Hall v. State

• Decision Date: 26 July 2002
• Docket Number: No. 03-01-00088-CR.,03-01-00088-CR.
• Citation: 86 S.W.3d 235
• Parties: Christopher HALL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

86 S.W.3d 235

Christopher HALL, Appellant, v. The STATE of Texas, Appellee.

No. 03-01-00088-CR.

Court of Appeals of Texas, Austin.

July 26, 2002.

Rehearing Overruled September 12, 2002.

COPYRIGHT MATERIAL OMITTED

Randol L. Stout, San Angelo, for Appellant.

Allison Williams, Assistant District Attorney-391st District, San Angelo, for Appellee.

Before Chief Justice ABOUSSIE, Justices, B.A. SMITH and PURYEAR.

DAVID PURYEAR, Justice.

A jury found appellant guilty of possessing more than five pounds but less than fifty pounds of marihuana, a third degree felony offense under the Texas Controlled Substances Act. See Tex. Health & Safety Code Ann. § 481.121 (West Supp.2002).¹ The court assessed punishment at seven years' imprisonment. Appellant contends that he was denied effective assistance of counsel during the proceedings leading to his conviction. Specifically, appellant argues that counsel's failure to move for a directed verdict fell below an objective standard of reasonableness and there is a reasonable probability that but for this error appellant would not have been convicted or the conviction would have been reversed on appeal. Because our examination of the record discloses unassigned fundamental error, we reverse and render judgment of acquittal.

FACTUAL AND PROCEDURAL BACKGROUND

Officers of the San Angelo Police Department narcotics division obtained information from a confidential informant, prompting "an investigation of appellant and a business associate, Simon Riley.² Based on this information, officers expected that appellant would be driving a lead vehicle, or "heat vehicle," and Riley would follow in another vehicle, the "load vehicle" on December 17, 1999. According to the testimony of several officers, a "heat vehicle" distracts law enforcement with speeding and erratic driving, allowing the "load vehicle" carrying contraband to slip by unnoticed. Checking the information, the officers learned that appellant had rented a green Chevrolet Tahoe and Riley a black Dodge Durango from Enterprise Rent-A-Car in San Angelo on December 16, 1999. The rentals occurred several hours apart.

On December 17, officers waited along Highway 67 outside San Angelo. When they saw the green Tahoe, two officers in an unmarked car pulled in behind it to check the license plate. The officers testified that appellant then began speeding and driving erratically. Other officers assisting with the investigation located the black Durango traveling a few minutes behind the Tahoe. Both vehicles were stopped.

According to Officer Hernandez, appellant's Tahoe smelled of burnt marihuana which led the officers to search the vehicle. In it they found a receipt from Enterprise Rent-A-Car, a receipt from a Days Inn Motel in El Paso, and a business card for appellant's and Riley's auto detailing business. They did not find any illegal drugs. Appellant was not tested for intoxication. Officer Howard explained that he did not perform a field drug test because appellant stated he had smoked marihuana that morning, thus any detectable effects would have dissipated by the time of his 1:12 p.m. arrest.

Meanwhile, officers searching Riley's vehicle discovered approximately forty pounds of marihuana concealed in its spare tire. As a result, appellant was charged with third degree felony possession of marihuana.

A trial was held on November 29, 2000, in which a jury found appellant guilty. The court then heard punishment evidence and subsequently sentenced appellant to seven years' imprisonment. On January 9, 2001, the court appointed a new attorney to assist appellant with his appeal. Appellant's new attorney filed a motion for new trial, citing insufficient evidence to sustain the conviction. The trial court denied the motion. Appellant then brought this appeal.

In his sole issue on appeal, appellant claims that he did not receive effective assistance of counsel at trial. Appellant lists eighteen examples of deficient performance by trial counsel³ and requests that his conviction be reversed and the cause remanded for a new trial.

DISCUSSION

Inexplicably, appellant does not complain of the sufficiency of the evidence on appeal, except in the context of ineffective assistance of counsel. However, our review of the record, prompted by appellant's complaint regarding the motion for a directed verdict, compels us in the interest of justice to address the dispositive issue of legal sufficiency of the evidence.

The discretion of the courts of appeals to address unassigned error in criminal cases is well-established in Texas law. See Carter v. State, 656 S.W.2d 468, 468-69 (Tex.Crim.App.1983) (recognizing that broad scope of review granted appellate courts includes power to revise case upon law and facts in record where "the life or liberty of a citizen" is at stake); see also Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim.App.1990); Pierce v. State, 780 S.W.2d 277, 280 (Tex.Crim.App.1989); Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim.App.1986); Frost v. State, 25 S.W.3d 295, 399 (Tex.App.-Austin 2000, no pet.); Rodriguez v. State, 939 S.W.2d 211, 219 (Tex.App.-Austin 1997, no pet.). "Once an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute." Rezac, 782 S.W.2d at 870.

Legal Sufficiency

It is beyond dispute that fundamental considerations of due process protect an accused against conviction except on proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). When reviewing for legal sufficiency, the appellate court views the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex.Crim.App.1994). The appellate court considers all of the evidence before the jury, whether proper or improper, and makes an assessment from the jury's perspective. Howard v. State, 972 S.W.2d 121, 124 (Tex.App.-Austin 1998, no pet.). Any inconsistencies in the evidence should be resolved in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The jury is entitled to resolve any conflicts in the evidence, to evaluate the credibility of the witnesses, and to determine the weight to be given any particular evidence. See id. This standard of review is the same for both direct and circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim.App.1992), disavowed on other grounds, Trevino v. State, 991 S.W.2d 849 (Tex. Crim.App.1999).

In reviewing this record, we must determine whether any rational trier of fact could have found beyond a reasonable doubt that appellant knowingly or intentionally possessed the marihuana found in Riley's car. To obtain a conviction for possession of a controlled substance, the State must prove first, "that the defendant exercised actual care, custody, control, or management over the contraband and second, that the defendant knew the matter possessed to be contraband." Whitworth v. State, 808 S.W.2d 566, 568 (Tex.App.-Austin 1991, pet. ref'd); Dixon v. State, 918 S.W.2d 678, 680 (Tex. App.-Beaumont 1996, no pet.); Trejo v. State, 766 S.W.2d 381, 383-84 (Tex.App.-Austin 1989, no pet.). The evidence presented "must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995) (emphasis added). Because appellant was not in exclusive control or possession of the place where the marihuana was found, the State must present facts and circumstances that affirmatively link the accused to the contraband in such a manner that it can be concluded that he had knowledge of the contraband, as well as control over it. Whitworth, 808 S.W.2d at 569. While affirmative links may be proven by circumstantial evidence, the proof must generate more than a strong suspicion or even a probability. Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The affirmative links analysis provides a logically sound method of applying the Jackson standard of reasonable doubt. Martinets v. State, 884 S.W.2d 185, 188 (Tex.App.-Austin 1994, no pet.).

Case law has identified numerous factors having logical force in establishing the two essential elements of knowledge and control. Id.; Dixon, 918 S.W.2d at 680-81; Whitworth, 808 S.W.2d at 569. Seldom will any single factor have logical force sufficient to sustain a conviction based on constructive possession. Trejo, 766 S.W.2d at 385. Instead, the required link generally emerges from the logical force that several factors may have in combination. Id.

Factors tending to establish an affirmative link include whether the contraband was in plain view; whether the accused was the owner or driver of the car in which the contraband was found; whether the contraband was conveniently accessible to the accused; whether the strong odor of marihuana was present; whether paraphernalia for using the contraband was found on or in view of the accused; whether the physical condition of the accused indicated recent consumption of the contraband found in the vehicle; and whether traces of the contraband were found on the accused. Dixon, 918 S.W.2d at 681. In addition, courts consider whether conduct by the accused indicated consciousness of guilt; whether the accused had a special connection to the contraband; whether affirmative statements connect the accused to the contraband; whether the appellant's fingerprints were on the contraband's container; and whether the accused attempted to flee. Id.; Kyte v. State, 944 S.W.2d 29, 31-32 (Tex. App.-Texarkana 1997, no pet.); ...