Brown v. State

• Decision Date: 29 June 1994
• Docket Number: 2-92-380-CR,Nos. 2-92-379-C,s. 2-92-379-C
• Parties: Steven Raymond BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 695

878 S.W.2d 695

Steven Raymond BROWN, Appellant, v. The STATE of Texas, Appellee.

Nos. 2-92-379-CR, 2-92-380-CR.

Court of Appeals of Texas,

Fort Worth.

June 29, 1994.

Discretionary Review Granted Sept. 21, 1994.

Robert McCrarey, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Betty Marshall, Charles M. Mallin, Assistants Chief Appellate Section, and Steven W. Conder, Asst. Crim. Dist. Atty., Fort Worth, for appellee.

Before WEAVER, HICKS and FARRAR, JJ.

OPINION

WEAVER, Justice.

Appellant, Steven Raymond Brown, was convicted by a jury of two offenses: possession of marijuana of more than five pounds but less than fifty pounds, and aggravated assault on a peace officer. The jury assessed punishment, enhanced by one prior felony conviction, at forty years' confinement for the possession conviction, and forty-five years' confinement for the assault conviction. Appellant challenges these convictions through two points of error. In point one he alleges the trial court erred in admitting evidence of an extraneous offense, and in point two he claims there was insufficient evidence he possessed a usable quantity of marijuana greater than five pounds, but less than fifty pounds. We affirm.

On the evening of July 21, 1991, Naleen Weeraman was working as a waiter and bartender at a cafe located in a Holiday Inn in North Fort Worth. While Weeraman was standing at the hostess stand, he observed someone drive into a friend's parked car. When Weeraman went outside to investigate, the driver of the car, later identified as appellant, took a gun out from his side and pointed it at Weeraman. Weeraman told appellant to "Take it easy," and began backing off. When Weeraman got back inside the cafe, he had the front desk call the police.

Upon receiving a call that an individual at the Holiday Inn had pointed a gun at another individual, Officers G.C. Barrera and Raymond Rivera, who were traveling in separate patrol units, went to the hotel. When the officers arrived on the scene they observed a vehicle matching the description given to them by the dispatcher attempting to leave the parking lot. Barrera pulled in behind the vehicle, turned on his emergency lights, and exited his unit positioning himself between his door and his vehicle. Rivera parked in front of appellant's vehicle and got out of his patrol unit. Rivera also assumed a defensive position behind the door of his patrol unit. Both officers had their service revolvers drawn and pointed at appellant.

Once out of his patrol car, Barrera ordered appellant to place his hands where the officer could see them. Appellant did not reply to Barrera's command, nor did he comply and place his hands where the officer could see them. When Barrera repeated his order, appellant raised his right hand and pointed a "shiny object" at Barrera for approximately two to five seconds. The object appeared to both officers to be a gun. When Barrera ordered appellant to drop the gun and place his hands where they could be seen, appellant lowered his hands and the gun to where Barrera could not see them. Appellant then again raised the gun and this time he positioned it to his own head. Finally, after the third or fourth command from Barrera, appellant dropped the gun and raised his empty hands to where Barrera could see them.

Once appellant raised his empty hands, Barrera approached the car, grabbed appellant's left hand, and pulled him from the car. Barrera then placed appellant under arrest. While frisking appellant, Barrera discovered a plastic baggy containing numerous rounds of .22 caliber ammunition and several pocket knives. Additionally, a .22 caliber semi-automatic pistol was taken from appellant's vehicle.

After appellant was arrested, Barrera placed him in his patrol unit. By this time other officers had arrived on the scene. One of these officers guarded appellant while Rivera and Barrera inventoried appellant's vehicle. During the inventory, the officers found two large plastic bags inside the trunk. Inside each plastic bag, wrapped in yet another plastic bag, was a burlap sack. Each burlap sack contained a green leafy substance which appeared to be marijuana.

John Harris, a criminalist with the Fort Worth Police Department, conducted a chemical analysis on the green leafy substance found in both bags and determined that it was, in fact, marijuana. Harris also weighed the plant material contained in each bag. The net weight of the plant material in one bag was 17.57 pounds, and the net weight of the plant material in the other bag was 17.63 pounds. Of this, Harris determined that the first bag contained 4.7 pounds of usable marijuana, and the second bag contained 3.4 pounds of usable marijuana.

In his first point of error, appellant contends the trial court erred in admitting evidence of an extraneous offense over his objection. Specifically, appellant complains of the admission of evidence that, prior to the incident with officers Barrera and Rivera, appellant pointed a gun at Naleen Weeraman. According to appellant, this amounted to admission of evidence of another aggravated assault in violation of rule 404(b) of the Texas Rules of Criminal Evidence. ¹ We disagree.

The Court of Criminal Appeals has distinguished between two types of background evidence when addressing extraneous offense evidence: (1) evidence of other offenses connected with the primary offense, referred to as "same transaction contextual evidence;" and (2) general background evidence, referred to as "background contextual evidence." Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993). Same transaction evidence is admissible as an exception under rule 404(b) where such evidence is necessary to the jury's understanding of the charged offense. Id. As the court stated in Rogers:

Same transaction contextual evidence is deemed as a so-called exception to the propensity rule where "several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others." (citation omitted) The reason for its admissibility "is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose." (citation omitted) Necessity, then, seems to be one of the reasons behind admitting evidence of the accused's acts, words and conduct at the time of the commission of the offense. (citation omitted)

Id. (emphasis added) (quoting Mayes v. State, 816 S.W.2d 79, 86-87 n. 4 (Tex.Crim.App.1991)). Additionally, the decision of whether same transaction evidence is admissible is left to the trial court and its decision will not be disturbed on appeal absent an abuse of discretion. See Blackwell v. State, 818 S.W.2d 134, 137 (Tex.App.--Waco 1991, pet. ref'd).

Appellant argues the contested evidence in the present case cannot be considered same transaction evidence because, according to appellant, the events on the day in question involve two distinct transactions: first, the transaction that occurred when appellant pointed his gun at Weeraman and Weeraman then escaped and had someone call the police; and second, the transaction which occurred when Officers Barrera and Rivera approached appellant and appellant then pointed his gun at Officer Barrera. However, appellant ignores the reality of what actually occurred in the present case. After appellant pointed his gun at Weeraman, Weeraman went inside and had the front desk immediately call the police. Officers Barrera and Rivera arrived in less than five minutes.

Under the facts of the present case, the evidence that appellant pointed the gun at Weeraman was necessary for the jury's understanding of the charged offenses. In detailing the facts and circumstances of the charged offenses, it would have been impracticable to avoid describing why Officers Barrera and Rivera pulled into the parking lot, boxed appellant in, and exited their patrol units taking up a defensive position with their guns drawn and pointed at appellant. Because the contested evidence was necessary for the jury to properly understand the charged offenses, the trial court did not abuse its discretion in admitting the evidence. Cf. Henry v. State, 828 S.W.2d 312, 313-15 (Tex.App.--Fort Worth 1992, pet. ref'd) (evidence that earlier in the day defendant had shot and wounded a sheriff's deputy in neighboring county was admissible in defendant's attempted capital murder trial for attempting to shoot a sheriff's deputy from another county later in the day); Winkfield v. State, 792 S.W.2d 727, 731 (Tex.App.--Corpus Christi 1990, pet. ref'd) (evidence of defendant's robbery of one victim was admissible in defendant's trial for robbery of second victim where the two robberies occurred moments apart in the same location); Amaya v. State, 759 S.W.2d 737, 738-39 (Tex.App.--El Paso 1988, pet. ref'd) (evidence that defendant had attempted to steal groceries from aggravated assault victim's younger brother a short time before the occurrence of the assault was admissible as part of one continuous transaction). Appellant's first point of error is overruled.

In his second point of error, appellant contends the evidence was insufficient to establish he possessed a usable quantity of marijuana greater than five pounds, but less than fifty pounds. Specifically, appellant argues that because the marijuana was located in the trunk, and because there is no evidence that appellant did anything more than operate the car, the evidence is not sufficient to "affirmatively link" him to the marijuana.

Texas courts have consistently held that mere presence at the scene is not sufficient to establish unlawful possession of a controlled substance. See, e.g., McGoldrick v. State, 682 S.W.2d 573, 578-79 (Tex.Crim.App.1985). Rather, under the "affirmative link" concept of...