Atkinson v. State

Decision Date12 March 2021
Docket NumberNO. 03-19-00204-CR,03-19-00204-CR
PartiesLucio Roy Atkinson, Appellant v. The State of Texas, Appellee
CourtTexas Court of Appeals

FROM THE 424TH DISTRICT COURT OF BURNET COUNTY

NO. 46805, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Lucio Roy Atkinson guilty of possession with intent to deliver a controlled substance, Clonazepam, in an amount of twenty-eight grams or more but less than 200 grams. See Tex. Health & Safety Code §§ 481.104(a)(2), .114(a), (c). Appellant elected to have the trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge assessed appellant's punishment, enhanced pursuant to the habitual offender provision of the Penal Code, at confinement for eighty years in the Texas Department of Criminal Justice, see Tex. Health & Safety Code § 481.114(c); Tex. Penal Code § 12.42(d).

In five points of error, appellant complains about the trial court's evidentiary rulings relating to the admission of text-message evidence, the court's denial of his requested jury-charge instruction, the court's purported failure to consider the full range of punishment, the violation of his right to a fair trial resulting from the trial court's alleged bias, and the imposition of court-appointed attorney's fees in the court's written judgment. Finding no reversible error, we will modify the written judgment to correct non-reversible error and, as modified, affirm the trial court's judgment of conviction.

BACKGROUND

The jury heard evidence that Jose Colombo, a highway patrol officer with the Department of Public Safety, initiated a traffic stop of the car that appellant was driving after the trooper noticed that the car did not have a front license plate, did not have a registration sticker on the windshield, and had an unreadable crumpled up temporary license plate on the back. On making contact with appellant, the trooper confirmed that appellant's car had no valid registration or up-to-date inspection and discovered that appellant had no valid driver's license and no insurance. In addition, as he spoke with appellant, Trooper Columbo smelled a "pretty strong" odor of green (or unburnt) marijuana coming from the car.

The trooper went to his patrol car to run a computer database check on appellant's driver's license and a criminal history. At that time, Trooper Columbo requested backup, and a deputy with the Burnet County Sheriff's Office arrived on the scene. After completing the database check on appellant, Trooper Columbo returned to appellant and had him exit his car. He asked appellant if he had "anything illegal, any type of contraband" in the car, and appellant admitted that he had marijuana in the car. The trooper handcuffed appellant for officer safety while the officers searched the car. The deputy found a white FedEx envelope rolled up on the backseat floorboard area underneath the driver's seat. The envelope contained "an ounce and a half of unburned marijuana and a large quantity of pills" of "different variations." Appellant was arrested, and the sheriff's deputy transported him to jail.

Trooper Columbo testified that, based on his consultation with pharmaceutical references (both on the roadside and later at the sheriff's office), he determined that seven different substances were in the FedEx envelope: 48.6 grams of Clonazepam, 10.1 grams of Diazepam, 45 grams of steroids, 28.9 grams of Carisoprodol, 28 grams of Trazodone, 28 grams of Alprazolam, and an ounce and a half of marijuana. He explained that within the FedEx envelope, each substance was in its own separate little plastic bag, which, based on the trooper's training and experience, is indicative of selling the drugs. Upon appellant's arrest, his car was towed. Before the tow, the trooper inventoried the contents of the car. He did not find any prescriptions or pill bottles with appellant's name for any of the substances in the car. Based on his belief that appellant was involved in the distribution of the drugs, Trooper Columbo seized appellant's cell phone, suspecting that there might be communications (texts or phone calls) related to appellant's drug distribution on it.

Brandon Middleton, a lieutenant with Texas Department of Public Safety assigned as a special agent to work narcotics, investigated the case. He interviewed appellant at the jail. Appellant admitted that the pills found in the car were his but claimed that they were for personal use. He said that he bought them from various homeless shelters, paying between fifty cents and a dollar for each pill. In his testimony, Lieutenant Middleton expressed that, based on his training and experience, possessing a large quantity of pills would be "indicative of some type of sales" and the intent to deliver. As part of his investigation, Lieutenant Middleton obtained a search warrant for appellant's cell phone.

Marcus Sauer, another special agent with the Texas Department of Public Safety, performed a digital forensic examination of appellant's cell phone. At trial, the State introduced summary reports compiled by Special Agent Sauer that reflected some of the text messagesextracted from appellant's phone. Through an expert witness, a retired agent from the Drug Enforcement Administration, the State presented testimony showing that, in these text-message exchanges, appellant had communicated with others regarding potential drug transactions using "slang" or "code words" to refer to the drugs and particular amounts of drugs in the two weeks leading up to his arrest. The expert opined that the drugs "were possessed with the intent to be delivered, to be sold in smaller quantities" based on the quantity and variety of drugs that appellant possessed, the manner of packaging, and the content of the text communications extracted from appellant's phone.

The substances found in appellant's possession were transported to the Department of Public Safety (DPS) crime lab in Austin for analysis. A DPS chemist examined the various substances submitted, although, per the lab's policy, she performed a confirmation analysis of only one substance.1 She testified that she performed a preliminary visual examination of four of the substances submitted. In performing the "preliminary pharmaceutical observation," she determined the possible presence of Diazepam, Trazodone, Carisoprodol, and Clonazepam. With the substance indicating the possible presence of Clonazepam (the substance in the highest penalty group with the highest possible punishment), the chemist conducted a confirmation analysis—"a gas chromatograph mass spectrometer instrumentation examination"—and concluded that the substance, weighing 48.43 grams, contained Clonazepam.

Appellant was charged by indictment with two counts of possession with intent to deliver a controlled substance. Count One alleged that appellant possessed Clonazepam in anamount of twenty-eight grams or more but less than 200 grams, see Tex. Health & Safety Code §§ 481.104(a)(2), .114 (a), (c); Count Two alleged that he possessed Diazepam in an amount of less than twenty-eight grams, see id. §§ 481.104(a)(2), .114 (a), (b). The case proceeded to trial. During trial, the State abandoned Count Two after the DPS chemist testified that she did not perform a confirmation analysis of the substance indicating the possible presence of Diazepam.

On the remaining count, the trial court submitted two offenses to the jury: the charged offense of possession with intent to deliver a controlled substance in an amount of twenty-eight grams or more but less than 200 grams and the lesser-included offense of possession of a controlled substance in an amount of twenty-eight grams or more but less than 200 grams (possession without intent to deliver). The trial court denied appellant's request for instructions on the lesser-included offenses of possession with intent to deliver a controlled substance in an amount of less than twenty-eight grams and possession of a controlled substance in an amount of less than twenty-eight grams. The jury found appellant guilty of the charged offense of possession with intent to deliver a controlled substance in an amount of twenty-eight grams or more but less than 200 grams.

Appellant chose to have the trial court assess his punishment. Appellant pled true to both enhancement paragraphs of the indictment, which alleged prior sequential felony convictions for drug-possession offenses, and, following a punishment hearing, the trial court assessed appellant's punishment at eighty years' imprisonment. Appellant filed a motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). This appeal followed.

DISCUSSION

In five points of error, appellant complains about the trial court's evidentiary rulings relating to the admission of evidence of the text messages extracted from his cell phone, challenges the denial of his requested jury-charge instruction on "mere possession," asserts that the trial court failed to consider the full range of punishment, argues that the trial court's bias violated his constitutional right to a fair trial and impartial judge, and seeks modification of the trial court's written judgment with respect to court-appointed attorney's fees.

Admission of Text-Message Evidence

During the guilt-innocence phase, the trial court admitted into evidence—first "conditionally" then later "for all purposes"—State's Exhibits #4 through #20, which were summary reports of text-message exchanges that, according to Special Agent Sauer's testimony, he compiled based on text messages that he extracted from appellant's phone during a digital forensic analysis.2 In his first point of error, appellant asserts that the trial court abused its discretion in admitting these exhibits because the text messages had not been properly authenticated, the incoming text messages were hearsay, the admission of the incoming texts violated his right to...

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