Christopher Marc Cogar v. State

• Court: Court of Appeals of Texas
• Decided: September 30, 2020
• Docket: 09-19-00342-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00342-CR __________________

CHRISTOPHER MARC COGAR, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 1A District Court Jasper County, Texas Trial Cause No. 13497JD __________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Christopher Marc Cogar for possession of

methamphetamine, a controlled substance, in an amount of four grams or more but

less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(d). Cogar

pleaded not guilty, but a jury found Cogar guilty and assessed punishment at ten

years’ imprisonment. In a single issue, Cogar challenges the sufficiency of the

evidence to support his conviction. We affirm.

1 Evidence at Trial

Testimony of Trooper Caden Hunt

Caden Hunt, a trooper with the Department of Public Safety (DPS), testified

that he was on patrol on February 24, 2018, and stopped a vehicle for an expired

registration sticker. Hunt recognized Cogar as a passenger in the vehicle. According

to Hunt, Cogar asked if he could leave because he worked “next door” and he was

late to work, and Hunt agreed to let Cogar go. Hunt further testified that he found it

“suspicious” that Cogar was in a hurry to leave, and Hunt learned from the Sheriff’s

Office that there were two outstanding warrants on Cogar for traffic violations.

When Hunt had completed the traffic stop, he walked to the business where

Cogar was working, he arrested Cogar for the two traffic warrants, and he drove

Cogar to the Jasper County Jail. Hunt testified that Cogar was “[v]ery hesitant” to

go to jail and he regarded Cogar’s reluctance as “kind of extreme.” Hunt also

testified that he patted Cogar down before placing him in the patrol car. Hunt recalled

that Cogar had asked to leave his backpack with his mother, and Hunt stopped at a

store on the way to the jail so Cogar could give his mother his backpack.

Hunt testified that he released Cogar to the Jasper County jail staff and he later

received a phone call from Jailer Self telling Hunt that the jail found some

contraband on Mr. Cogar while “dressing him out[]” and saying that

methamphetamine had been found. Hunt further testified that he went back to the

2 jail and he sealed it and marked the evidence package with his initials and later he

mailed the evidence to the Houston DPS Crime Lab for analysis. Hunt recalled that

the field weight of the substance was found to be 8.5 grams.

Hunt recognized State’s Exhibits 2 and 3 as videos taken from his dashcam

and body camera that day, and he agreed they are accurate representations of what

happened that day. The videos were published to the jury.

Testimony of Jailer Michael Self

Michael Self, a jail supervisor at the Sheriff’s Office, testified that he had

worked at the Sheriff’s Office for thirteen and a half years and that he was working

when Hunt brought Cogar to the jail to be booked on traffic warrants. Jailer Mike

Self testified that part of his duties at the jail are to “dress out” prisoners—that is, to

have the person take off their personal clothes and put on a jail uniform. Self testified

about Cogar’s dress-out:

. . . When I took him into the room, [I] told him to go ahead and remove his -- his clothing and at which time he removed his shirt and then was hesitant. He then began to remove his right shoe and stated that he needed to speak with an officer. Well, the officer that had brought him in had already left and I had proceeded with the dress out procedure and when he removed his shoe, that’s when I noticed there was a clear baggie laying on the floor. . . . .... When I [saw] the clear baggie, I told him to step back; and he didn’t want to step back, he didn’t want to move his left foot. So I stepped forward toward him and had him step back. I reached down to get the shoe and the baggie that he had just taken off, and that’s when I

3 noticed that there was an additional baggie that he was trying to conceal with his left foot. I wasn’t -- I didn’t see anything in the baggie until after I got the -- got it out from under his foot and I just grabbed it all and just held it behind my back until he was finished dressing out and then I exited the room with him and then I took the stuff that I recovered to the book in area[.]

Self testified that one of the baggies contained a clear crystalline substance.

According to Self, Cogar also made spontaneous statements about how people bring

drugs into the jail, stating that “he wanted to speak with an officer again and then he

told me that ‘I’ll let you know there -- where -- how they conceal it.’ He said, ‘They

conceal it in their shoes.’” Self took the baggies to the book-in area and notified

Trooper Hunt.

Testimony of Forensic Scientist Veronica Pando

Veronica Pando, a forensic scientist with the DPS Crime Lab in Houston,

testified that she analyzes substances submitted for identification. Pando identified

State’s Exhibit 1 as an envelope containing evidence she had analyzed, she

recognized her initials and the date written on the seal that she applied after her

analysis, and she agreed that markings on the envelope identified it as related to

Cogar’s case. Pando agreed that she analyzed the contents of State’s Exhibit 1 and

the presumptive and confirmatory test results on the substance were positive for

methamphetamine. According to Pando, the net weight of the substance was 4.14

grams. Pando identified State’s Exhibit 4 as a copy of her report on the analysis in

4 this case, which also reflected that the net weight of the substance was 4.14 grams

and identified the substance as methamphetamine. On cross-examination Pando

agreed that her report indicated “All uncertainty values reported as ‘+/-’ are at the

95% confidence level.”

Issue

Appellant argues that the evidence is not legally sufficient to support his

conviction because there is no independent evidence to support the testimony of the

witnesses. According to Appellant, the evidence supporting the verdict amounts to

speculation and is “purely circumstantial.” Appellant further argues that he had

ample opportunity “to remove his shoe and dump the contraband inside of the patrol

car[,]” but that Trooper Hunt found no contraband on him prior to placing him in the

patrol car, and neither Hunt nor Jailer Self saw Cogar in possession of the

contraband.

Appellant also argues that the baggie containing drugs was not fingerprinted

and that there are chain-of-custody issues with the baggie. In addition, Appellant

argues that the forensic analyst who tested the substance only weighed it once and

because of “the uncertainty of measurement,” there is only a 95% confidence level

for the weight obtained. For these reasons, Appellant argues that the evidence is

insufficient to show beyond a reasonable doubt that he committed the crime alleged.

5 Standard of Review and Applicable Law

When an appellant challenges the sufficiency of the evidence supporting a

conviction in a criminal case, appellate courts consider all of the evidence in a light

most favorable to the verdict and decide, after reviewing the evidence in that light,

whether a rational trier of fact could have found the appellant guilty of the essential

elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

We apply “only one standard” to evaluate whether the evidence is sufficient to

support a criminal conviction beyond reasonable doubt and that is “legal

sufficiency.” Temple, 390 S.W.3d at 360; Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010). In reviewing sufficiency challenges, we are required to give

the jury’s findings and its conclusions deference, as it was the jury’s responsibility

to fairly resolve all conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from the basic facts to resolve whether the defendant is guilty

of violating the criminal provision that is at issue at trial. See Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007).

Direct evidence and circumstantial evidence are equally probative, and

circumstantial evidence alone may be sufficient to uphold a conviction so long as

the cumulative force of all the incriminating circumstances is sufficient to support

the conviction. Ramsey v. State, 473 S.W.3d 805, 808-09 (Tex. Crim. App. 2015)

6 (citing Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper, 214

S.W.3d at 13). “Each fact need not point directly and independently to the guilt of

the appellant, as long as the cumulative force of all the incriminating circumstances

is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13 (citing Johnson

v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).

The jury, as the judge of the facts and credibility of the evidence, may choose

to believe or not believe the testimony of the witnesses, or any portion of their

testimony, despite any contradictory evidence. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986) (citing Esquivel v. State, 506 S.W.2d 613 (Tex. Crim. App.

1974)). “‘When the record supports conflicting inferences, we presume that the jury

resolved the conflicts in favor of the verdict, and we defer to that determination.’”

Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016) (quoting Dobbs v. State,

434 S.W.3d 166, 170 (Tex. Crim. App. 2014)). A jury is allowed to draw multiple

reasonable inferences from facts as long as each is supported by the evidence

presented at trial. Temple, 390 S.W.3d at 360.

A person commits the offense of possession of a controlled substance if he

knowingly or intentionally possesses the controlled substance in the prescribed

amount, by aggregate weight, including adulterants or dilutants. See Tex. Health &

Safety Code Ann. §§ 481.102, 481.115. To prove possession, the State must prove

that (1) the accused exercised control, management, or care over the substance; and

7 (2) the accused knew the matter possessed was contraband. Evans v. State, 202

S.W.3d 158, 161 (Tex. Crim. App. 2006). The State does not have to prove that the

defendant had sole or exclusive possession of the drugs. See Cude v. State, 716

S.W.2d 46, 47 (Tex. Crim. App. 1986). However, when the defendant does not have

exclusive possession of the place where the contraband is found, then independent

facts and circumstances must link him to the drugs. Poindexter v. State, 153 S.W.3d

402, 405-13 (Tex. Crim. App. 2005) (citing and quoting Deshong v. State, 625

S.W.2d 327, 329 (Tex. Crim. App. 1981)). Regardless of whether the evidence is

direct or circumstantial, it must establish that the defendant’s connection with the

drug was more than fortuitous. Evans, 202 S.W.3d at 161. This is called the

“affirmative links” rule. Id. The Court of Criminal Appeals has recognized the

following non-exclusive factors as tending to establish affirmative links: (1) the

defendant’s presence when a search is conducted; (2) whether the contraband was in

plain view; (3) the defendant’s proximity to and the accessibility of the contraband;

(4) whether the defendant was under the influence of narcotics when arrested; (5)

whether the defendant possessed other contraband when arrested; (6) whether the

defendant made incriminating statements when arrested; (7) whether the defendant

attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there

was an odor of contraband; (10) whether other contraband or drug paraphernalia

were present; (11) whether the defendant owned or had the right to possess the place

8 where the drugs were found; (12) whether the place where the drugs were found was

enclosed; (13) whether the defendant was found with a large amount of cash; and

(14) whether the conduct of the defendant indicated a consciousness of guilt. See id.

at 162 n.12; Black v. State, 411 S.W.3d 25, 29 (Tex. App.—Houston [14th Dist.]

2013, no pet.). The number of factors is not as important as the logical force they

collectively create to prove that a crime has been committed. Evans, 202 S.W.3d at

162; Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005,

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

Dis.t] 2002, pet. ref’d)). Moreover, the absence of various links does not constitute

evidence of innocence to be weighed against the affirmative links present. See Wiley

v. State, 388 S.W.3d 807, 814 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see

also Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976) (“[T]he

absence of the above facts and circumstances is not evidence of appellant’s

innocence to be weighed against evidence tending to connect appellant to the

marihuana.”).

“Mere presence at the location where drugs are found is thus insufficient, by

itself, to establish actual care, custody, or control of those drugs.” Evans, 202 at 162.

However, presence or proximity, when combined with other evidence, either direct

or circumstantial, can be sufficient to establish that element beyond a reasonable

doubt. Id. Convenient access to the contraband is an accepted factor. See Robinson,

9 174 S.W.3d at 326. “Conveniently accessible” means that the contraband must be

within the close vicinity of the accused and easily accessible so as to suggest that the

accused had knowledge of the contraband and exercised control over it. See id. at

326 (citing Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Deshong,

625 S.W.2d at 329); see also Gregory v. State, 159 S.W.3d 254, 260 (Tex. App.—

Beaumont 2005, pet. ref’d).

Analysis

In this case, Jailer Self observed two baggies while “dressing out” Cogar at

the jail. Self testified that Cogar appeared to be trying to conceal a baggie with his

foot. Upon subsequent analysis by a DPS analyst, one of the baggies was determined

to contain 4.14 grams of a substance containing methamphetamine. Here, the

evidence allowed the jury to conclude that Cogar exercised care, custody, control,

or management over the methamphetamine. The baggies were discovered by the

jailer when Cogar was “dressing out,” and Cogar appeared to be attempting to

conceal the baggie with his foot. We conclude the combined and cumulative force

of the evidence allowed the jury to conclude that Cogar intentionally or knowingly

possessed the methamphetamine that the jailer found when “dressing out” Cogar at

the jail. See Evans, 202 S.W.3d at 162; see also Brooks, 323 S.W.3d at 902 n.19.

The Jailer testified that he took the baggie to the book-in area and he notified

Trooper Hunt. Hunt testified that he put the evidence in a locker and later sent it to

10 the DPS lab for analysis. Pando recognized the baggie as the evidence she received

in this case, and she identified the markings she made after her analysis. On appeal,

Cogar questions why the baggie was not fingerprinted. Circumstantial evidence may

be sufficient to prove the chain of custody. See Cain v. State, 501 S.W.3d 172, 175

(Tex. App.—Texarkana 2016, no pet.); Watson v. State, 421 S.W.3d 186, 190 (Tex.

App.—San Antonio 2013, pet. ref’d). Without evidence of tampering, most

questions concerning the care and custody of a substance go to the weight of the

evidence. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). And

when the State shows the beginning and the end of a chain of custody, any

intermediate gaps go to the weight of the evidence, particularly when the chain of

custody ends at a laboratory. See Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d); Gallegos v. State, 776 S.W.2d 312, 315-16

(Tex. App.—Houston [1st Dist.] 1989, no pet.). Because circumstantial evidence

may be used to prove chain of custody and may be sufficient to uphold a conviction,

we find Cogar’s chain-of-custody argument unavailing. See Ramsey, 473 S.W.3d at

808-09; Cain, 501 S.W.3d at 175; Watson, 421 S.W.3d at 190.

Pando testified that the weight of the substance she analyzed was within a

95% confidence level and that she weighed the substance once. Although Cogar

raises questions on appeal about the scales Pando used, he did not question her about

the scales at trial. Cogar cites to no authority that legal sufficiency requires a higher

11 confidence level for the weight of the substance. A witness’s uncertainty, if any,

generally goes to the weight of the testimony and is for the jury to consider. See

Garza v. State, 633 S.W.2d 508, 511 (Tex. Crim. App. 1981); Prihoda v. State, 352

S.W.3d 796, 803 (Tex. App.—San Antonio 2011, pet. ref’d). And circumstantial

evidence may be sufficient to uphold a conviction. See Ramsey, 473 S.W.3d at 808-

09. Therefore, we find Cogar’s argument about the confidence level of the weight of

the substance in the baggie does not establish insufficiency of the evidence.

As the factfinder, the jury was the exclusive judge of the facts, the credibility

of the witnesses, and the weight to be given the testimony. See Brooks, 323 S.W.3d

at 899; Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may

choose to believe or disbelieve any witness, or any part of a witness’s testimony. See

Sharp, 707 S.W.2d at 614. A rational jury could have determined beyond a

reasonable doubt that Cogar committed the offense as alleged in the indictment. We

conclude that sufficient evidence supports Cogar’s conviction. We overrule

Appellant’s issue, and we affirm the judgment of the trial court.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on August 24, 2020 Opinion Delivered September 30, 2020 Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ. 12