Tems v. State, No. 06-04-00164-CR (TX 8/30/2005)

Decision Date30 August 2005
Docket NumberNo. 06-04-00164-CR,06-04-00164-CR
PartiesJAMES CALVIN TEMS, Appellant, v. THE STATE OF TEXAS, Appellee.
CourtTexas Supreme Court

On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 31687-B.



Memorandum Opinion by Chief Justice MORRISS.

James Calvin Tems' initial minor traffic offense escalated into a high speed chase before police officer Terry Roach finally apprehended him and found in Tems' vehicle methamphetamine, drug paraphernalia, and an unrestrained eighteen-month-old girl.1 Tems appeals from his resulting three jury convictions2 for possessing a controlled substance with intent to deliver, evading detention in a vehicle, and endangering a child. This appeal concerns the conviction for the possession of a controlled substance with the intent to deliver. Tems raises identical issues in each appeal and has briefed all three appeals together.3 In response to Tems' points of error, we hold that, in each case, (1) the evidence is legally sufficient, (2) the evidence is factually sufficient, (3) the trial court was within its discretion in refusing to allow Tems' trial counsel to withdraw, and (4) the trial court did not improperly give "advice to State's counsel during the punishment phase." We affirm the judgment of the trial court.

(1) The Evidence Is Legally Sufficient

In his first and second points of error, Tems argues the evidence is legally insufficient to support the jury's verdict. According to Tems, the State failed to prove at least one material element of each of the three offenses. Tems contends the State failed to prove that Tems had intent to deliver the methamphetamine, that Tems fled from the officer, that Roach's attempt to detain Tems was lawful, and that the child was placed in imminent danger.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This requires the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

While on patrol in White Oak, Roach observed in his rearview mirror a vehicle turn right onto George Richey Road from Whatley Road without signaling and then accelerate to a high rate of speed. Roach turned around and pursued the vehicle. At the intersection of George Richey Road and White Oak Road, the vehicle disregarded a four-way stop. Roach testified that he drove "over 95 miles an hour trying to catch this truck." At the intersection of "1845" and George Richey Road, Roach caught up with the vehicle and activated his overhead lights and siren. Roach testified the chase slowed down at this point, but Tems still did not stop. Tems drove down Tenneryville Road, turned left on Dundee Road, and then pulled into a parking space in front of a duplex.

Roach exited his vehicle and placed Tems under arrest. At this point, Roach noticed an eighteen-month-old girl standing up in the truck seat, looking out the back window. The girl was not restrained in any way. While checking on the child, Roach observed a blue bag on the seat between the driver's seat and the child. The bag was open and had syringes on top. Tems originally stated he needed syringes because he was diabetic but, after being unable to answer several questions about diabetes, Tems admitted he was not diabetic. On examination of the bag, Roach discovered small Ziploc bags, a manual scale, an electric scale, a spoon, eleven grams of methamphetamine,4 lighter fluid, and lithium batteries. Pridgen testified that lighter fluid and lithium batteries can be used in the manufacture of methamphetamine.

Possession With Intent To Deliver. Tems argues the State failed to introduce sufficient evidence that he possessed the drugs with the intent to deliver. It is unlawful to possess any quantity of methamphetamine. Tex. Health & Safety Code Ann. § 481.102(6) (Vernon Supp. 2004-2005), § 481.115 (Vernon 2003). Possession of more than four grams with the intent to deliver is a second-degree felony. Tex. Health & Safety Code Ann. § 481.115(d). Intent to deliver may be proved by circumstantial evidence. Roberts v. State, 963 S.W.2d 894, 898 (Tex. App.-Texarkana 1998, no pet.). Expert testimony by experienced law enforcement officers may be used to show intent to deliver. Bryant v. State, 997 S.W.2d 673, 675 (Tex. App.-Texarkana 1999, no pet.).

Eleven grams of methamphetamine were discovered in a bag on the front seat of Tems' vehicle. Tems was the only occupant of the vehicle other than an eighteen-month-old child. Although Tems denied ownership of the methamphetamine, Tems admitted the blue bag, syringes, Ziploc bags, spoon, and one of the scales belonged to him. Proof that the accused knew he or she was in possession of the controlled substance may be inferred from the circumstances of the case. See Castellano v. State, 810 S.W.2d 800, 807 (Tex. App.-Austin 1991, no pet.). In addition, the bag contained two scales, a spoon, and numerous small plastic bags commonly used in selling drugs. Roach testified a spoon is often used to transfer drugs to a scale in order to weigh them. A rational juror could have concluded beyond a reasonable doubt that Tems possessed the methamphetamine with the intent to deliver.

Evading Detention. A person commits the offense of evading detention in a vehicle if he or she intentionally flees from a person he or she knows is a peace officer attempting lawfully to arrest or detain him or her. See Tex. Pen. Code Ann. § 38.04(a) (Vernon 2003). Tems challenges the sufficiency of the evidence based on two elements of the offense: whether Tems was fleeing and whether the officer was lawfully attempting to detain Tems. According to Tems, the State introduced insufficient evidence to prove he fled from Roach. Further, Tems argues the State failed to show that Roach's actions in attempting to detain him were lawful.

The State introduced sufficient evidence that Tems fled from the police. Roach testified he followed Tems for two to three miles with his overhead lights and siren on. Further, the videotape of the pursuit shows Roach, with his lights on, following Tems for a good distance before Tems stopped. A rational juror could have concluded beyond a reasonable doubt that Tems fled from police.

Lawful Police Action. According to Tems, the evidence is legally insufficient that Roach's actions were lawful, because the State failed to prove Tems was traveling on public roads. See Tex. Transp. Code Ann. § 542.001 (Vernon 1999). To show Roach was attempting to lawfully detain Tems, Roach must have had, at a minimum, a reasonable suspicion that Tems had committed a crime. Terry v. Ohio, 392 U.S. 1, 25 (1968). Roach testified Tems failed to signal for a turn, disregarded a stop sign, and traveled at a high rate of speed. A law enforcement officer may lawfully stop and detain a person for a traffic violation. Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.-Texarkana 2000, pet. ref'd); see Tex. Transp. Code Ann. §§ 544.010, 545.104, 545.351 (Vernon 1999), § 545.352 (Vernon Supp. 2004-2005).

Tems argues:

In the not too far distant past a former President of the United States used to cruise the roads of his ranch on the Pedernales at far more than what might otherwise have been the "legal" limit, sometimes with an open can of beer perched on the dashboard, and, while his behavior may not have been exemplary in terms of the prudent operation of a motor vehicle, he never violated a single traffic law because he was on private property.

While our former President was clearly on private property when cruising his ranch, and a person could lawfully drive with an open alcoholic beverage on the public roads of Texas thirty years ago, the jury in this case could reasonably conclude Tems was not driving on private property. The videotape of the pursuit was introduced into evidence, and the jury could reasonably conclude from the videotape that Tems was traveling on public roads. The videotape shows roads which appear to be public roads, and Texas road signs are visible alongside the roads. In addition, the name of at least one of the roads indicates the roads were public.

Endangering a Child. A person commits the offense of endangering a child if he or she "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." See Tex. Pen. Code Ann. § 22.041(c) (Vernon 2003). The State must prove each and every element alleged beyond a reasonable doubt as guaranteed by the Due Course of Law provision of the Texas Constitution. See Tex. Const. art I, § 19; Wilson v. State, 536 S.W.2d 375, 377 (Tex. Crim. App. 1976).

Tems argues that a mere speculative possibility of danger is insufficient to constitute imminent danger. Some courts have interpreted imminent danger to mean "'ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). Imminent refers to "a present, not a future threat of bodily injury or death." Garcia v. State, 819 S.W.2d 634, 636 (Tex. App.-Corpus Christi 1991, no pet.). Tems argues the State failed to prove the truck lurched, bounced, or swerved in a manner which would place the child in imminent danger. Tems acknowledges that the failure to restrain a child in...

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