Johnson v. State, No. 10-07-00315-CR (Tex. App. 7/8/2009)

• Decision Date: 08 July 2009
• Docket Number: No. 10-07-00315-CR.,10-07-00315-CR.
• Citation: Johnson v. State, No. 10-07-00315-CR (Tex. App. 7/8/2009), No. 10-07-00315-CR. (Tex. App. Jul 08, 2009)
• Parties: HOWARD JOHNSON, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

HOWARD JOHNSON, Appellant, v.THE STATE OF TEXAS, Appellee.

No. 10-07-00315-CR.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed July 8, 2009.

Do Not Publish.

Appeal from the 85th District Court, Brazos County, Texas, Trial CourtNo. 06-04179-CRF-85.

Affirmed.

Before Chief Justice GRAY, Justice REYNA, and, Justice DAVIS(Chief Justice GRAY concurring with note)^*

MEMORANDUM OPINION

FELIPE REYNA, Justice.

A jury convicted Howard Johnson of possession of a controlled substance and sentenced him to eight years in prison.Johnson's appellate counsel filed an Anders brief presenting one potential issue.SeeAnders v. California,386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493(1967).Johnson also filed a pro se brief and supplemental brief raising more than twenty arguments, which we have divided into nine issues discussed below.The State did not file a brief.We affirm.

STANDARD OF REVIEW

In an Anders case, we must, "after a full examination of all the proceedings, [] decide whether the case is wholly frivolous."Anders,386 U.S. at 744, 87 S. Ct. at 1400;accordStafford v. State,813 S.W.2d 503, 509-11(Tex. Crim. App.1991);Coronado v. State,996 S.W.2d 283, 285(Tex. App.-Waco 1999, order)(per curiam), disp. on merits,25 S.W.3d 806(Tex. App.-Waco2000, pet. ref'd).An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact."McCoy v. Court of Appeals,486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902, 100 L. Ed. 2d 440(1988).Arguments are frivolous if they"cannot conceivably persuade the court."Id. at 426, 108 S. Ct. at 1901.An appeal is not frivolous if based on "arguable grounds."Stafford,813 S.W.2d at 511.

AMENDMENT OF THE INDICTMENT

Enhancement paragraph one alleged that Johnson was convicted of "Man/Del/possession" of a controlled substance.At punishment, the trial court allowed the State to abandon the manufacture/delivery portion of the paragraph as surplusage.Johnson's objections to the amendment were overruled.

An indictment may not be amended over the defendant's objection as to form or substance if the amended indictment charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.TEX. CODE CRIM. PROC. ANN. art. 28.10(c)(Vernon 2006).Abandonment is appropriate when it: (1) abandons one or more alternative means of committing the offense; (2) reduces the charged offense to a lesser included offense; or (3) eliminates surplusage.SeeEastep v. State,941 S.W.2d 130, 135(Tex. Crim. App.1997), overruled on other grounds byRiney v. State,28 S.W.3d 561(Tex. Crim. App.2000);see alsoHardie v. State,79 S.W.3d 625, 632 n.1(Tex. App.-Waco2002, pet. ref'd).

Because enhancement paragraphs are unessential to the indictment's validity, the State could abandon the language as surplusage.SeeJohnson v. State,214 S.W.3d 157, 158-59(Tex. App.-Amarillo 2007, no pet.);see alsoStautzenberger v. State,232 S.W.3d 323, 328(Tex. App.-Houston[14th Dist.]2007, no pet.).Moreover, removal of the language was a mere abandonment of alternative means for proving the prior conviction.SeeAdams v. State,642 S.W.2d 211, 213(Tex. App.-Houston[14th Dist.]1982, no writ).The amendment did not charge Johnson with an additional or different offense or prejudice his substantial rights.SeeTEX. CODE CRIM. PROC. ANN. art. 28.10(c).

LEGAL AND FACTUAL SUFFICIENCY

Johnson contends that the evidence is legally and factually insufficient to support his conviction.We disagree.

Several facts establish the legal and factual sufficiency of the evidence to support Johnson's conviction for possession of cocaine.He was the driver and owner of the vehicle in which the cocaine was found.He was seen making gestures suggesting the disposal of contraband.The cocaine was found in the area where he was seated and was positioned such that it actually had to be placed, not thrown, in that area.Other contraband was found in the vehicle and Johnson was in possession of a large amount of cash.He also lied about having no prior drug convictions.Although another passenger, Cynthia Wallace, purportedly "confessed" to owning the cocaine, Officer Matthew Ford did not observe Wallace making any questionable movements in the vehicle, Wallace was not seated in the area where the cocaine was found, and Officer Ford testified that he did not believe that the cocaine could have been tossed into the confined space where it was found.SeePoindexter v. State,153 S.W.3d 402, 405-06(Tex. Crim. App.2005);see alsoEvans v. State,202 S.W.3d 158, 162 n.12(Tex. Crim. App.2006).

As the sole judge of the weight and credibility of the evidence, the jury bore the burden of accepting or rejecting Johnson's version of the events.SeeLancon v. State,253 S.W.3d 699, 707(Tex. Crim. App.2008).In doing so, it could reasonably conclude that Johnson was in possession of the cocaine recovered from the vehicle.Viewing all the evidence in the light most favorable to the verdict, the jury could reasonably conclude, beyond a reasonable doubt, that Johnson committed the offense of possession of a controlled substance.Curry v. State,30 S.W.3d 394, 406(Tex. Crim. App.2000).The proof of guilt is not so weak nor the conflicting evidence so strong as to render the jury's verdict clearly wrong and manifestly unjust.Watson v. State,204 S.W.3d 404, 414-15(Tex. Crim. App.2006);Johnson v. State,23 S.W.3d 1, 11(Tex. Crim. App.2000).

JURY CHARGE

Johnson contends that he was entitled to a jury instruction on the time/proximity defense because he was seated in the back of the patrol car when Ford discovered the cocaine and Wallace confessed to owning the cocaine.

"A defendant is entitled to an instruction on [a defensive issue] if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense."Ferrel v. State,55 S.W.3d 586, 591(Tex. Crim. App.2001);Kelly v. State,195 S.W.3d 753, 756(Tex. App.-Waco2006, pet. ref'd).However, "a defensive instruction is not required when the issue in question is not a statutorily-enumerated defense and merely serves to negate elements of the State's case."Ortiz v. State,93 S.W.3d 79, 92(Tex. Crim. App.2002), cert. denied,538 U.S. 998, 123 S. Ct. 1901, 155 L. Ed. 2d 824(2003);Moore v. State,143 S.W.3d 305, 315-16(Tex. App.-Waco2004, pet. ref'd).The defense Johnson claims entitlement to does not implicate statutory or affirmative defenses, but merely serves to negate the control, management, or care element of possession.No instruction was required.SeeOrtiz,93 S.W.3d at 92;see alsoMoore,143 S.W.3d at 315-16.

EXPERT TESTIMONY

Johnson argues that the trial court abused its discretion by allowing Officer Billy Couch to testify as an expert because (1) Couch was designated shortly before trial; and (2)the trial court limited Couch's testimony to "purchasing," but Couch testified to "trafficking" when he explained why a person purchasing narcotics has money accessible and when a user carries paraphernalia on his person.Johnson filed a pro se motion for notice of expert witnesses, which trial counsel adopted, but the record does not indicate that disclosure was ever ordered.SeeTamez v. State,205 S.W.3d 32, 39-40(Tex. App.-Tyler 2006, no pet.);see alsoTEX. CODE CRIM. PROC. ANN. art. 39.14(b)(Vernon Supp. 2008).Neither did Johnson object to Couch's testimony.Under these circumstances, the complaint is not preserved for appellate review.SeeTEX. R. APP. P. 33.1;see alsoMartinez v. State,98 S.W.3d 189, 193(Tex. Crim. App.2003);Tamez,205 S.W.3d at 40.

EXCLUSION OF THE CONFESSION

Johnson complains that a sworn confession was excluded.Wallace's notarized letter confession, however, was admitted into evidence and read aloud to the jury during the State's cross-examination of Johnson.This complaint presents nothing for our review.SeeWebb v. State,No. 12-07-00315-CR, 2008 Tex. App. LEXIS 5718, at *5(Tex. App.-TylerJuly 31, 2008, pet. ref'd)(not designated for publication).

COMPULSORY ATTENDANCE OF WITNESSES

Johnson argues that he was denied the right to compulsory attendance of witnesses because the trial court failed to rule on his original and amended pro se motions to subpoena Wallace and another witness.Because Johnson was represented by counsel, the trial court was not required to entertain these motions.SeeRobinson v. State,240 S.W.3d 919, 922(Tex. Crim. App.2007).

DUE PROCESS

Johnson maintains that the investigation by police and the district attorney's office violated due process, as indicated by a police report that the State delayed disclosing in violation of Brady v. Maryland,373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963).This report is not in the record; thus, we cannot determine whether a Brady violation occurred.SeeCarraway v. State,507 S.W.2d 761, 764(Tex. Crim. App.1974).

Johnson further argues that his continued detention violated due process in light of the police report and Wallace's confession.However, several affirmative links connect Johnson to the cocaine and the record indicates that Wallace could not be located; there is no indication in the record that the investigation was unfairly focused on Johnson.SeeHarris v. State,No. 06-05-00031-CR, 2005 Tex. App. LEXIS 7558, at *5(Tex. App.-Texarkana Sept. 14, 2005, no pet.)(not designated for publication).

ILLEGAL SENTENCE

Johnson contends that his sentence is illegal because of two enhancement paragraphs.He argues that paragraph one is improper because it involved an offense that occurred before September 1, 1994.Paragraph one alleged that Johnson was convicted of manufacture/delivery/possession of a controlled substance in an amount of 4-200 grams.Because the State abandoned the...