Simmons v. State

• Decision Date: 27 January 2003
• Docket Number: No. 06-01-00142-CR.,06-01-00142-CR.
• Citation: 100 S.W.3d 484
• Parties: Jenain Joseph SIMMONS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

100 S.W.3d 484

Jenain Joseph SIMMONS, Appellant, v. The STATE of Texas, Appellee.

No. 06-01-00142-CR.

Court of Appeals of Texas, Texarkana.

Submitted July 2, 2002.

Decided January 27, 2003.

Rehearing Overruled February 25, 2003.

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Lew Dunn, Longview, for appellant.

William M. Jennings, Gregg County District Attorney, Andy Porter, Assistant District Attorney, Longview, for appellee.

Before ROSS, CORNELIUS^* and GRANT,^** JJ.

OPINION

Opinion by Justice CORNELIUS(Retired).

Jenain Joseph Simmons appeals from his conviction for possession of a controlled substance with intent to deliver. The jury assessed punishment at seventy-five years' imprisonment and a fine of $150,000.00. On appeal, Simmons brings these issues:

(1) The trial court erred in overruling his motion to suppress evidence of the controlled substance;

(2) The evidence is legally and factually insufficient to support his conviction;

(3) The trial court erred by admitting evidence with a flawed chain of custody;

(4) The State failed to preserve evidence favorable to Simmons;

(5) The trial court committed fundamental error by allowing the prosecution to argue for a conviction based on evidence that was not before the jury;

(6) The trial court committed reversible error by refusing to allow Simmons' trial attorney to question the State's witnesses concerning outstanding warrants for Simmons' arrest, as well as failing to allow Simmons' trial attorney to discuss the outstanding warrants during closing argument; and

(7) The trial court erred in overruling his objection to the court's charge regarding punishment.

On the morning of January 25, 2001, Officer Bob Powell was patrolling Interstate 20 in Gregg County between Longview and Kilgore. Using a stationary radar gun, he checked a vehicle, in which Simmons was a passenger, being driven seventy-six miles per hour in a seventymile-per-hour zone. Further, Powell testified he saw the driver of the same vehicle following too closely behind another vehicle. Powell began to follow the vehicle and observed the passenger was not wearing a seat belt. After following the vehicle for about a mile, Powell initiated the traffic stop. When the driver stopped the car, Simmons got out of the vehicle and ran into the adjacent woods. Powell testified that Simmons was carrying what looked like a large white bag. Subsequently, officers brought a dog in to assist in the search for Simmons and found, buried under a pile of leaves, a white Wendy's restaurant bag that matched the description of the bag Powell saw Simmons carrying. The bag contained 1,000 grams of cocaine. A second Wendy's bag, which contained food, was also found fifty to eighty yards from the first Wendy's bag. Powell testified that the officers did not collect the second Wendy's bag because it did not contain any relevant evidence. Police later arrested Simmons in the same wooded area where they discovered both Wendy's bags, and Powell testified that Simmons was the same person he saw flee from the car. The police crime laboratory identified two of Simmons' fingerprints on the Wendy's bag.

At trial, Powell testified that, on finding the Wendy's bag, he immediately gave it to Trooper Chris Baggett to keep until the search had concluded. Baggett testified that he was wearing gloves when he received the bag, that he locked the bag in his patrol unit, that he in no way altered or changed the contents of the bag while it was in his possession, and that he returned the bag to Powell later that same morning. Powell testified that, after he regained custody of the bag, he placed it in his personal evidence locker. The Wendy's bag contained another plastic bag, which in turn contained three zippered baggies full of cocaine. Powell testified that he removed the Wendy's bag and its contents from his evidence locker and, along with Detective Bobby Gibbons, took it to the Smith County Sheriff's Department to check for fingerprints. Officer Cecil Cox, who was responsible for the fingerprint analysis, testified that Powell delivered a white cardboard box containing a "Wendy's hamburger bag which contained some plastic grocery type bag and some sandwich bags with an off white substance suspected to be cocaine." Cox testified that he and his partner initialed the Wendy's bag and they did not tamper with or alter the cocaine. Cox testified they were unable to obtain fingerprints from the zippered baggies, but they were able to pull two of Simmons' fingerprints from the Wendy's bag. Subsequently, Cox returned the zippered baggies to Powell and retained the Wendy's bag for further testing. Powell testified he then initialed the zippered baggies, placed them in a large brown paper sack, which he also initialed, and delivered them to the Department of Public Safety (DPS) crime laboratory in Tyler for testing to determine if the substance was cocaine. Once the substance was positively identified as cocaine, Powell retrieved the bags and delivered them to the assistant district attorney's office.

In his first point of error, Simmons contends the trial court erred by overruling his motion to suppress based on the officer's lack of reasonable suspicion to effect the traffic stop. The ruling of a trial court on a motion to suppress will not be set aside absent a showing of abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985); Jackson v. Texas, 968 S.W.2d 495, 498 (Tex.App.-Texarkana 1998, pet. ref'd). On a motion to suppress, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses, including the weight to be given their testimony. Attridge v. State, 850 S.W.2d 471, 482 (Tex.Crim.App.1991). Thus, the trial court is free to believe or disbelieve the testimony of any witness. We do not engage in our own factual review. Braggs v. State, 951 S.W.2d 877, 880 (Tex.App.-Texarkana 1997, pet. ref'd). Viewing the evidence in the light most favorable to the trial court's ruling, we consider only whether the trial court improperly applied the law to the facts. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.App.1990). If the court's findings are supported by the record, we are not at liberty to disturb them. Etheridge v. State, 903 S.W.2d 1 (Tex.Crim.App.1994).

An officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, based on articulable facts, that the person detained is, has been, or soon may be, engaged in criminal conduct. Tex. Dep't of Pub. Safety v. Chang, 994 S.W.2d 875 (Tex.App.-Austin 1999, no pet.).

In order to show a valid traffic stop, the State is not required to show that a traffic offense was actually committed, but it must show that the officer reasonably believed a violation was in progress. Valencia v. State, 820 S.W.2d 397, 400 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). We must therefore determine (1) the existence of a law, and (2) the objective reasonableness of the traffic stop.

The Texas Transportation Code makes it a violation for a person to operate a vehicle at a speed greater than seventy miles per hour in the daytime on a highway numbered by this State or the United States outside an urban district. TEX. TRANSP. CODE ANN. § 545.352(b)(2) (Vernon Supp.2003). The Texas Transportation Code also makes it a violation for an individual over the age of fourteen, riding in the front seat of a vehicle, to fail to wear a safety belt. TEX. TRANSP. CODE ANN. § 545.413 (Vernon Supp.2003). Additionally, the Code provides in pertinent part:

An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

TEX. TRANSP. CODE ANN. § 545.062 (Vernon 1999).

Officer Powell testified that, using a stationary radar gun, he checked a vehicle, in which Simmons was a passenger, being driven seventy-six miles per hour in a seventy-mile-per-hour zone. Further, Powell testified that he saw the driver of the same vehicle following too closely behind another vehicle and that he observed Simmons not wearing his seat belt. As a result of the articulated facts observed at the time of the stop, an officer had reasonable suspicion sufficient to initiate a valid traffic stop.

In his next point, Simmons contends the evidence is legally and factually insufficient to support the conviction. When there is a challenge to both the legal and factual sufficiency of the evidence, we first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim.App.1996); Hines v. State, 978 S.W.2d 169, 172 (Tex.App.-Texarkana 1998, no pet.). The proper standard of review to determine legal sufficiency is whether the evidence supports the verdict when viewed in a light most favorable to the verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In other words, if any reasonable trier of fact could find from the evidence the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient. Clewis v. State, 922 S.W.2d at 134.

First, Simmons contends the evidence was legally insufficient to prove he had the intent to deliver the cocaine. In Bryant v. State, 997 S.W.2d 673 (Tex.App.-Texarkana 1999, no pet.), we held that the evidence presented at trial was legally sufficient to support the appellant's conviction of possession of cocaine with intent to deliver. We also held that circumstantial evidence and expert testimony were sufficient to show an intent to deliver. Id.; Smith v. State, 737 S.W.2d 933, 941 (Tex. App.-Dallas 1987, pet. ref'd). Bryant was arrested with a total of 8.42 grams of cocaine, divided into...