Thomas v. State
| Decision Date | 27 August 2015 |
| Docket Number | NO. 01-14-00332-CR,01-14-00332-CR |
| Parties | DERRICK LEE THOMAS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 262nd District Court Harris County, Texas
A jury found appellant, Derrick Lee Thomas, guilty of the felony offense of possession of a controlled substance, namely cocaine, weighing less than onegram.1 After appellant pleaded true to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses, the trial court assessed his punishment at confinement for five years. In four issues, appellant contends that the evidence is legally insufficient to support his conviction and the trial court erred in denying his motion to suppress evidence, admitting into evidence certain exhibits, and giving "the jury an improper, misleading, and confusing instruction which lessened the State's burden of proof."
We modify the trial court's judgment and affirm as modified.
Houston Police Department ("HPD") Officer M. Parker testified that on May 6, 2013, while patrolling the north side of Houston, he saw a car failing to signal as it made a left turn. He initiated a traffic stop of the car, parked his patrol car behind the stopped car, and approached the driver's side of the car. Looking into the car with his flashlight, Parker noted that it contained two occupants, appellant and Ed Galloway. He then asked appellant, who was the driver, for his driver's license.
While speaking with appellant, Officer Parker noticed that he appeared to be "very nervous" and his hands were "shaking." Parker also saw that appellant's right hand was "cuffed," i.e., "[t]he last two fingers [on his right hand] were curledup as if he was holding onto something or concealing something." Based on his previous experience with "people conceal[ing] narcotics," Parker suspected that appellant "was concealing" a "type of narcotic" "in his right hand."
Officer Parker further testified that after he requested appellant's driver's license, appellant "leaned forward to retrieve his wallet" from "[h]is back right pocket." As he did so, "his right hand with the cuffed fingers, went down towards his right side and . . . [his] right fingers opened and . . . he dropped something near his right thigh." Appellant then proceeded to give Parker his driver's license, and Parker "asked him to exit the vehicle" because Parker "believed that [appellant] was sitting on what[] . . . he [had] dropped."
As appellant exited the car, Officer Parker saw "two small white crack rocks" in appellant's car seat. He saw "the crack rocks right . . . when [appellant] got out" of the car. And he explained that he suspected that the "rocks" in appellant's car seat were crack rocks because he "had seen [crack rocks] in the past."
After appellant exited the car, Officer Parker took him to his patrol car and "plac[ed] him in the backseat." Parker did not handcuff appellant, and he was not "under arrest." Parker then returned to appellant's car to "speak to the passenger," Galloway.
When Officer Parker asked Galloway to "step out" of the car, he noticed that Galloway "was mumbling his words as if he was concealing something in his mouth." Based on his previous experience, Parker suspected that Galloway was "concealing narcotics in [his] mouth," and he asked Galloway to open his mouth, which he did "briefly." However, Galloway then quickly "shut his mouth and began to chew." Galloway disobeyed Parker's command to "spit out whatever he had in his mouth," and he began "struggling" with Parker. Parker was able to handcuff Galloway, but he was not able to recover anything from his mouth. He then searched Galloway for weapons and "more narcotics," and he recovered "a screwdriver with what appeared to be numerous amounts of white residue." Parker explained that because he believed that the screwdriver was a "push rod," i.e., "[a] long, slender object that is used to remove the brillo from a crack pipe," he seized it. He then placed Galloway in the backseat of his patrol car with appellant.
Officer Parker returned to appellant's car to retrieve the "two white rocks in the front [driver's] seat" that he had previously seen. He field tested the two rocks, and both tested positive for cocaine. Parker explained that the area in which he had stopped appellant's car was known for "high amounts of narcotic activity," and appellant had "control," "care," and "custody of the area" from where Parker had seized the crack rocks.
In regard to the seized evidence, and in particular the crack rocks, Officer Parker explained that he "tagged" the evidence in "the narcotics operation and control center," approximately "[a]n hour" or an "hour and a half" after he arrested appellant. Subsequently, the crack rocks were "transport[ed]" "to the lab" for testing. On the day of trial, Parker "picked [the evidence] up from the lab" and brought it to court. After the first day of trial and prior to their admission into evidence, Parker took the crack rocks "back to the crime lab and resealed them and turned them back in." The following day, he again retrieved the crack rocks and brought them to the courtroom, where the trial court admitted them into evidence.
Rosaura Rodriguez, a criminalist specialist at the HPD crime laboratory, testified that her job is to "receive and . . . analyze unknown substances for the presence of a controlled substance." She explained that evidence that requires testing is "received from a section [at the lab] called centralized evidence receiving." Prior to testing, Rodriguez "check[s] the envelope . . . [containing] the evidence to make sure there's a seal on [it]." She then takes the evidence to her work area to analyze it.
In this case, Rodriguez received a sealed envelope containing the two crack rocks. Once she opened the sealed envelope, she found "a sealed Ziploc [bag], which contain[ed] another Ziploc [bag], which contain[ed] a beige chunk substance." Rodriguez administered a screening test that indicated that the "beigechunk substance" "could possibly be cocaine." She then administered an "instrumental test," which identified the substance as cocaine, weighing "0.18 grams." After she completed her analysis, Rodriguez "sealed the evidence inside of a Ziploc" bag, placed it "inside of the evidence envelope," and "sealed the evidence envelope to be returned to centralized evidence receiving," "where it was then stored in a vault." She explained that she knew that the substance admitted into evidence at trial was the same substance that she had tested because the envelope that contained the substance had written upon it the "incident number" and her initials.
In his fourth issue, appellant argues that the evidence is legally insufficient to support his conviction because it does not establish that he "exercised actual care, custody, control or management over the two crack rocks of cocaine" Officer Parker discovered in his car.
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trierof fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our duty requires us "to ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
A person commits the offense of possession of a controlled substance if he "knowingly or intentionally possesses" less than one gram of cocaine. TEX. HEALTH & SAFETY CODE ANN. § 481.002(5) (Vernon Supp. 2014), §§ 481.102(3)(D), 481.115(a), (b) (Vernon 2010). To prove that appellant committed this offense, the State had to establish beyond a reasonable doubt that he exercised control, management, or care over the cocaine and knew that it was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (). Although the State need not prove exclusive possession of the cocaine, it must establish that a defendant's connection with the contraband is more than fortuitous. Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). When a defendant is not inexclusive possession of the place where contraband is found, the State must show additional affirmative links between the defendant and the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981); Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). Mere presence in the same place as contraband is insufficient, by itself, to establish actual care, custody, or control. Evans, 202 S.W.3d at 162. But, presence or proximity to contraband, when combined with other direct or circumstantial evidence, may be sufficient to establish possession. Id.
Texas courts have recognized that the following non-exclusive "affirmative links" may be sufficient, either singly or in combination, to establish a person's possession of narcotics: (1) the defendant's presence when a search is conducted; (2) whether the narcotics were in plain view; (3) the defendant's proximity to and the...
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