Amaziah Thompkins v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00526-CR NO. 02-12-00527-CR

AMAZIAH THOMPKINS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

MEMORANDUM OPINION1

I. INTRODUCTION

A jury found Appellant Amaziah Thompkins guilty of resisting arrest and

possession of marijuana under two ounces. The trial court assessed his

punishment at 200 days’ confinement for the resisting arrest conviction and 90

1 See Tex. R. App. P. 47.4. days’ confinement for the marijuana possession conviction, ordering that the

sentences run concurrently. In two issues, Thompkins argues that the evidence

is insufficient to support his convictions. We will modify the judgment in cause

number 1211018 (our case number 02-12-00527-CR) to accurately reflect the

sentence assessed and will affirm that judgment as modified.2 We will also affirm

the judgment in cause number 1211017 (our case number 02-12-00526-CR).

II. FACTUAL AND PROCEDURAL BACKGROUND

Arlington Police Officers Blain Smith and Michael Wheatley were patrolling

a high-crime area of Arlington at 10:40 one night when they saw a blue truck

drive out of a convenience store parking lot. The rear license plate of the truck

was not illuminated. The officers stopped the truck for driving with a defective

license plate light, a traffic violation. See Tex. Transp. Code Ann. § 547.322

(West 2011).

The officers approached the truck and spoke to the driver and sole

occupant, Thompkins. Thompkins was ―extremely agitated‖ and appeared

nervous. He wanted to know why the officers had stopped him. He raised his

2 The judgment for the marijuana possession conviction incorrectly states the sentence as 200 days’ confinement, contrary to the trial court’s oral pronouncement of sentence in the record. Consequently, we modify the judgment to reflect the correct sentence of 90 days’ confinement, the one that the trial court orally pronounced. See Taylor v. State, 131 S.W.3d 497, 500, 502 (Tex. Crim. App. 2004) (―When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls.‖); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.— Dallas 1991, pet. ref’d) (noting that appellate courts may sua sponte correct incorrect judgments).

2 voice when speaking and flailed his arms in an agitated manner. Officer

Wheatley asked Thompkins why he appeared so nervous and whether he had

anything in the truck that the officers needed to know about. Thompkins said that

he thought he had two outstanding warrants and that he ―can’t go to jail.‖ Officer

Wheatley returned to the patrol vehicle to confirm the warrants. While Officer

Smith was standing by the driver’s door of Thompkins’s truck, Thompkins

reached over to the passenger side of his truck toward a metallic object, which

was later determined to be a pair of scissors. Officer Smith told Thompkins to

show his hands and had him exit the truck.

Officer Smith told Thompkins to face his truck so that the officer could pat

him down for weapons. Thompkins flexed his arm as Officer Smith was holding

it. Officer Smith pulled one of Thompkins’s arms behind his back and noticed

that his hand was curled in a fist. Officer Smith testified that he was concerned

that Thompkins would attempt to hit him or that Thompkins was holding

something in his hand that could hurt the officer. Officer Smith told Thompkins to

open his fist and also physically tried to pry his fingers open to see if he was

holding anything. Thompkins began flailing his arms in an aggressive manner

and took a couple of steps away from Officer Smith. After attempting to grab

Thompkins’s arm again, Officer Smith determined that Thompkins was resisting

his attempts to search him and ―knew there was going to be a struggle.‖

Officer Wheatley approached to assist. During the struggle, all three men

fell to the ground. Officer Smith testified that Thompkins did not actively try to

3 hurt the officers but resisted their verbal commands to show his hands and

resisted their attempts to physically get control of him. Officer Smith used his OC

spray—similar to pepper spray—on Thompkins, but it was ineffective in that it did

not allow the officers to get control of Thompkins’s hands. Officer Wheatley then

used his Taser on Thompkins. The officers arrested Thompkins and placed him

in handcuffs.

Officer Smith went to Thompkins’s truck to see what Thompkins had been

reaching for and found the scissors. Officer Smith noticed the odor of marijuana

coming from inside the truck. He found a plastic grocery sack sitting in the

middle of the truck’s bench seat between the driver’s and passenger’s sides.

Inside the sack was a clear baggie containing what appeared to be marijuana.

At trial, Vique Rugama testified for Thompkins. She said that she and

Thompkins live together and have children together. She testified that

Thompkins had gone to the store and was pulled over in front of their house as

he was returning from the store. Rugama was inside the house and heard the

officers ask Thompkins what gang he belonged to, whether he had ever been in

prison, and whether Thompkins actually lived at the house. Rugama went

outside and tried to tell the officers that Thompkins did live there, but the officers

told her to go back inside. She did not. According to Rugama, one officer asked

Thompkins to get out of the truck, he complied, and as the officer was patting him

down, Thompkins asked if he was being arrested. At that point, ―the officer

grabbed his arm and swung him around.‖ Both officers then grabbed Thompkins

4 and ―they ended up on the floor.‖ The officers put handcuffs on Thompkins while

they were on the ground and then sprayed him with pepper spray. Thompkins

asked for water, and one officer told him that if he did not remain quiet, he was

going to ―tase‖ him. Thompkins complained that fire ants were biting him, and

the officer then ―tased him for no reason.‖ Rugama said that the officers

threatened to arrest her if she did not go back inside her house. On cross-

examination, Rugama testified that she had filed a complaint about the officers

with the Arlington police station, but Officer Wheatley testified that he had no

knowledge of an internal affairs investigation about the incident.

III. STANDARD OF REVIEW

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). This standard gives full play to the responsibility of the trier of

fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).

The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

5 S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

IV. SUFFICIENT EVIDENCE TO SUPPORT RESISTING ARREST CONVICTION

In his first issue, Thompkins argues that the evidence is insufficient to

support his conviction for resisting arrest. To convict a defendant of resisting

arrest, the State must prove beyond a reasonable doubt that the defendant

intentionally prevented or obstructed a person he knows is a peace officer from

effecting an arrest or search of him by using force against the officer. Tex. Penal

Code Ann. § 38.03(a) (West 2011).

Here, the jury heard Officers Smith’s and Officer Wheatley’s testimony that

Thompkins resisted Officer Smith’s attempts to pat him down for weapons.

Officer Smith testified that Thompkins clinched his hand in a fist, did not comply

with Officer Smith’s instruction to unclench his fist, and did not submit to Officer

Smith’s physical attempts to pry his fist open. Officer Smith said that Thompkins

flailed his arms in an aggressive manner. Officer Wheatley testified that he saw

6 Officer Smith struggling to secure Thompkins’s hands behind his back and saw

Thompkins’s right hand was clenched in a fist. Officer Wheatley said that

Thompkins was ―twisting back and forth‖ and trying to ―shrug‖ Officer Smith off of

him. Officer Wheatley said that when he approached, grabbed Thompkins’s

shirt, and told him to get on the ground, Thompkins shoved him.

Thompkins argues on appeal that ―[w]hen the testimony of the officers is

compared to [] that of [Thompkin’s] companion, Ms. Rugama, the officers’

testimony is simply not credible and the evidence is legally insufficient.‖ But the

jury, as the trier of fact, resolved any conflict in the evidence in the State’s favor,

and we may not re-evaluate their credibility determinations. See Isassi, 330

S.W.3d at 638. Viewing the evidence in the light most favorable to the verdict,

we hold that the evidence supports the jury’s determination that Thompkins

intentionally prevented or obstructed Officer Smith’s attempts to search him.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638; see

also Tex. Penal Code Ann. § 38.03(a). We overrule Thompkins’s first issue.

V. SUFFICIENT EVIDENCE TO SUPPORT POSSESSION OF MARIJUANA CONVICTION

In his second issue, Thompkins argues that the evidence failed to link him

to the marijuana found in his truck and failed to establish that the substance

found in his truck was in fact marijuana.

A person commits the offense of possessing marijuana if he knowingly or

intentionally possesses a usable quantity of marijuana. Tex. Health & Safety

Code Ann. § 481.121(a) (West 2010). To prove possession, the State must

7 prove that the accused (1) exercised actual care, custody, control, or

management over the substance and (2) knew that the matter possessed was a

controlled substance. Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2012);

Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The elements of

possession may be proven through direct or circumstantial evidence, although

the evidence must establish that the accused’s connection with the substance

was more than fortuitous. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim.

App. 2005).

Mere presence in the same place as the controlled substance is

insufficient to justify a finding of possession. Evans, 202 S.W.3d at 161–62.

However, when a defendant is exerting exclusive control over a vehicle, it may

be inferred that he has knowledge of what is in that vehicle and he may be

deemed to have possessed any contraband found in it. Menchaca v. State, 901

S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref’d); see Castellano v. State,

810 S.W.2d 800, 806 (Tex. App.—Austin 1991, no pet.) (citing United States v.

Richardson, 848 F.2d 509, 513 (5th Cir. 1988)). Although knowledge of the

contraband may be inferred from the defendant’s exclusive control of the vehicle,

when contraband is found in a hidden compartment of a vehicle in which the

defendant was the sole occupant, courts have often required a showing of

―additional factors indicating knowledge such as circumstances indicating a

consciousness of guilt on the part of the defendant.‖ See Menchaca, 901 S.W.2d

at 652; Castellano, 810 S.W.2d at 806; see also Evans, 202 S.W.3d at 162 n.12

8 (listing possible factors to consider in assessing the link between a defendant

and contraband). The number of linking factors present is not as important as

the ―logical force‖ they create to prove that an offense was committed. Roberson

v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

The absence of various links does not constitute evidence of innocence to be

weighed against the links present. Hernandez v. State, 538 S.W.2d 127, 131

(Tex. Crim. App. 1976); James v. State, 264 S.W.3d 215, 219 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d).

Here, the fact that Thompkins was the sole occupant of the truck supports

a finding that he exercised actual care, custody, control, or management over the

marijuana. See Menchaca, 901 S.W.2d at 652; Castellano, 810 S.W.2d at 806.

The marijuana was not in a hidden compartment of the truck but was sitting on

the truck’s bench seat next to where Thompkins was sitting. Thus, his

knowledge of the presence of marijuana can be inferred. See Menchaca, 901

S.W.2d at 652; Castellano, 810 S.W.2d at 806. Nevertheless, additional factors

also indicate Thompkins’s knowledge that the substance was marijuana. It was

conveniently accessible to him. See Evans, 202 S.W.3d at 162 n.12 (listing

close proximity to accused as a factor). Officer Smith smelled the odor of

marijuana coming from inside the truck as he stood by the driver’s side door.

See id. (listing presence of odor of narcotics as a factor). Thompkins appeared

nervous and was very agitated when the officers approached his truck; he said

that he did not want to go to jail, despite being told that he had been stopped for

9 a defective license plate light. See Silva v. State, No. 03-11-00346-CR, 2012 WL

3601121, at *3 (Tex. App.—Austin Aug. 17, 2012, pet. ref’d) (mem. op., not

designated for publication) (rejecting defendant’s argument that his nervousness

stemmed from fear of going to jail for a suspended driver’s license because State

not required to disprove all possible inferences and jury assumed to resolve all

inferences in support of verdict); see also Sheppard v. State, No. 03-10-00868-

CR, 2012 WL 6698963, at *3–4 (Tex. App.—Austin Dec. 21, 2012, no pet.)

(mem. op., not designated for publication) (noting that jury choses between

alternative reasonable inferences). We conclude that, based on the logical force

created by the links between Thompkins and the marijuana, a rational trier of fact

could have found beyond a reasonable doubt that he possessed the marijuana

found in his truck. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also

Horton v. State, No. 02-11-00244-CR, 2012 WL 171302, at *8 (Tex. App.—Fort

Worth Jan. 19, 2012, pet. ref’d) (mem. op., not designated for publication)

(holding evidence sufficient to support conviction when appellant was driver and

sole occupant of vehicle containing baggie of marijuana and drug paraphernalia,

which were found in close physical proximity to appellant).

Thompkins also argues that the substance found in his truck was not

tested to determine if it was indeed marijuana and that, consequently, insufficient

evidence exists to support his conviction for possession of marijuana. But the

court of criminal appeals has held that because marijuana has a distinct odor and

appearance, chemical testing and expert testimony is not necessary to prove that

10 a substance is in fact marijuana; instead, the substance may be identified

through the lay opinion of a police officer or other witness. See Osbourn v. State,

92 S.W.3d 531, 537 (Tex. Crim. App. 2002) (―It does not take an expert to

identify the smell of marihuana[;] . . . [rather,] a witness who is familiar with the

odor of marihuana . . . through past experiences can testify as a lay witness that

he or she was able to recognize the odor.‖). The testimony of experienced

officers can be sufficient evidence from which a jury can determine beyond a

reasonable doubt that a substance is marijuana. See Boothe v. State, 474

S.W.2d 219, 221 (Tex. Crim. App. 1971).

Here, two police officers and one investigator testified that they identified

the substance found in Thompkins’s truck as marijuana. Officer Smith explained

that the police academy training taught him to identify marijuana by appearance

and odor—he examined marijuana and burned it as part of his training. He also

explained that he has dealt with marijuana many times as a police officer. Officer

Smith said that there are substances that try to replicate the effects of marijuana,

but nothing he has encountered has the distinctive smell and look of marijuana.

He testified that he was ―certain‖ that the substance found in Thompkins’s truck

was marijuana based on its odor and appearance and on the officer’s training

and experience. Officer Wheatley also testified that he has ―[a] lot‖ of experience

with marijuana as a police officer and has made hundreds of arrests for

marijuana possession. He was also certain that what they found in Thompkins’s

truck was a useable quantity of marijuana.

11 Tarrant County District Attorney Investigator Wayne Fitch testified that he

has been an investigator for Tarrant County since 1999; prior to that, he was a

Fort Worth police officer for thirty years. Of those thirty years as a police officer,

he worked specifically with narcotics. For thirteen years, he was assigned to the

federal Drug Enforcement Agency in Fort Worth. He had extensive dealings with

marijuana in those thirteen years and can recognize it by sight, smell, and taste.

Investigator Fitch testified that the substance found in Thompkins’s truck was a

useable quantity of marijuana.

Viewing the evidence in the light most favorable to the verdict, we hold that

the jury could have rationally found all the essential elements of possession of

marijuana beyond a reasonable doubt, including that the substance was

marijuana and that Thompkins intentionally or knowingly exercised care, control,

or management of it. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi,

330 S.W.3d at 638; see also Tex. Health & Safety Code Ann. § 481.121(a). We

overrule Thompkins’s second issue.

VI. CONCLUSION

Having overruled Thompkins’s first issue, we affirm the trial court’s

judgment in cause number 1211017 (our case number 02-12-00526-CR).

Having overruled Thompkins’s second issue but having determined that the trial

court’s judgment in cause number 1211018 (our case number 02-12-00527-CR)

incorrectly reflects Thompkins’s sentence for the marijuana possession

conviction as 200, rather than 90, days’ confinement, we modify the judgment in

12 that case to reflect the correct sentence of 90 days’ confinement and affirm the

trial court’s judgment as modified. See Tex. R. App. P. 43.2(b).

SUE WALKER JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: October 3, 2013