Lair v. State

• Decision Date: 03 July 2008
• Docket Number: No. 01-07-00414-CR.,01-07-00414-CR.
• Citation: 265 S.W.3d 580
• Parties: Brandon Kirk LAIR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

265 S.W.3d 580

Brandon Kirk LAIR, Appellant, v. The STATE of Texas, Appellee.

No. 01-07-00414-CR.

Court of Appeals of Texas, Houston (1st Dist.).

July 3, 2008.

Brian W. Wice, Houston, for Appellant.

Shirley Cornelius, Asst. Dist. Atty.-Harris County, Houston, for Appellee.

Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.

OPINION

JANE BLAND, Justice.

A jury found appellant, Brandon Kirk Lair, guilty of the offense of possession of a controlled substance, namely methylenedioxy methamphetamine (commonly known as "ecstasy"), weighing between 200 and 400 grams,¹ and, after appellant pleaded "true" to the allegation in one enhancement paragraph that he had been previously convicted of a felony offense, assessed his punishment at confinement for 70 years. In five points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction, the trial court erred in overruling his objections after the State improperly commented on his failure to testify and on matters outside of the record, and he received ineffective assistance of counsel during the punishment phase of trial.

We reverse the portion of the judgment imposing punishment, affirm the judgment in all other respects, and remand the cause for a new punishment hearing.

Facts and Proceedings

On the night of September 21, 2006, Federal Bureau of Investigation Special Agent J. Chiue was conducting surveillance at a strip shopping center near Bellaire Boulevard in Houston, Texas. Chiue worked with Houston Police Department officers on an organized crime task force. Chiue initiated the surveillance after receiving information that the center, which contained a pool hall and bar, was a "hot spot" for criminal activity, including drug transactions. Agent Chiue parked in the center's parking lot in an unmarked car. As Chiue surveyed the area, an Asian male, later identified as Son Hoang, parked next to him in a green Honda. Chiue then noticed a Red Dodge Magnum pull into the parking lot and park. Chiue found this to be unusual, because the center was "mainly frequented by Asians" and the men in the Dodge were African-American. When Hoang saw the Dodge, he got out of the Honda holding a brown paper lunch sack, and began to walk toward the Dodge, which was parked in the center's lot about six car lengths from Chiue. Hoang carried the brown paper sack "wadded up." The Dodge was occupied by a driver, later identified as appellant, and a passenger, later identified as Triston Davis. As Hoang approached, both appellant and Davis exited the Dodge and greeted Hoang. All three men then entered the Dodge, with appellant in the driver's seat, Davis in the passenger's seat, and Hoang in the back seat.

Although Agent Chiue's view into the Dodge was partially blocked, he observed that the three men remained inside the Dodge for about 30 seconds. Hoang then exited the Dodge from the back seat and returned to the Honda, empty-handed. Appellant and Davis then left the parking lot. A short time later, an unidentified Asian male left the pool hall and joined Hoang in the Honda. Chiue then observed Hoang and this unidentified man counting money in the Honda. Chiue radioed Houston Police Sergeant M. Landry, who was working with Chiue, and told him that he suspected that a drug transaction had occurred.

Chiue agreed that the surveillance was random, he had never heard of appellant, Davis, or Hoang, he did not see what went on inside the Dodge, and he did not see anything change hands. Chiue further agreed that he did not see appellant touch or look inside the brown paper sack, hand over any money, act nervous, drive in a dangerous manner, or use a cell phone or beeper. Chiue also stated that he did not know whether the money Hoang counted came from Hoang or the other Asian man who left the pool hall to join him in the Honda. Chiue did not overhear any of the conversation between appellant, Davis, and Hoang. Chiue also admitted that anything could have been delivered in the brown paper sack and that the delivery of the sack, by itself, could be consistent with both innocent and criminal activity. In Agent Chiue's opinion, however, the conduct he observed was consistent with a hand-to-hand drug transaction. Chiue noted that it is common for buyers in hand-to-hand drug transactions to arrive in pairs for safety.

Sergeant Landry testified that officers previously had observed a lot of criminal activity in the center's lot, including drug use and fights. Officers had also observed various people coming into the parking lot, meeting individuals, and then leaving, and, based on Landry's experience, these "short transactions" were drug sales. Landry was parked one block north of the parking lot when he noticed a burgundy car occupied by two black males pull into the center's parking lot.² Landry described this as an "oddity in that area." Landry received radio communication from Chiue about what was happening, and, when the Dodge left the parking lot, Landry and other officers followed it for 10-15 minutes. The Dodge ultimately ran a red light, sped, and changed lanes without using signal devices, and, after a marked patrol car arrived, officers stopped the Dodge.

Officers asked appellant, who was the driver, and Davis, who was the passenger, to exit the car. Appellant complied with the officers' instructions, and they placed him in a patrol car. Davis, who was very nervous and was "not as relaxed" as appellant, did not comply until the officers asked several times. As Davis got out of the car, "his elbow hit the console," which was between the bucket seats, and the console "clicked as if it had not been shut completely." Landry searched the Dodge, opened the console, and found the brown paper sack described by Chiue. Inside the sack, Landry discovered 1000 blue pills in three plastic sandwich bags. Police later confirmed that the pills were ecstasy.

Landry testified that it was his understanding, based on Chiue's radio communications, that Hoang had handed the sack through the Dodge's passenger's window, but did not get into the Dodge. Landry did not know whether appellant or Davis knew Hoang before their transaction. Landry agreed that appellant was not driving dangerously, and Landry did not believe that appellant or Davis knew they were being followed by police officers. Landry further agreed that appellant pulled over when the patrol car's lights went on, followed the officers' instructions, did not appear to be under the influence of any drugs, did not attempt to flee, and promptly complied with the officers' instructions to get out of the car. Landry stated that, compared to Davis, appellant appeared relaxed. Landry did not see appellant make any furtive movements, put his hands or anything in the console, or touch the brown paper sack. Appellant's prints were not found on the plastic bags contained in the sack, although Hoang's prints were found on the bags. Landry agreed that ecstasy does not have a distinctive odor. Appellant did not have any weapons or large amounts of cash.

Landry opined that, as the driver of the Dodge, appellant "would know what was coming into his vehicle." Landry agreed that the Dodge was registered to another person, but maintained that because appellant had care and custody of the car, appellant was the owner at that point in time. Landry stated that the area, time, and place that appellant met with Hoang led him to believe appellant "knew what he was doing."

Legal and Factual Sufficiency

In his first two points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction for the knowing possession of ecstasy. Appellant contends that the evidence is legally insufficient because it lacks sufficient affirmative links between the drugs and appellant—the contraband was not in plain view; there was no odor of contraband in the car because ecstasy has no odor; appellant had no additional contraband or drug paraphernalia on his person; appellant was not under the influence of drugs at the time of his arrest; appellant cooperated with police and did not engage in conduct indicating a consciousness of guilt like furtive gestures, or attempts to flee or conceal or destroy evidence; appellant made no incriminating statements; the car that appellant was driving was not registered to appellant; appellant was not armed; no one saw appellant handle the sack in which the contraband was found; and appellant's fingerprints were not found on the bags containing the contraband.³ Appellant asserts that the evidence is factually insufficient for the same reasons.

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim.App.2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App...