Opinion
No. 05-10-00669-CR No. 05-10-00670-CR No. 05-10-00671-CR
05-16-2012
SHAUN DAVID OVERTON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed May 16, 2012.
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F09-24769-KX, F09-24771-YX, and F09-24772-YX
OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
A jury found appellant Shaun David Overton guilty of unlawful possession of a firearm, possession with intent to deliver four grams or more but less than 200 grams of methamphetamine, and possession with intent to deliver 200 grams or more but less than 400 grams of gamma hydroxybutyrate ("GHB"), with the two drug offenses enhanced by deadly weapon findings. The trial court assessed appellant's punishment at ten years' confinement for the firearm possession and twenty-five years' confinement for each of the drug possessions. In three issues, appellant contends (1) the trial court erroneously overruled appellant's motion to suppress evidence, (2) the trial court erroneously failed to instruct the jury under article 38.23, and (3) the jury charge allowed for a non- unanimous verdict on the firearm possession charge and the deadly weapon findings. For the reasons discussed below, we affirm the trial court's judgments.
Background
Police officers followed appellant and his passenger when they drove away from a smoke shop. The officers pulled appellant over after he committed a traffic violation. Appellant refused the officers' request for consent to search the vehicle. But both officers smelled the odor of burnt marihuana emanating from the vehicle, and they asked the occupants to exit the vehicle. The officers searched the interior of the vehicle and found a stun gun, a drug ledger, and approximately $6000 in cash. Then the officers searched the trunk of the car, where they found a handgun in a plastic case, a small amount of methamphetamine, and a safe. After obtaining a search warrant, officers opened the safe and found two more handguns, GHB, methamphetamine, and drug paraphernalia. Appellant, who had a previous felony conviction, was charged with unauthorized possession of a firearm and with possession with intent to distribute both the GHB and the methamphetamine. He was convicted on all three charges.
Motion to Suppress
In his first issue, appellant contends the trial court erred in overruling his motion to suppress and admitting evidence discovered in the search of his vehicle. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review. Id. The trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost complete deference to the trial court in determining historical facts, and we review de novo the court's application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
At the hearing on the motion to suppress, Officer J.A. Radny of the Garland Police Department testified that both he and his partner smelled marihuana when they stopped appellant. Appellant also testified at the hearing, but he stated that-although he did use illegal drugs-he did not smoke marihuana. Appellant relies on the fact that the officers' search did not turn up either marihuana or marihuana paraphernalia. This lack of evidence of marihuana, appellant argues, renders the officers' claim to have smelled the drug "entirely implausible." Appellant's argument is based on the credibility of Radny's testimony. But the trial court is the sole judge of the credibility of witnesses. See St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89. In this case, the trial court adjudged Radny to be more credible than appellant. We defer to that implicit finding.
Having found the officer's testimony to be credible that he smelled marihuana emanating from appellant's vehicle, the trial court appropriately found the officer had probable cause to search the vehicle. See Moulden v. State, 576 S.W.2d 817, 820 (Tex. Crim. App. 1978). And, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825 (1982). The trial court did not err in overruling appellant's motion to suppress. We decide appellant's first issue against him.
Article 38.23 Instruction
In his second issue, appellant argues that-even if the trial court did not err in excluding evidence recovered in the search of his vehicle-the court should have instructed the jury that the evidence must be disregarded if it was not obtained legally. The relevant statute provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). The statute applies only "where the legal evidence raises an issue." Id. If the evidence does not raise a factual dispute, there is no requirement that the jury charge include an instruction pursuant to article 38.23. Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005).
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
At trial of this case, the State presented evidence concerning the search of the vehicle and the items found during that search. Appellant, however, did not put on any evidence. Although appellant testified at the hearing on the motion to suppress, he did not testify at trial. Nor did he call any other witnesses. The jury did not hear any evidence controverting the legality of the search of the vehicle. Accordingly, no fact issue was raised, and the trial court was not required to instruct the jury pursuant to article 38.23. See id. We overrule appellant's second issue.
Unanimity of Jury Verdict
In his third issue, appellant contends his conviction for unlawful possession of a firearm, as well as the deadly weapon findings, may be based on non-unanimous jury verdicts. Our constitution requires that the jury be unanimous on the essential elements of the offense of conviction. Jefferson v. State, 189 S.W.3d 305, 310 (Tex. Crim. App. 2006). This means that the jury must unanimously agree that the defendant committed one specific crime. Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). However, the jury is not required to find unanimously that the defendant committed that crime in one specific manner or using the same specific means. Id. In this case, appellant was charged with possession of a firearm; his possession was unlawful because he was a convicted felon. See Tex. Penal Code Ann. § 46.04(a) (West 2011). Appellant does not challenge that he possessed a firearm or that he had been convicted of a felony. Instead, appellant contends that-because three firearms were discovered in the trunk of his vehicle-jurors might have disagreed about which particular weapon he possessed. But the handguns appellant possessed are no more than the means by which he committed the offense. The jury was not required to find unanimously that appellant possessed one specific firearm. See Landrian, 268 S.W.3d at 535.
As to the deadly-weapon findings, appellant does not challenge that he used or exhibited a deadly weapon. Instead, he contends, again, that jurors may have disagreed as to which of the three firearms he used or exhibited. Because the firearms are merely the means by which appellant engaged in the conduct meriting enhancement, the jury was not required to find unanimously that appellant used or exhibited one specific weapon. See id.
We overrule appellant's third issue as well.
Conclusion
We have decided each of appellant's issues against him. Accordingly, we affirm the trial court's three judgments.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100669F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHAUN DAVID OVERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00669-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F09- 24769-KX).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 16, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHAUN DAVID OVERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00670-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F09- 24771-YX).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 16, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHAUN DAVID OVERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00671-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F09- 24772-YX).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 16, 2012.
KERRY P. FITZGERALD
JUSTICE