Gullatt v. State

• Decision Date: 04 January 2012
• Docket Number: No. 10–09–00244–CR.,10–09–00244–CR.
• Citation: 368 S.W.3d 559
• Parties: Herman P. GULLATT, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

368 S.W.3d 559

Herman P. GULLATT, Jr., Appellant,

v.The STATE of Texas, Appellee.

No. 10–09–00244–CR.

Court of Appeals of Texas, Waco.

Aug. 24, 2011.

Opinion Denying Rehearing Jan. 4, 2012.

R. Lowell Thompson, Corsicana, for Appellant.

Damara H. Watkins, Corsicana, for Appellee.

Before Chief Justice GRAY, Justice SCOGGINS, and Judge ANDERSON. ^*

OPINION

KEN ANDERSON, Judge.

Appellant was convicted by a jury of the felony offense of possession of methamphetamine in an amount of over 1 gram but less than 4 grams with intent to deliver. Tex. Health & Safety Code Ann. § 481.112(a), (c) (West 2010). The State also alleged that appellant had two prior felony convictions. Tex. Penal Code Ann. § 12.42(d) (West 2011). Appellant pled true to these enhancement allegations. Following a punishment hearing, the trial court found the enhancement paragraphs to be true and assessed appellant's punishment at 60 years in prison. Appellant appeals.

In eight issues, appellant complains that the evidence was both legally and factually insufficient, trial counsel rendered ineffective assistance, the drug evidence should have been suppressed, the jury should have been instructed on the legality of the search, the trial court improperly amended the indictment, the jury's verdict improperly convicted appellant of an offense not charged and that he was denied his right to a speedy trial and even to present evidence regarding his speedy trial motion. We overrule these issues and affirm the conviction.

BACKGROUND FACTS

During the early morning hours of February 24, 2008, two Kerens Police Department officers observed a white pickup truck parked just off the highway at the entrance of a long residential driveway. They stopped to investigate. As they approached, they noticed the defendant in the driver's seat. After the defendant rolled down the window, Officer Chamblee observed blood on the inside of the driver's door. He then asked the defendant to exit the vehicle and for some identification. The defendant went through items in both the front and back seats before he finally exited the vehicle and produced some identification. The defendant then got back into his vehicle, rolled up the windows, and locked the doors. Officer Chamblee eventually was able to talk the defendant out of his vehicle where the defendant refused to be patted down and became argumentative. The officer called for backup. At this time, the dispatcher informed Chamblee that appellant had an outstanding arrest warrant for a traffic offense. When the backup officers arrived, appellant was patted down, handcuffed, and placed under arrest for the traffic warrant.

Officer Chamblee inspected the back seat area of his patrol car just as he had done at the beginning of his shift and after he transported an earlier prisoner. On all three occasions, the back seat area was clean and free of contraband. He placed appellant in the back seat of his patrol car, transported him to jail, and turned him over to the jail personnel. Chamblee then inspected the back seat area of his patrol car. He found two baggies which laboratory analysis later determined contained 3.5 grams of methamphetamine. Chamblee seized the baggies, went into the jail, and observed the jailers when they found two baggies of white powder in appellant's mouth. The white powder in those baggies was determined not to be an illegal substance but all four baggies were similar.

At trial, Elmer Tanner and Stan Farmer both testified they were experienced law enforcement officers with the majority of their careers in narcotics. They both gave their expert opinion that based on the quantity of methamphetamine, the number of baggies, and other facts in the case, appellant's possession was with the intent to deliver.

SUFFICIENCY OF THE EVIDENCE

Appellant's first two issues argue that the evidence was both legally and factually insufficient to support the conviction. The “factual insufficiency” issue was premised on the Court of Criminal Appeals' holding in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). Since appellant's brief was filed, Clewis was overruled. Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010). Under Brooks, the dual concepts of “factual insufficiency” and “legal insufficiency” are now a single “sufficiency” standard, as was articulated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, when reviewing the sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319, 99 S.Ct. 2781.

Appellant presents a three-pronged argument about the sufficiency of the evidence. First, there are insufficient affirmative links to actually tie him to the methamphetamine. Second, the overall evidence does not support the “with intent to deliver” element. Finally, the “chain of custody” concerning the seized evidence was so deficient that it has “no legal weight at all.”

Links

The evidence linking appellant to the methamphetamine consisted of Officer Chamblee's testimony that he had searched the back of his patrol car both after he had transported his last prisoner and immediately before placing appellant in the patrol car. After he delivered appellant to the jail, he again searched it and found the methamphetamine under the back seat where appellant had been sitting. Such a patrol car search, before and after a prisoner is transported, is a standard law enforcement practice. Occasionally, as was the case here, contraband is found in the area where the prisoner was seated.

In Garcia v. State, 871 S.W.2d 769 (Tex.App.-Corpus Christi 1994, pet. ref'd), the arresting officer had followed a similar procedure of searching before and after he transported a prisoner to the police station. In the second search, the officer found a syringe, three small baggies of cocaine and some marihuana under the back seat cushion where the prisoner was sitting. The Garcia court concluded that the evidence was sufficient to link the defendant to the drugs. Id. at 771. Other courts, confronted with nearly the same facts and arguments, have likewise concluded that the evidence was sufficient. E.g., Jackson v. State, No. 08–10–00105–CR, 2011 WL 1642617 (Tex.App.-El Paso, April 29, 2011, no pet.) (not designated for publication) (baggie of cocaine found under the seat cushion); Renteria v. State, No. 03–96–00736–CR, 1997 WL 528970 (Tex.App.-Austin, August 28, 1997, no pet.) (not designated for publication) (baggie of methamphetamine found stuffed behind the seat).

The logic of these prior cases applies equally in this case. The jury heard the evidence and could rationally have concluded appellant placed the methamphetamine in the back of Officer Chamblee's patrol car.

Intent to Deliver

The second prong of appellant's sufficiency argument is that the evidence to show “intent to deliver” was insufficient. In addition to the facts of the case, the State called two expert witnesses to testify that in their opinion, appellant possessed the methamphetamine with intent to deliver. The officers had 11 and 6 years, respectively, of narcotics experience in Navarro County. They testified about how it is sold and used specifically in their locale. They talked about the differences they would find in cases where an individual merely possessed the drug and a situation where an individual possessed it with intent to deliver. Based upon the quantity of drugs, the additional baggies in appellant's mouth, the other facts of the case and the expert testimony, a rational trier of fact could conclude that appellant's possession was with the intent to deliver.

Chain of Custody

The third prong of appellant's sufficiency argument is that the “chain of custody” concerning the drug evidence was deficient. Officer Chamblee testified that after he seized the evidence from his patrol car, it field-tested positive for methamphetamine, he personally transported it to the Kerens Police Department, placed it in an envelope, and then placed the envelope in a secure lock box. Chief Leonard Slamcik testified he retrieved the envelope from the lock box and took it to the DPS lab in Waco where it was tested. The DPS chemist testified she received the envelope from Chief Slamcik, tested the suspected drugs, and found it was 3.5 grams of methamphetamine. The testimony regarding the various envelopes in which the drugs were contained is at times confusing. Testimony also contains several references to “the evidence” rather than to the specific exhibit number or numbers. However, no objection was raised to the admission of any of the exhibits or the testimony of the chemist.

Absent evidence of tampering or fraud, problems with the chain of custody do not affect the admissibility of evidence. Druery v. State, 225 S.W.3d 491, 503 (Tex.Crim.App.2007). The record clearly shows that the evidence seized was placed in the secure Kerens Police Department lock box. The evidence was transported to the lab where the chemical analysis showed it was 3.5 grams of methamphetamine. Despite some confusion over the envelopes in court and some imprecise testimony regarding the evidence, a rational trier of fact could have concluded that the item seized from the back seat of Officer Chamblee's patrol car was the same item determined by the DPS lab to be 3.5 grams of methamphetamine.

All three prongs of appellant's attack on the sufficiency of the evidence fail. Appellant's first two issues are overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

Next, appellant complains that he was denied the effective assistance of counsel. Appellant's complaint is based exclusively on counsel's failure to object to two items of evidence: 1) the drug evidence because the chain of custody was not properly established and 2) the baggies found in appellant's...