Thomas v. State

Full title: JAMES THOMAS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 20, 2006

No. 05-05-01379-CR (Tex. App. Jul. 20, 2006)

Opinion

No. 05-05-01379-CR

Opinion Issued July 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Court at Law No. 2, Grayson County, Texas, Trial Court Cause No. 2003-2-1561. Affirmed.

Before Justices WHITTINGTON, BRIDGES, and RICHTER.

OPINION

Opinion By Justice WHITTINGTON.

James Thomas appeals his conviction for possession of two ounces or less of marijuana. After finding appellant guilty, the jury assessed punishment at 180 days' confinement and a $2000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. In two additional points, appellant claims the trial judge erred in admitting certain evidence and in denying appellant's request for a jury instruction. We affirm the trial court's judgment.

Sufficiency of the Evidence

In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction for possession of two ounces or less of marijuana. Under both arguments, appellant claims the evidence shows "only a tenuous connection to the marijuana at best." We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005); Escamilla, 143 S.W.3d at 817. The question under this standard is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Prible, 175 S.W.3d at 731; Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits an offense if he knowingly or intentionally possesses two ounces or less of marijuana. Tex. Health Safety Code Ann. § 481.121(a), (b)(1) (Vernon 2003). To support convictions for unlawful possession of two ounces or less of marijuana, the State must prove the accused (i) exercised actual care, custody, control, or management over the contraband, and (ii) knew the matter was contraband. See Tex. Health Safety Code Ann. §§ 481.002(38), 481.121(a) (b)(1) (Vernon 2003 Supp. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988); Porter v. State, 873 S.W.2d 729, 734 (Tex.App.-Dallas 1994, pet. ref'd). When the accused is not in exclusive control or possession of the place where the contraband is found, he cannot be charged with knowledge and control over the contraband unless there are additional independent facts and circumstances affirmatively linking him to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Porter, 873 S.W.2d at 732; see Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). To determine whether sufficient affirmative links exist, we examine circumstantial factors such as whether (i) appellant was present when the drugs were found, (ii) the drugs were found in an enclosed place, (iii) the drugs were in plain view, (iv) appellant was close in proximity to the contraband, (v) appellant possessed drug paraphernalia, and (vi) there was an odor of drugs at the scene. See Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Porter, 873 S.W.2d at 733; Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd); Swarb v. State, 125 S.W.3d 672, 684 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd); Brown v. State, 878 S.W.2d 695, 700 (Tex.App.-Fort Worth 1994), aff'd, 911 S.W.2d 744 (Tex.Crim.App. 1995). At trial, Officer William May testified that on September 20, 2003, he was working for the Grayson County Sheriff's Department. Around 1:30 in the morning, he was flagged down by people in a parking lot about a two-car accident. Because the accident occurred within the Sherman city limits, Officer May contacted the Sherman Police Department. Although Officer May remained on the scene to assist, Sherman police officer Tom Caver investigated the accident. Officer Caver testified he responded to the report of the traffic accident shortly after the call came in. According to the officer, a red Ford Escort driven by Bobby Methenia had been hit when a black pick-up truck, driven by a Mr. Kirkland, backed into Methenia's car. Officer Caver spoke with Kirkland and determined he was at fault. The officer then spoke with Methenia. During that conversation, the officer detected a "strong odor of burnt marijuana . . . and alcohol" on Methenia who did not have a driver's license or insurance. Officer Caver had begun conducting field sobriety tests on Methenia when the passenger door of the Ford Escort opened and appellant stepped out. Instructing appellant to step away from where he was testing Methenia, the officer completed the test and determined Methenia was not intoxicated to the point where a "driving while intoxicated" charge was warranted. Nevertheless, the officer placed Methenia under arrest for driving under the influence of alcohol by a minor. After placing Methenia in the police car, Officer Caver performed a search of the car. During the search, the officer found, between the seat and the door on the passenger side of the car, a clear baggie containing a green leafy substance known to the officer as marijuana. According to Officer Caver, the baggie was in plain view and contained a "usable amount" of marijuana. No one claimed responsibility for the baggie. The officer arrested appellant and searched his pockets. When he found a lighter but did not find a pack of cigarettes, he asked appellant whether he smoked. Appellant responded that he did but that he had just smoked his last cigarette. According to Officer Caver, this seemed "odd" because appellant did not smell like cigarettes but did smell heavily of burnt marijuana. Officer Caver testified that when he asked Methenia if it was his marijuana, Methenia stated it was not his. Officer Caver testified Methenia did not change his statement regarding ownership of the marijuana. He also stated it was his opinion the marijuana had been used recently because of the strong odor. Officer Caver also testified, without objection, that "people had observed [appellant and Methenia] consuming what they told me was marijuana, a bag of marijuana, in [the] same passenger compartment" and later concealing it. On cross-examination, Officer Caver conceded Methenia was sitting in the front passenger side seat at some point during his investigation and it was sometime thereafter that the officer discovered the baggie of marijuana on the floor. He also conceded that his report stated Methenia smelled of alcohol and marijuana, but it did not note that appellant smelled of marijuana. After the State rested, appellant called Methenia who testified he had "just picked [appellant] up" and that they had been in the car approximately "an hour or two, two hours" when the accident occurred. Methenia admitted he had been smoking marijuana that night and that he possessed marijuana that night but denied that appellant had smoked or possessed marijuana. Methenia identified the baggie containing marijuana as his and admitted that he placed it on the passenger side floor of the car. According to Methenia, when Office Caver asked about the marijuana at the scene, Methenia denied ownership. He claimed he later told the officer it was his. According to Methenia, the officer told him "it was too late." When Officer Caver was later recalled to the stand, he testified Methenia did not admit ownership of the marijuana to him at any time. He stated he would remember if Methenia had confessed to owning the marijuana but conceded it was possible Methenia told another officer or the jailer that the marijuana was his. Viewed in the light most favorable to the judgment, the evidence shows appellant was the passenger in a car involved in an accident. According to the investigating officer, the driver and appellant smelled of burnt marijuana. Officer Caver arrested the driver for driving under the influence of alcohol, searched the car, and found a baggie containing a usable amount of marijuana on the floor of the front passenger side of the car. Appellant had a cigarette lighter but no cigarettes in his pocket. This evidence establishes appellant had been sitting in the front passenger seat of the car, was present when the marijuana was found in plain view on the passenger side of the car, had been close in proximity to where the contraband was found, possessed a lighter, and smelled of burnt marijuana. From these facts, we conclude a rational jury could infer appellant knowingly or intentionally possessed two ounces or less of marijuana. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for possession of two ounces or less of marijuana. We overrule appellant's first point of error. In considering appellant's factual sufficiency review, we view all of the evidence in a neutral light and defer to the jury's determination of the credibility of the witnesses; after doing so, we conclude the State presented sufficient evidence affirmatively linking appellant to the marijuana found on the passenger side floor and that the jury, as factfinder, was rationally justified in finding guilt beyond a reasonable doubt. The evidence was not too weak to support the finding of guilt beyond a reasonable doubt and, although contrary evidence existed, it was not strong enough that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's second point of error.

Admission of Evidence

In his third point of error, appellant contends the trial judge erred in allowing certain evidence. Under this point, appellant claims the trial judge should have excluded Officer Caver's testimony that, in his opinion, appellant intentionally or knowingly possessed marijuana. Although appellant argues we must reverse on this point of error, we cannot agree. Initially, we question whether appellant has preserved this issue for our review. Immediately following Officer Caver's testimony that appellant intentionally and knowingly possessed marijuana, appellant objected on the ground it "calls for speculation." On appeal, appellant is challenging the admissibility of the testimony under Texas Rule of Evidence 701 which provides that a lay witness's testimony "in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." See Tex. R. Evid. 701. The purpose of a proper objection is to inform the trial judge of the basis for the objection and afford the judge an opportunity to rule on it. Kemp v. State, 846 S.W.2d 289, 302 (Tex.Crim.App. 1992); Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977) (op. on reh'g). The objection should also afford opposing counsel the opportunity to address the merits of the objection. Kemp, 846 S.W.2d at 302; Zillender, 557 S.W.2d at 517. In this case, we conclude the objection "calls for speculation" could not have informed the trial judge that appellant was challenging the admissibility of the testimony under evidentiary rule 701, nor did it sufficiently apprise the State of the basis for appellant's objection. Therefore, we conclude appellant has failed to preserve this issue for our review. Even if we address appellant's complaint, we would nevertheless reject his argument. We review a decision admitting or excluding evidence under an abuse of discretion standard; absent an abuse of discretion, we will not reverse a trial judge's decision. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002). If evidence exists supporting the decision to admit evidence, there is no abuse, and we must defer to that decision. Osbourn, 92 S.W.3d at 537; Fairow v. State, 943 S.W.2d 895, 901 (Tex.Crim.App. 1997) Rule 701 of the rules of evidence provides

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Tex. R. Evid. 701. The initial requirement-that an opinion be rationally based on the perceptions of the witness-is composed of two parts. Osbourn, 92 S.W.3d at 538; Fairow, 943 S.W.2d at 898. First, the witness must establish personal knowledge of the events from which his opinion is drawn; second, the opinion drawn must be rationally based on that knowledge. Osbourn, 92 S.W.3d at 538; Fairow, 943 S.W.2d at 898. The personal knowledge of the events which form the basis of the witness's opinion may come directly from the witness's senses or from experience. Fairow, 943 S.W.2d at 898. As a general rule, a witness may not possess personal knowledge of what someone else is thinking; nevertheless, opinions regarding the culpable mental state of a defendant "need not be automatically excluded for want of personal knowledge" if the opinion is an "interpretation of the witness's objective perception of events." Fairow, 943 S.W.2d at 899. Thus, once the proponent of the opinion establishes the witness had personal knowledge of the facts underlying the opinion, he satisfies the perception requirement of rule 701, "even if the opinion concerns culpable mental state." Fairow, 943 S.W.2d at 899; see Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). If the perception requirement is satisfied, the trial judge must still determine if the opinion is rationally based on that perception. Fairow, 943 S.W.2d at 899-900.

An opinion is rationally based on perception if it is an opinion that a reasonable person could draw under the circumstances. An opinion not capable of reasonably being formed from the events underlying the opinion must be excluded.

Fairow, 943 S.W.2d at 899-900. Once the perception requirement of rule 701 is met, the trial judge must then determine whether the opinion will be helpful to the trier of fact to either understand the witness's testimony or to determine a fact in issue. Solomon, 49 S.W.3d at 365. There is no bright line test to be applied to determine whether an opinion is helpful; nevertheless, "general evidentiary considerations of relevance and balancing will invariably assist the trial judge in making his determination." Fairow, 943 S.W.2d at 900. When dealing with terms describing a defendant's mental state-terms that may have legal definitions different from their common usage-a trial judge must "carefully consider such differences when deciding whether an opinion will help the jury or confuse and mislead the jury." Fairow, 943 S.W.2d at 900 (citing Lum v. State, 903 S.W.2d 365, 370 (Tex.App.-Texarkana 1995, pet. ref'd) (holding that a witness's testimony regarding whether the defendant behaved negligently was properly excluded because the witness was "not shown to be an expert on negligence or to know the legal definition or standard of negligence")). A trial judge may allow an opinion when a witness is not able to articulate his perceptions in great detail or if the events are difficult or impossible to describe. Fariow, 943 S.W.2d at 900. "Texas courts before and after promulgation of Rule 701 have approvingly referred to such opinion testimony as a `shorthand rendition' of the facts." Fairow, 943 S.W.2d at 900 (citing Jackson v. State, 822 S.W.2d 18, 29 (Tex.Crim.App. 1990) (allowing a police officer to testify that a defendant gave his confession voluntarily because it "was no more than a short rendition of the facts.") and Wilson v. State, 854 S.W.2d 270, 276 (Tex.App.-Amarillo 1993, pet. ref'd) (allowing officer's testimony regarding what a conversation "boiled down to" as a shorthand rendition of what the conversation was about)); see also Austin v. State, 794 S.W.2d 408, 409 (Tex.App.-Austin 1990, pet. ref'd) (officer who frequently investigated massage parlors and modeling studios was allowed to testify under evidentiary rule 701 that "`Swedish Deep Muscle Rub' in this type of massage parlor is often a catch phrase for prostitution."). In this case, Officer Caver was the investigating and arresting officer. He appeared on the scene shortly after the incident was reported and interviewed both Methenia and appellant. Officer Caver testified that both appellant and Methenia smelled of burnt marijuana. He conducted a search of the vehicle after arresting Methenia for driving under the influence by a minor and found the marijuana on the passenger side floor. When he asked who owned the marijuana, both appellant and Methenia denied ownership. Appellant had a cigarette lighter in his pocket but no cigarettes. And eyewitnesses told the officer they had seen appellant and Methenia "consuming" marijuana. Thus, the trial judge could have concluded the State satisfied the perception requirement of rule 701 because Officer Caver had personal knowledge of the events that formed the basis of and resulted in his opinion that appellant intentionally or knowingly possessed marijuana. Furthermore, the trial judge could have concluded the officer's opinion was rationally based on perception because it was "an opinion that a reasonable person could draw under the circumstances." See Fairow, 943 S.W.2d at 899-900. Next, the trial judge would consider whether the opinion would assist the jury in understanding the officer's testimony or to determine a fact in issue. The issue to be determined was whether the marijuana belonged to appellant or Methenia. Neither individual admitted to ownership at the scene; thus, the officer was obliged to arrest both. Officer Caver's statement was a shorthand rendition of the facts as he perceived them at the time of the arrests. Therefore, the trial judge could have properly found the opinion was helpful to a clear understanding of his testimony or the determination of a fact in issue. See Solomon. 49 S.W.3d at 364. Because evidence in the record supports admission of the testimony under rule 701, we cannot conclude the trial judge abused her discretion in overruling appellant's objection to the officer's opinion. See Osbourn, 92 S.W.3d at 539. Finally, even if we were to assume the trial judge erred in allowing the officer's opinion, we would nevertheless conclude its admission was harmless. Texas Rule of Appellate Procedure 44.2(b) instructs that we must disregard a nonconstitutional error "that does not affect substantial rights." See Tex.R.App.P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if this Court, "after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." See Solomon. 49 S.W.3d at 365. In this case, as was the case in Solomon, the jury had already heard all of the facts upon which Officer Caver's opinion was based. The officer did not purport to be a legal expert or otherwise to be in a position to possess information not already related to the jury. Thus, we conclude his opinion added little, if any, weight to his testimony. Under the circumstances, we have a fair assurance that the evidence in question did not influence or had only a slight effect on the jury. See Solomon, 49 S.W.3d at 365. We overrule appellant's third point of error.

Jury Instruction

In his final point of error, appellant claims the trial judge erred in denying his requested jury instruction. Under this point, he argues the State's attempt to introduce appellant's purportedly prior convictions caused him "some harm" and we must therefore vacate his sentence and remand for new punishment hearing. We disagree. In addressing a complaint of jury charge error, we first review the record for error. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994). If we find error, we then review the record for harm. Ngo, 175 S.W.3d at 743. During the punishment phase of appellant's trial, the prosecutor attempted to introduce, by way of a sponsoring witness, documents purporting to be "certified copies of judgment[s] and sentences in prior cases" for appellant. Appellant objected on the ground that the State had failed to prove that appellant and the individual in the prior cases were, in fact, the same individual. During cross-examination of the sponsoring witness, the Clerk of the County Court at Law No. 2, the Clerk conceded she could not identify appellant as the same individual named in the prior cases nor could she testify they were "one in the same person." The prosecutor then informed the trial judge he needed to find a fingerprint expert. Appellant objected on the ground that such a witness had not been disclosed in the State's witness list. The trial judge sustained the objection, and the evidence was not admitted. At the conclusion of the punishment phase, appellant requested the following instruction:

[T]he [S]tate attempted to offer certain documents into evidence that were not admitted by the Court. You are instructed that you cannot consider these documents, nor speculate to what they might have contained whatsoever in deliberating your punishment verdict.

The judge denied the request. Although appellant assigns this ruling as error, we cannot agree. The jury charge given in this case instructed the jury as follows:

In arriving at your punishment verdict, you will consider all of the evidence presented to you in the full trial of the case, together with the law that is stated in this charge. You will not consider, discuss, or speculate as to anything that is not shown or supported by the evidence in this case.

* * *

The prosecution has introduced evidence of crimes or bad acts other than the one charged against the defendant in the information filed in this case . . . You cannot consider the evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes or bad acts, if any were committed.

Thus, the court's charge properly informed the jury that it could not consider anything not supported by the evidence and that it could not consider evidence of any prior crimes or bad acts unless it found beyond a reasonable doubt that appellant committed the prior crimes. In contrast, appellant's requested instruction would have constituted a comment on the weight of the evidence. Because the court's charge properly instructed the jury, we conclude the trial judge did not err in denying appellant's requested instruction. As the trial judge did not err, we need not address appellant's argument that he was harmed. We overrule appellant's final point of error. We affirm the trial court's judgment.