty days confinement, probated over a period of six months, and a $300 fine. This appeal followed. In issue one, Henry argues the trial court abused its discretion in denying her motion for new trial "when there was evidence that was not admitted at trial because of admissibility issues that would tend to show that [Henry] was not guilty of the charges." In issue two, Henry argues that the trial court erred in excluding the letter Robinson purportedly wrote her while he was incarcerated. In issue three, Henry challenges the sufficiency of the evidence to support her conviction.
In her motion for new trial, Henry urged the court to grant a new trial in the interests of justice alleging there was a sworn statement by another individual confessing to the crime, that such individual was not available for trial, and his statement was not admitted. A trial court abuses its discretion in denying a motion for new trial when it "'[acts] without reference to any guiding rules or principles[.]'" State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007) (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005)). Henry is correct that a trial judge has the authority to grant a new trial in the interest of justice. See id. at 906. "That discretion is not, however, unbounded or unfettered. A trial judge has discretion to grant or deny a motion for new trial 'in the interest of justice,' but 'justice' means in accordance with the law." Id. at 907. "A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law." Id.
The legal grounds for which a defendant must be granted a new trial are set forth in Texas Rule of Appellate Procedure 21.3 and are not at issue here. See Tex. R. App. P. 21.3.
Henry argues in issue one that the trial court abused its discretion in denying her motion for new trial because "[t]he State had in its possession a letter tendered to the State by [Henry] that was a notarized affidavit of [Robinson] . . . stating that the marijuana found in [Henry's] purse was in fact his and that he had put [it] there to attempt to avoid its discovery upon search of his person." Robinson was not called to testify at trial. Henry appears to argue in issue two that the trial court's grant of the State's motion for continuance prevented Henry from procuring Robinson's testimony because by the time the case was called to trial, Robinson had been released from State Jail. According to Henry, at the time of trial, Robinson's whereabouts were unknown. However, Henry did not seek a continuance from the trial court based on the absence of a material witness. See Tex. Code Crim. Proc. Ann. art. 29.06 (West 2006) (setting forth the requirements for a motion for continuance based on the absence of a material witness); see also Tucker v. State, 109 S.W.3d 517, 519-20 (Tex. App.—Tyler 1999, pet. ref'd) (recognizing that a trial judge is required to grant a motion for continuance when a witness is missing, provided the statutory requirements are met and there is no issue regarding lack of diligence).
The letter, purportedly written by Robinson, in which he allegedly takes responsibility for the marijuana, is not in the record before us. Henry failed to make an offer of proof at trial regarding the excluded letter and its contents. "In order to preserve error regarding a trial court's decision to exclude evidence, the complaining party must comply with Rule of Evidence 103 by making an 'offer of proof which sets forth the substance of the proffered evidence." Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009); see Tex. R. Evid. 103. After the trial court sustained the State's hearsay objection, trial counsel did not assert that the statement may have been admissible as an exception to the hearsay rule pursuant to Rule 803(24) or otherwise attempt to preserve such objection for the record. See Tex. R. Evid. 803(24). Rule 803(24) provides that a statement made against a declarant's interest is not excluded by the hearsay rule under certain circumstances. Id. In criminal cases, the statement "is not admissible unless circumstances clearly indicate the trustworthiness of the statement." Id. "The burden lies with the party seeking to admit the statement, and the test is not an easy one; the evidence of corroborating circumstances must clearly indicate trustworthiness." Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994). However, without the contents of the letter and offer of proof, we are unable to review this issue. See Tex. R. App. P. 33.1. For these reasons, we conclude the trial court did not abuse its discretion in overruling Henry's motion for new trial. We overrule issues one and two.
In issue three, Henry argues that "[t]here was insufficient factual basis for the trier of fact to conclude that the marijuana found in the purse belonged to [Henry]." In this issue, Henry appears to raise a factual sufficiency challenge to the evidence. However, in Brooks v. State, the Court of Criminal Appeals held that the "Jackson v. Virginia legal-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 must give full deference to the fact-finder's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13; see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
To prove possession of a controlled substance, the State must prove, either directly or through circumstantial evidence, that the defendant exercised actual care, custody, control, or management over the contraband and that the defendant knew the matter possessed was contraband. See Tex. Health & Safety Code Ann. § 481.002(38) (West 2010); Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). The State does not have to prove the defendant had exclusive possession of the contraband; joint possession is sufficient to sustain a conviction. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). When a defendant is not shown to have had exclusive possession of the place where the contraband was found, the State must offer additional independent facts and circumstances affirmatively linking him to the contraband. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006); Poindexter, 153 S.W.3d at 406. The evidence must show the defendant's connection to the contraband was more than merely fortuitous. Evans, 202 S.W.3d at 161-62.
Henry argues that there were additional people in the car who had access to her purse, and her purse was left in the car after she was removed from the car to be searched; therefore, according to Henry, there is insufficient evidence to support her conviction for unlawful possession of the marijuana found in her purse. We disagree. The evidence established that there were three individuals in the car. Henry was sitting in the front passenger seat. The purse was located on the floorboard of the front passenger seat. When asked if the purse belonged to her, Henry stated that it did. It was undisputed at trial that the purse belonged to Henry. Officer Bass testified that Robinson admitted that the cocaine found in the trunk belonged to him. Officer Bass did not recall Robinson saying anything about the marijuana. Officer Jerry also testified that Henry said the purse on the floorboard of the front passenger seat belonged to her. Officer Jerry testified that he did not speak with Robinson, but he spoke with the rear passenger who stated that he was not aware that there was contraband in the vehicle. Finally, Deputy Billy Duke, who also responded to the scene, testified that he did not recall Robinson claiming responsibility for the marijuana. Viewing the evidence in the light most favorable to the trial court's ruling, we find the evidence sufficient to support Henry's conviction for possession of marijuana. We overrule issue three.
Having overruled all Henry's appellate issues, we affirm the judgment of the trial court.
AFFIRMED.
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CHARLES KREGER
Justice
Do not publish Before Gaultney, Kreger, and Horton, JJ.