Anthony Latwone Thompson v. State

• Court: Court of Appeals of Texas
• Decided: October 2, 2008
• Docket: 11-07-00093-CR
• Status: Published

Opinion

Opinion filed October 2, 2008

Opinion filed October 2, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-07-00093-CR

                                                    __________

                        ANTHONY LATWONE THOMPSON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 244th District Court

                                                           Ector County, Texas

                                                 Trial Court Cause No. C-33,059

                                              M E M O R A N D U M   O P I N I O N

The jury convicted Anthony Latwone Thompson of possessing a controlled substance in a correctional facility.  Upon appellant=s plea of true to the enhancement allegations,^[1] the trial court assessed punishment at confinement for thirty-two years.  We modify and affirm. 

Appellant presents three issues for review.  In the first issue, he complains of the dismissal of a potential juror for cause.  In the second issue, appellant contends that the evidence was gained as a result of an illegal arrest.  In his final issue, appellant challenges the legal and factual sufficiency of the evidence. 

Appellant asserts that the trial court applied the wrong legal standard and abused its discretion when, over appellant=s objection, it sustained the State=s challenge for cause of Veniremember Regina McGee.  McGee had expressed concerns about her ability to fairly judge the facts in this case because of prior experiences with law enforcement, namely her brother.  McGee stated that her sister was sent to the federal penitentiary after her brother, who was an Odessa police officer, turned her in.  McGee stated, AI know my brother and he=s a police officer and I don=t believe that he should be.@  During subsequent questioning by the prosecutor, McGee stated that she had bad feelings about some B but not all B police officers and that she believed her feelings would affect her thought processes as a juror.  Upon being questioned by defense counsel, McGee then stated that she could follow the instructions and base her verdict on the evidence in this case.  The court, noticing that McGee was Astruggling with the answer@ to defense counsel=s question, informed McGee that the jurors would be instructed that personal experiences cannot be considered or shared with fellow jurors while deliberating.  The court then asked, ANow, knowing that, if you were instructed, would the -- the experience that you have had in the past involving your brother and your sister, would that affect you in arriving at a verdict in this case?@  McGee answered, AIn this particular case, yes, I do believe so and the circumstances . . . [b]ecause it was drug related.@

The appropriate analysis to be used by a trial court in ruling on the qualifications of a potential juror is whether that person=s views would prevent or substantially impair his duties as a juror to act in accordance with the trial court=s instructions and the oaths taken by a juror.  Kemp v. State, 846 S.W.2d 289, 295 (Tex. Crim. App. 1992).  To review a trial court=s ruling sustaining a challenge for cause, an appellate court must determine whether the totality of the voir dire testimony supports the implied finding of fact that the prospective juror is unable to take the requisite oath and to follow the law as given by the trial court.  Vuong v. State, 830 S.W.2d 929, 943 (Tex. Crim. App. 1992).  An appellant complaining of an erroneously excluded juror must demonstrate that the trial court either applied the wrong legal standard or otherwise abused its discretion in sustaining the challenge for cause.  Id. 

Appellant correctly states that a person cannot be expected to put aside all personal experiences in their service as a juror.  See Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (stating that jurors need not be completely impartial and free of any trace of skepticism toward any category of witness and that jurors cannot be expected to completely remove their own experiences, beliefs, and values).  A veniremember is not challengeable for cause simply because he would be more skeptical of a certain category of witness than of witnesses generally; however, when a veniremember cannot Aimpartially judge the credibility of the witnesses,@ he is challengeable for cause.  Id. (quoting Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978) (holding that veniremember who believed that police officers would always tell the truth should have been excused for cause)).  In Jones, after concluding that the trial court had applied the wrong legal standard in granting the State=s challenge for cause, the Court of Criminal Appeals determined that the error was not of constitutional dimension and that Athe erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury.@  Id. at 391-92, 394; see Tex. R. App. P. 44.2(b).  The record in this case does not show that appellant was deprived of a lawfully constituted or impartial jury but, rather, that he was tried by a duly qualified and impaneled jury.  Consequently, even if the trial court abused its discretion or applied the wrong legal standard in dismissing McGee, we cannot sustain appellant=s issue because the error, if any, is not reversible.  Appellant=s first issue is overruled. 

In his second issue, appellant argues that the evidence used against him should have been suppressed because it was obtained as a result of an illegal arrest.  Appellant contends that his arrest was illegal because he had previously been arrested and released on bond pursuant to the same warrant upon which he was arrested in this case.

The record shows that Officer Matt Davidson stopped appellant for driving at night with no lights on.  During the traffic stop, dispatch notified Officer Davidson that appellant had an outstanding out-of-state warrant from Illinois.  At trial, appellant produced evidence that he had been arrested and released on bond pursuant to the same warrant one month prior to the stop by Officer Davidson.

The trial court admitted the evidence under the good faith exception to the exclusionary rule because the warrant check indicated that appellant had an outstanding warrant for his arrest.  See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005) (exclusionary rule and good faith exception).  We agree.  The exclusionary rule does not apply in cases in which an arresting officer is reasonably acting upon information provided to him even if that information is later determined to be erroneous.  Arizona v. Evans, 514 U.S. 1 (1995); State v. Mayorga, 901 S.W.2d 943, 945 (Tex. Crim. App. 1995); see also Article 38.23(b); Dunn v. State, 951 S.W.2d 478, 479 (Tex. Crim. App. 1997).  Officer Davidson was acting in objective, good faith reliance upon dispatch=s information that an outstanding arrest warrant existed.  Thus, the evidence was properly admitted.  Appellant=s second issue is overruled. 

In the third issue, appellant challenges both the legal and factual sufficiency of the evidence regarding his possession of the cocaine.  We will apply the well-recognized standards of review for sufficiency challenges.  To determine if the evidence is legally sufficient, we must review all of the 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.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).  To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  We must give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence.  Johnson v. State, 23 S.W.3d 1, 8-9 (Tex. Crim. App. 2000). 

The record shows that Officer Davidson arrested appellant and took him to the county jail.  A few hours after appellant was booked in, jailers were notified by another inmate that appellant had cocaine in his possession.  The jailers then removed appellant from the holding tank and took him to a small cool-off cell to conduct a more thorough search of his person.  All three jailers testified that a small baggie was discovered in one of appellant=s socks.  The baggie contained .68 grams of cocaine.  The jailers= testimony differed as to which sock the baggie fell out of and as to whether the baggie fell out when appellant took off the sock, when appellant shook the sock, or while a jailer was searching the sock.  Appellant testified that the baggie was not his and that, during the search in the cool-off cell, the jailers just Aall of the sudden@ said they found a baggie on the floor.

We hold that the evidence is both legally and factually sufficient to support appellant=s conviction for possessing a controlled substance in a correctional facility.  Despite the minor inconsistencies in their testimony, all three jailers were consistent in testifying that appellant possessed the baggie in jail and that it had been located in one of appellant=s socks.  The third issue is overruled. 

The judgment of the trial court is modified to reflect that appellant pleaded true to both enhancement allegations and that the trial court found both to be true.  As modified, the judgment is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

October 2, 2008

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

---

^[1]We note that the judgment inaccurately reflects that a plea and finding on the second enhancement allegation was not applicable; however, the record reflects that appellant pleaded true to both enhancement allegations, that the trial court accepted these pleas, and that appellant was properly instructed as to the 25-year minimum punishment for habitual offenders.