Benjamin Tyron Jenkins v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2019
• Docket: 02-17-00344-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-17-00344-CR No. 02-17-00345-CR ___________________________

BENJAMIN TYRON JENKINS, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 43rd District Court Parker County, Texas Trial Court Nos. CR16-0738, CR16-0739

Before Gabriel, Kerr, and Pittman, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

A jury found Benjamin Tyron Jenkins guilty of (1) possession of less than one

gram of a controlled substance (methamphetamine) and (2) fraudulent use or

possession of identifying information. In both cases, the jury assessed his punishment

at two years’ confinement in state jail and a $10,000 fine. The trial court sentenced

Jenkins accordingly, and the judgments are running concurrently.

Jenkins appealed and asserts two points. First, he contends that the evidence is

insufficient to support his possession-of-a-controlled-substance conviction. Second,

he argues that because the deputies had no reasonable suspicion to justify his

prolonged detention, the trial court erred by admitting the “fruits of an illegal search

and seizure.” We affirm.

I. The Evidence

A. The Stop, the Search, and the Arrest

Around 1:00 a.m. on September 2, 2016, Deputy Gerry Olson followed a slow-

moving vehicle for two to three miles, after which the vehicle stopped in the middle

of the roadway—an offense for which Olson said he could have taken the driver to

jail. A female driver, Tina Parker, got out of the car and told Olson that she had

agreed to give her passenger, Jenkins, a ride to Jenkins’s girlfriend’s house in exchange

for gas money and that she and Jenkins were lost. Olson was familiar with the street

that they were looking for (Billabong Court) and estimated that it was about three

miles away.

2 Olson asked Parker for her driver’s license, and Parker went to the driver’s side

door; with his flashlight, Olson looked inside the car, including looking at the driver’s

side floorboard, and saw nothing suspicious. Describing precisely what Parker did—

because what she did or did not do at this moment became significant later—Olson

said, “[Parker] reached into the car, which the driver side was open. She never re-

entered the car at all. She just reached in and grabbed her purse, her wallet, and got

her identification out of it. And then we went directly back to the rear of the vehicle.”

Parker showed Olson her identification card and acknowledged that her driver’s

license was suspended. Driving without a license was also an offense.

Just from talking with Parker, Olson found her story—which included her

initially denying knowing who her passenger was and her claiming that she and the

passenger had met at a game room where she was “selling some pots and pans”—

odd, so he called for backup. Explaining that decision, Olson said, “In the academy,

when the hair on the back of your neck stands up, [we are taught] to trust that

feeling,” and, “[A]s soon as I got out of the car and started talking with [Parker], that’s

the feeling I got.”

Jenkins, who was in the front passenger seat, kept looking over his shoulder at

Olson, making him uneasy, so Olson broke off his conversation with Parker and went

to the driver’s side window to speak with Jenkins. While doing so, Olson took a

second look at the vehicle. Jenkins verified Parker’s story but refused to give his name

3 or provide any identification, so Olson went back to his patrol car to verify Parker’s

license status and to see if she had any outstanding warrants.

Deputy Jacob White then arrived at the scene, and Olson instructed him to

“keep an eye on” Jenkins. So White went to Jenkins and “basically just kind of . . .

chat[ted] with him.”

Dispatch eventually informed Olson that Parker’s driver’s license was

suspended and that she had no outstanding warrants. Around this time, White

informed Olson that Jenkins had also refused to identify himself to White and had

refused to get out of the vehicle.

But White also told Olson that while chatting with Jenkins, White had seen a

pill bottle on the driver’s side floorboard, something Olson thought he would not

have missed when he (Olson) had looked into the vehicle earlier.

Before taking another look himself, Olson asked Parker if there was anything

illegal in the car, and she answered, “Not that I know of.” This response did not allay

Olson’s suspicions; he explained that when people on the street cannot bring

themselves to say “[Y]es,” they frequently dodge the question by answering, “[N]ot

that I know of.” At Olson’s request, Parker then explicitly agreed that he could search

her car.

Olson went back to the car. “The pill bottle was completely in plain view,

[nowhere] near the seat. It was directly in the [middle of the] floor mat,” he said.

4 Because Parker had no opportunity to put the pill bottle there, Olson believed that

Jenkins must have placed it there while Olson and Parker were talking.

The deputies again asked Jenkins to get out of the car, and this time he

complied. Without being asked to do so, Jenkins then turned around to face the car

and put his hands on it. According to Olson, Jenkins was “already assuming the

position to be patted down,” which Olson found consistent with someone who had

been through that experience before. White asked Jenkins if he could pat him down

for weapons, and Jenkins agreed. And this time, when asked, Jenkins gave both his

name and date of birth. Feeling something in Jenkins’s pockets, White next asked for

and received Jenkins’s permission to search them, and White found two wallets.

Finally, White asked for and received Jenkins’s permission to open and search the

wallets.

Inside the first wallet, which Jenkins identified as his own, White found a

driver’s license for a Victor Hernandez Bara. Olson did not recall finding Jenkins’s

driver’s license in that wallet.

The second wallet was one that Jenkins claimed to have found in a driveway.

Inside, the deputies found a credit card for a Rebecca Massey and social security cards

for Mark Filewood, Collin Filewood, and Jourden Linebager. After running a check

on Massey, Olson learned that she was deceased. Also in this wallet the deputies

found a prepaid debit card in Jenkins’s name and numerous other documents with

5 numerous other people’s names on them. By this point, Olson thought that Jenkins

was involved in identity theft.

Olson then searched the vehicle (as Parker had allowed him to do) and

retrieved a see-through pill bottle from the driver’s side floorboard, inside of which

were pills, marijuana, and what appeared to be “a [usable] amount of

methamphetamine” in a clear or whitish baggy. The prescription label bore Massey’s

name and address, which was on the same street (Billabong Court) that Jenkins and

Parker were looking for.1

Continuing his search, Olson found between the center console and the front

passenger seat a manila envelope with Jenkins’s name on it. Inside that envelope the

deputy found different pieces of mail and paperwork and a small yellow plastic baggy

also containing what Olson believed to be methamphetamine. Under the middle

console, Olson found a cigarette package containing a partially smoked marijuana

cigarette. And in the car’s backseat area, Olson found a brown leather laptop bag,

which Jenkins admitted was his, containing more mail with Jenkins’s name on it and a

glass methamphetamine pipe.

Olson then spoke again with Parker, who denied that any of the drugs found in

the car were hers. Finding neither drugs nor other people’s identifying information on

1 Massey’s name was also on a credit card found in one of Jenkins’s wallets.

6 Parker, Olson decided not to arrest her because, in his mind, all the “links” pointed to

Jenkins.

Olson arrested Jenkins for possession of methamphetamine and marijuana and

for identity theft; put him in Olson’s patrol car; and read Jenkins his Miranda rights,

after which Jenkins agreed to talk with him. 2 Although Jenkins denied possessing any

of the methamphetamine, he stated that he used methamphetamine and claimed

ownership of the marijuana cigarette found in the box under the console and the

laptop bag containing the methamphetamine pipe.

B. The Two Baggies, Their Weight, and Their Content

Michelle O’Neal, a forensic scientist working in the drug-chemistry section at

the Tarrant County medical examiner’s office, testified that the contents of the baggie

found in the pill bottle weighed 0.305 grams and that the contents of the second

baggie found in the envelope with Jenkins’s name on it weighed 0.176 grams. After

testing, she determined both were methamphetamine. The combined weight of both

baggies’ contents was less than one gram.

C. Bara, His Lost Driver’s License, and the Absence of Permission

Victor Bara testified that the driver’s license that the deputies recovered was his,

that he had lost it, and that he later had to replace it. Bara had not given anyone

2 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).

7 permission to possess his driver’s license and, more specifically, had never given

Jenkins his permission to possess his driver’s license.

II. Discussion

A. Because the methamphetamine found in the envelope with Jenkins’s name on it supports the verdict, Jenkins’s first point attacking whether the methamphetamine found in the pill bottle was sufficiently linked to him is moot.

In his first point, Jenkins asserts that the evidence is insufficient to show that

he possessed the methamphetamine found in the pill bottle: “The facts[] and

inferences therefrom[] point more toward Parker possessing the methamphetamine[,]

and [Jenkins] was convicted because of his proximity to someone else’s drugs.” But

his point does not contest the evidentiary sufficiency concerning the

methamphetamine found in the envelope with Jenkins’s name on it. The

methamphetamine found in that envelope, standing alone, sufficed to support the

verdict, thereby rendering Jenkins’s complaint attacking the methamphetamine in the

pill bottle moot. See Tex. R. App. P. 47.1; see also Ex parte Reyes, 474 S.W.3d 677,

680 (Tex. Crim. App. 2015).

We overrule Jenkins’s first point.

B. Jenkins had no standing to contest the search of Parker’s car, and he consented to the search of his person and his possessions.

In his second point, Jenkins complains that the trial court erred by admitting

evidence obtained from the searches of Parker’s car and his person because the

deputies detained him longer than any reasonable suspicion justified. Except for

8 Bara’s driver’s license, to which Jenkins stated he had no objection, Jenkins asserted at

trial that all the other items were the “fruits of an illegal search and seizure.”

Representing himself at trial, Jenkins did not explain or express his objection with any

greater particularity. See Tex. R. App. P. 33.1.

1. The Search of Parker’s Car: Parker’s Consent, and Jenkins’s Lack of Standing

A portion of Jenkins’s argument focuses on Parker’s consent to search her

vehicle: “The methamphetamine and marijuana were discovered after Deputy Olson

received consent to search from Parker. And that consent to search was obtained as a

result of the prolonged detention lacking in reasonable suspicion.” But as a nonowner

passenger, Jenkins had no standing to challenge the search of Parker’s vehicle. See

State v. Allen, 53 S.W.3d 731, 732 (Tex. App.—Houston [1st Dist.] 2001, no pet.). We

thus limit Jenkins’s complaint to the search of his person and the possessions taken

from his person.

2. The Search of Jenkins’s Person and Possessions: Jenkins’s Consent; Waiver

Although Jenkins complains about the delay, he does not assert that it rendered

his consent involuntary. Just the opposite: he acknowledges that the search was

consensual. And because Jenkins consented to the searches of his person and

possessions, we hold that he waived any complaint about those searches. See Reyes v.

State, 741 S.W.2d 414, 430 (Tex. Crim. App. 1987); Resendez v. State, 523 S.W.2d 700,

702–03 (Tex. Crim. App. 1975); Byrd v. State, 456 S.W.2d 931, 933 (Tex. Crim. App.

9 1970); Ohlfs v. State, No. 02-11-00376-CR, 2013 WL 1457756, at *5 (Tex. App.—Fort

Worth Apr. 11, 2013, no pet.) (mem. op., not designated for publication); Roth v. State,

917 S.W.2d 292, 299–300 (Tex. App.—Austin 1995, no pet.).

We overrule Jenkins’s second point.

III. Conclusion

Having overruled Jenkins’s two points, we affirm the trial court’s judgment in

both cases.

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: March 14, 2019