Barker v. State, 09-95-307
Decision Date | 11 December 1996 |
Docket Number | No. 09-95-307,09-95-307 |
Citation | 935 S.W.2d 514 |
Parties | James Albert BARKER, Appellant, v. The STATE of Texas, Appellee. CR. |
Court | Texas Court of Appeals |
Jack McCormick, Conroe, for appellant.
Daniel Rice, District Attorney, Gail Kikawa McConnell, Assistant District Attorney, Conroe, for appellee.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
A jury convicted appellant for having committed the felony offense of Possession of Marijuana [in an amount greater than five pounds but not more than fifty pounds]. Three enhancement allegations in the indictment raised appellant's punishment exposure to that of a habitual offender. TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp.1994). 1 Appellant pleaded true to said enhancement allegations and the jury assessed punishment at confinement in Texas Department of Criminal Justice--Institutional Division for a term of forty-five (45) years. Appellant's three points of error are set out in his brief as follows:
Point of Error One: The evidence was insufficient to "affirmatively link (sic) defendant with the marijuana found in the trunk of defendant's vehicle beyond a reasonable doubt."
Point of Error Two: The Appellant was deprived of his constitutional right to effective assistance of counsel during the guilt/innocence phase of the trial.
Point of Error Three: The trial court erred in denying defense counsel's motion for mistrial after the State's witness alluded to defendant's prior conviction in violation of a motion in limine.
Although the wording of appellant's first point of error seems to indicate a request for a review of the evidence for legal sufficiency under the standard set out in Jackson v. Virginia, 2 an examination of the argument and authorities provided clearly points to the fact that appellant is asking for a review of the evidence for factual sufficiency under the standards announced in Stone v. State, 823 S.W.2d 375 ( ), and recently upheld in Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Since appellant is requesting only a factual sufficiency review, we must presume that the evidence supporting the jury's verdict was legally sufficient, i.e., constitutionally sufficient for the purposes of the Due Process Clause of the Fourteenth Amendment. Stone, 823 S.W.2d at 381.
In factual sufficiency reviews, the appellate court views all the evidence without the prism of "in the light most favorable to the prosecution." Id. As such, the reviewing court is therefore permitted to consider the testimony of defense witnesses and the existence of alternative hypotheses. Id. The reviewing court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.
The State's evidence consisted of the testimony of several law enforcement officers, as well as testimony from a latent fingerprint examiner and a chemist. Appellant was initially observed by Texas Department of Public Safety Troopers John Hart and Ken Brown operating a vehicle on Highway 59 in Montgomery County. Appellant's vehicle was observed traveling from the roadway onto the inside shoulder three times. Appellant was stopped for committing the traffic offense of failure to maintain a single marked lane. Appellant's vehicle exhibited license plates from the State of Missouri. Once stopped, appellant was asked for his driver's license and vehicle registration by Trooper Hart. Appellant responded that he had left his driver's license at a hotel but did produce a social security card. Trooper Hart then added that appellant later stated that he did not stay at a hotel. When questioned about his erratic driving, appellant replied that he had left Missouri the day before traveling to Harlingen, Texas, that he was on his way back to Missouri, and that he was tired. Trooper Hart was questioned further regarding his conversation with appellant as follows:
Q. [The State] Did you ask him why he had gone to Harlingen?
A. [Hart] Yes, sir, I did.
Q. What did he tell you?
A. He stated he had met a friend at a bar on Friday night, the Friday before, and was taking him to Harlingen so he could go to work at a transmission shop.
Q. Okay. What did you ask him after he told you that?
A. I asked him what his friend's name was.
Q. And did he tell you his name?
A. Well, he hesitated and then he said his name was Fred King.
Q. Did you further inquire why he would take somebody from Missouri to Harlingen for a job like that?
A. Yes, sir, I did.
Q. What did he tell you?
A. He started (sic) that he was taking him down, that he had met him that Friday night, he was taking him down for gas money. I asked him why he would take someone all the way from Missouri to Harlingen, Texas just for gas money, someone he had only met Friday night. At that time he responded and said,
Q. After he told you these things, what did you ask him next?
A. After that, well I had asked him how long he knew his friend and when there were so many inconsistencies in his story, I asked him for a consent to search his vehicle.
Q. Why did you ask him to let you look in his car?
A. Well, traveling all the way from Missouri, making a round trip in one day going to Harlingen, Texas I felt the defendant may be transporting narcotics from that area back to Missouri.
Q. What did he say when you asked him if you could look in his car?
A. Without any hesitation at all he said, "Go ahead."
Q. Did it appear to you based on what you observed that he freely and voluntarily allowed you to look in his car?
A. Yes, sir. That's correct.
A search of appellant's vehicle turned up a handrolled marijuana cigarette in the ashtray. The odor of burnt marijuana was also present in the passenger compartment. Appellant was then asked if he had any more marijuana in his vehicle or on his person, or any drugs at all. Appellant initially stated he did not have any more contraband, but when asked again if he had any more marijuana, appellant proceeded to turn over to Trooper Hart a small baggie containing a small amount of marijuana. Appellant continued to insist that the vehicle contained no other contraband. Trooper Hart then requested a drug-sniffing dog be dispatched to the scene. Prior to the dog's arrival, Trooper Hart had checked the vehicle's trunk for contraband and found it to contain a drive shaft, a spare tire, and a container of tools. These items were removed from the trunk by Trooper Hart. When first questioned about the tire, appellant stated that he had purchased it in Harlingen "to use on his pickup truck that he had in Missouri."
Soon afterward, Lt. Craig Lawson of the Precinct 4 Constable's Office of Montgomery County, and his deputy, Cy Gamble, arrived along with the drug dog, Bruce. Apparently, nothing was found inside the vehicle's passenger area or trunk and the dog was placed back in Lt. Lawson's unit. As Deputy Gamble picked up the spare tire, he felt an object inside the tire which made the tire feel heavier than usual. He then notified one of the troopers. As Lt. Lawson and the troopers were in the process of inspecting the spare tire, Deputy Gamble noticed appellant discard a small package that he (appellant) had just removed from his boot. Again, Deputy Gamble called this to the attention to Trooper Brown and Brown retrieved the package from a grassy area on the side of the highway. The package contained marijuana. This action was closely followed by Lt. Lawson cutting the valve stem off the spare tire and observing something packaged in plastic inside the tire. Trooper Hart, Trooper Brown, and Deputy Gamble each testified that they observed a noticeable change in appellant's demeanor after the investigation focused on the spare tire. Prior to that time, appellant was very calm, happy, laughing and joking with the officers. When the spare tire became the center of attention, appellant became noticeably more tense and nervous. Appellant held his dog "really tight" and rubbed the dog "in a much stronger manner."
When the drug dog alerted to the larger package inside the spare tire, appellant was placed under arrest by Trooper Hart and appellant's vehicle was impounded and towed to a truck stop in New Caney. Trooper Hart further described what was found in the spare tire:
Q. [The State] And what did you find when you got there?
A. [Hart] We had the tire broken down and inside the tire there were packages that contained marijuana. They were sealed in plastic and wrapped in duct tape.
Q. When you say they were sealed, can you describe how they were sealed or appeared to be sealed?
A. Yes, sir. They were wrapped real tightly in duct tape and then when you cut into the duct tape, you could see the plastic and then the marijuana inside the plastic. The plastic was heat sealed.
Q. How many heat sealed packages were inside the tire?
A. There were six of them inside the tire.
An examination of the photograph of State's Exhibit 10, the small package of marijuana that Deputy Gamble observed appellant discard, seems to indicate that it was packaged identically to that of the six larger packages of marijuana found in the spare tire. Appellant testified in his own defense completely denying any knowledge of the marijuana inside the spare tire, and explaining his possession of the marijuana in State's Exhibit 10 as having been given to him (appellant) by his cousin after having dropped his cousin off at work in Harlingen. The marijuana in State's Exhibit 10 was apparently for appellant's personal use.
In an attempt to satisfy the dictates of Clewis, appellant's brief properly sets out ten evidentiary factors favorable to his position on appeal. They include the following:
(a) The State's latent print examiner could not match appellant's fingerprints to those...
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