Jennings v. State

• Decision Date: 31 March 2003
• Docket Number: No. 04-01-00658-CR.,04-01-00658-CR.
• Citation: 107 S.W.3d 85
• Parties: Jacob Lee JENNINGS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

107 S.W.3d 85

Jacob Lee JENNINGS, Appellant, v. The STATE of Texas, Appellee.

No. 04-01-00658-CR.

Court of Appeals of Texas, San Antonio.

March 31, 2003.

Melaina L. Hood, Attorney At Law, San Antonio, for Appellant.

Mary Beth Welsh, Asst. Criminal Dist. Atty., San Antonio, for Appellee.

Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, and SARAH B. DUNCAN, Justice.

Opinion by SARAH B. DUNCAN, Justice.

A jury found Jacob Jennings guilty of possession of a switchblade knife, a prohibited weapon. He was sentenced to one year in jail, probated for two years, and fined $300.00. We hold the trial court abused its discretion in denying Jennings' motion for a new trial because the uncontroverted evidence establishes juror misconduct. Accordingly, we reverse the trial court's judgment and remand the cause for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

While on patrol, Officer Scott Sharp saw a male running across a highway median towards a business district that had a high rate of crime. Suspicious, Sharp circled around and attempted to locate the man. Upon turning into the business district, Sharp noticed a black Nissan pickup truck sitting in a parking lot and observed a male, later identified as Jacob Jennings, sitting in the driver's seat with the door open and a woman, Jennings's wife Tanya, sitting on the rear of the truck. After briefly observing the couple, Sharp pulled his vehicle behind the truck and called for a license plate check. As Jennings approached the patrol vehicle, Sharp, concerned for his safety, told Jennings to stop and wait. Sharp then approached Jennings and questioned him about the situation. Jennings identified himself, explained that his truck had just broken down, and he was waiting for a tow truck. Shortly thereafter, at Sharp's request, Officer Morales arrived at the scene to assist.

The license plate check revealed outstanding traffic warrants for the vehicle and for an individual matching Jennings' description. Therefore, Jennings was handcuffed while the warrants were verified. Upon verification, Jennings was placed under arrest for the outstanding traffic warrants. Due to Jennings's arrest and the condition of the vehicle, Sharp decided to impound Jennings's truck. Sharp and Morales conducted an inventory search of the vehicle and discovered a switchblade knife under the driver's seat. Sharp notified Jennings of his discovery, gave Jennings his Miranda warnings and questioned him about the knife. Jennings showed no surprise, but denied it was his. Jennings was charged with possession of a prohibited weapon.

After the jury found Jennings guilty of possessing the switchblade knife, he was sentenced to one year in jail, probated for two years, and fined $300.00. Jennings moved for a new trial, contending, among other things, that "the verdict of the jury was decided in another manner than by fair expression of opinion by the jurors." Jennings supported his claim of jury misconduct with the affidavit of the jury fore-person, Rebecca Burrow. Later, at the hearing on Jennings' motion for new trial, Burrow's affidavit was introduced into evidence without objection from the State.¹ In her affidavit, Burrow describes the process used by the jury to decide whether to return a guilty or not guilty verdict:

4. At first we took a vote and it was three to three; then another vote and it was four to two not guilty.

5. We were deadlocked at this point, we discussed and discussed it until Mary said lets do a list of facts that make him guilty and facts that made him not guilty and then whichever side has the most facts is how we will vote. Then we all agreed that whichever list was the longest got our vote. Meaning, if the guilty list had twelve things and the not guilty had four then we would all vote guilty. Which is what happened; the guilty list had twice as much [sic] things listed than the not guilty list so we all voted guilty. If the longest list would have been the not guilty list we would have voted not guilty because that's what we agreed to.

Burrow also described how the jury's agreement changed her vote:

8. Before we all agreed to be bound by the longest list my vote was not guilty. We discussed the same things that were put on the lists during our discussions before doing the lists when the vote was still deadlocked. However, doing the lists changed the vote to guilty. I changed my vote from not guilty to guilty because of the greater quantity on the guilty list and our agreement to do so eventhough [sic] I still had reasonable doubt. The only thing I was basing my guilty verdict on was that they (the police officers) found the knife in his truck. I kept telling them the boy did not know the knife was there'; nor did I believe he had possession of the knife. In fact it was my opinion then and is now that [Jennings] did not know the knife was there and therefore could not knowingly or intentionally possess the knife.

Although the State did not introduce any controverting evidence, the trial court denied Jennings' motion.

SUFFICIENCY OF THE EVIDENCE

Jennings argues that the evidence is legally insufficient to establish the required affirmative link between himself and the contraband. We disagree.

Scope and Standard of Review

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). The evidence is legally insufficient only if a rational jury could not have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wesbrook, 29 S.W.3d at 111. The jury, as the trier of fact, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999). Because it is the province of the jury to determine the facts, any inconsistencies in the testimony should be resolved in favor of the jury's verdict. Id.; Johnson v. State, 815 S.W.2d 707, 712 (Tex.Crim.App.1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988)).

Applicable Law

The State was required to prove that Jennings intentionally and knowingly possessed a prohibited weapon and exercised actual care, custody and control over the contraband. TEX. PEN.CODE ANN. § 1.07(a)(39) (Vernon 2003); see Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) (holding that sufficiency of the evidence is measured against a hypothetically correct jury charge). If the defendant does not have exclusive control over the premises where the contraband is found, the prosecution must show additional affirmative links between the defendant and the contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App.1988); Ramirez v. State, 897 S.W.2d 428, 436 (Tex. App.-El Paso 1995, no pet.). These affirmative links may be established by direct or circumstantial evidence that raises a reasonable inference of the defendant's knowledge and control of the contraband; the defendant's connection with the contraband must be more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.App.1995); Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986). The required affirmative links customarily emerge from a non-exclusive list of factors and the logical force they have in combination with one another. Corpus v. State, 30 S.W.3d 35, 38 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In the context of a prohibited weapon, this non-exclusive list of factors includes whether: (1) the weapon was in a place owned by the accused; (2) the weapon was in a vehicle driven by the accused; (3) the weapon was conveniently accessible to the accused; (4) the weapon was in plain view; (5) the weapon was found in an enclosed space; (6) the weapon was found on the same side of the vehicle as the accused; (7) the conduct of the accused indicated a consciousness of guilt; (8) the accused had a special relationship to the weapon; and (9) affirmative statements connect the accused to the weapon. See Davis v. State, 93 S.W.3d 664, 668 (Tex. App.-Texarkana 2002, pet. filed); Corpus v. State, 30 S.W.3d at 38.

Discussion

Viewing the evidence in the light most favorable to the verdict, the following evidence links Jennings to the switchblade. Jennings was sitting in the drivers' seat when Officer Sharp arrived at the scene, and is the only person Officer Sharp ever saw in the passenger compartment of the truck. Sharp later found the switchblade under the driver's seat. The switchblade was the only thing under the driver's seat and was easily accessible to the driver. The knife was lying sideways on a hump under the seat. This led Officer Sharp to believe it had been placed there recently, because if the truck were moving and then braked, the switchblade would have rolled forward to where the driver's feet were. Due to the amount of trash and junk in the back seat of the truck, it would have been difficult for anyone in the back seat to place the knife where it was found. Although there was no direct evidence Jennings owned the truck, his wife repeatedly referred to it as "Jacob's truck" in her testimony and testified it was the truck he used. Also, when Officer Sharp ran the license plates on the truck, the information returned to him was that there were three outstanding traffic warrants on Jennings associated with a black Nissan pickup truck with that license plate number. Jennings showed no surprise when Officer Sharp told him he had found the switchblade, and didn't ask to see it, which suggests he was aware of its presence in the truck. Finally, Officer Sharp testified that when he first made his presence known, Jennings acted suspiciously. He testified that most people remain in their vehicles unless the officer tells them otherwise. In...