Derrick Lee Thomas v. State

• Court: Court of Appeals of Texas
• Decided: January 14, 2015
• Docket: 01-14-00332-CR
• Status: Published

Opinion

ACCEPTED 01-14-00332-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/14/2015 1:36:23 PM CHRISTOPHER PRINE CLERK

No. 01-14-00332-CR In the Court of Appeals FILED IN 1st COURT OF APPEALS For the HOUSTON, TEXAS First District of Texas 1/14/2015 1:36:23 PM At Houston CHRISTOPHER A. PRINE Clerk  No. 1386629 In the 262nd District Court Of Harris County, Texas 

DERRICK LEE THOMAS Appellant V. THE STATE OF TEXAS Appellee  STATE’S APPELLATE BRIEF 

DEVON ANDERSON District Attorney Harris County, Texas

ABBIE MILES State Bar No: 24072240 Assistant District Attorney Harris County, Texas

Jim O’Donnel Assistant District Attorneys Harris County, Texas

1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713/755-5826 FAX No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.

IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

Complainant, victim, or aggrieved party:

State of Texas

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Abbie Miles  Assistant District Attorney on appeal

Jim O’Donnel  Assistant District Attorney at trial

Appellant or criminal defendant:

Derrick Lee Thomas

Counsel for Appellant:

Maverick J. Ray  Counsel on appeal

Audrie Lawton  Counsel at trial

Trial Judge:

Hon. Denise Bradley  Presiding Judge

i TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT……………………...………..i

IDENTIFICATION OF THE PARTIES……………………………………...……i

INDEX OF AUTHORITIES……………………………………..………………..iii

STATEMENT OF THE CASE……………………………………………..………1

STATEMENT OF THE FACTS…………………………………..………………..1

SUMMARY OF THE ARGUMENT……………………………………..………....3

REPLY TO APPELLANT’S FIRST ISSUE PRESENTED The trial court did not err in denying appellant’s motion to suppress because the search of appellant’s vehicle was supported by probable cause since Officer Parker observed crack cocaine in plain view on the driver’s seat of appellant’s vehicle while Officer Parker was standing outside the vehicle at a lawful vantage point……………5

REPLY TO APPELLANT’S SECOND ISSUE PRESENTED Appellant has not preserved any claim that the trial court’s comments to the venire lowered the State’s burden because he failed to object at trial, and the comments did not indicate a bias or partiality. The trial court’s comments did not confuse the jury or lower the State’s burden because the comments simply encouraged the venire to use their common sense when determining if the State has proven the case to each beyond a reasonable doubt to each individual juror. Further, appellant has inadequately brief this point of error regarding an alleged jury charge error by providing no authority for the proposition that the instruction on the burden of proof in this case was erroneous. Regardless, the instruction in this case does not define beyond a reasonable doubt, or comment on the evidence, and is thus not error. Appellant cannot establish that he suffered any harm as a result of the trial court’s statements in voir dire or the jury instruction regarding the burden of proof because appellant failed to argue that he suffered harm, and thus impliedly concedes there was no harm, and the evidence of appellant’s guilt was overwhelming.................................12

ii REPLY TO APPELLANT’S THIRD ISSUE PRESENTED However, the trial court did not abuse its discretion in admitting State’s Exhibit 4 and 5, the evidence envelope and the crack cocaine rocks contained therein, because the chain of custody was conclusively established by Officer Parker who testified that he retrieved the evidence, tagged it for transport to the laboratory, then retrieved the exhibits and brought them to court for trial……………………………………...…23

REPLY TO APPELLANT’S FOURTH ISSUE PRESENTED The evidence that appellant possessed the crack cocaine rocks is legally sufficient because of appellant’s close proximity and accessibility to the narcotics, appellant was seen gesturing suspiciously in the area of where the drugs were found, the narcotics were found in plain view where appellant was sitting, and appellant was acting nervous......................................................................................................................................29

CONCLUSION…………………………………..………………………………..37

CERTIFICATE OF SERVICE………………………………………………….....38

iii INDEX OF AUTHORITIES Cases

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994). ....................................................................... 12

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ........................................................................ 13

Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995)................................................................ 30

Anderson v State, 414 S.W.3d 251 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). ........................... 15

Arizona v. Gant, 556 U.S. 332, 351 (2009). ........................................................................................... 10, 11

Barnes v. State, 424 S.W. 3d 218, (Tex. App.-Amarillo 2014, no pet.) ................................................. 10

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)(plurality op.)................................................. 30

Cade v. State, 795 S.W.2d 43 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) ............................. 17

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). ........................................................................... 6

Carriere v. State, 84 S.W.3d 753 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) ........................ 20, 21

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)................................................................ 31

Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) .................................................................. 30

iv Copeland v. State, No. 14–07–00475–CR, 2008 WL 4735199 (Tex. App.--Houston [14th Dist.] Oct. 30, 2008, pet. ref'd) (mem. op., not designated for publication) ................................. 19

Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010). ........................................................................ 23

Dahlem II v. State, 322 S.W.3d 685 (Tex. App.—Fort Worth 2010, pet ref’d)...................................... 9, 10

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) .................................................................... 31

Dickey v. State, 96 S.W.3d 610 (Tex. App.—Houston [1st Dist.] 2002, no pet.). ................................... 9

Dossett v. State, 216 S.W.3d 7 (Tex. App.—San Antonio 2006, pet ref ’d). ............................................ 24

Ennis v. State, 71 S.W.3d 804 (Tex. App.—Texarkana 2002, no pet.). ................................................. 29

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ........................................................................ 32

Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005) ............................................................................ 5

Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App.1999) ................................................................... 14, 30

Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012) ........................................................................ 15

Garcia v. State, 246 S.W.3d 121 (Tex. App.—San Antonio 2007, pet. ref’d) ....................................... 20

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991 ......................................................................... 19

v Guzman v. State, 955 S.W.3d 85 (Tex. Crim. App. 1997). ........................................................................... 6

Haro v. State, 371 S.W.3d 262 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d) ....................... 14, 17

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...................................................................... 31

James v. State, 264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet ref’d). ............................ 35

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997). ....................................................................... 24

Latson v. State, 440 S.W.3d 119 (Tex. App.—Houston [14th Dist.] 2013, no pet.). ...................... 16, 18

Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009). ....................................................................... 13

Long v. State, 532 S.W.2d 591 (Tex. Crim. App. 1975) .......................................................................... 8

Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005). ........................................................................ 23

Matson v. State, 819 S.W.2d 839 (Tex. Crim. App. 1991) ........................................................................ 31

Maxwell v. State, 73 S.W.3d 278 (Tex. Crim. App. 2002) ............................................................................ 5

Meadows v. State, 01-09-00443-CR and 01-09-00444-CR, 2010 WL 2874199 (Tex. App.—Houston [1st Dist.] July 22, 2010, pet ref’d) ................................................................................... 18

Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004). ....................................................................... 13

vi Moore v. State, 907 S.W.2d 918 (Tex. App. --Houston [1st Dist.] 1995, pet. ref'd) ............................ 14

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). ......................................................................... 22

Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003). ................................................................. 15, 18

Nichols v. State, 886 S.W.2d 324 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d). .............................. 7

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). ................................................................... 19, 20

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ........................................................................ 32

Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet. h.) ................ 30

Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000) ............................................................................ 7

Rogers v. State, 795 S.W.2d 300 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). ..................... 15, 18

Shaw v. State, 329 S.W.3d 645 (Tex. App.—Houston [14th Dist.] 2010, pet ref ’d) ...................... 24, 26

St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007) ...................................................................... 5, 6

State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013). ......................................................................... 7

Swarb v. State, 125 S.W.3d 672 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) ....................... 8, 9

Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003) .................................................................... 31

vii Texas v. Brown, 460 U.S 730 (1983).............................................................................................................. 7

United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999). .................................................................................. 33, 34

United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995) ......................................................................................... 33, 34

United States v. Majette, 326 Fed. Appx. 211, 213 (4th Cir. 2009) ......................................................................... 11

United States v. Sparks, 291 F.3d 683 (10th Cir. 2002) ........................................................................................... 10

Villani v. State, 116 S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d.) .......... 30, 31

Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000) ........................................................................ 8, 9

Wilder v. State, 111 S.W.3d 249 (Tex. App.—Texarkana 2003, pet ref’d) ............................................ 17

Williams v. State, No. 07-01-0414-CR, 2003 WL 327601 (Tex. App.—Amarillo 2003, pet. ref’d) ...... 18

Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002). ......................................................................... 13

Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) ...................................................................... 31

Zachery v. State, No. 14-07-01050-CR, 2009 WL 136915 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ..................................................................................................................................... 17 Statutes TEX. CODE OF CRIM. PROC. ANN. art. 36.19 (West 2012). ........................................ 13, 23

viii TEX. CODE OF CRIM. PROC. art. 14.01. ................................................................................. 8 TEX. CONST. art. I, § 9 ........................................................................................................... 7 TEX. CONTROLLED SUB. ACT. § 481.115 (West 2013). .................................................... 32 TEX. TRANSP. CODE § 545.104 (West 2011) ........................................................................ 8 U.S. CONST. IV ....................................................................................................................... 7 Other Authorities BLACK’S LAW DICTIONARY (9th ed. 2009). .......................................................................... 27 Rules TEX. R. APP. P. 9.4(g) .............................................................................................................. i TEX. R. APP. P. 33.01 ............................................................................................................ 13 TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i TEX. R. APP. P. 39.1 ................................................................................................................. i TEX. R. APP. P. 44.2(a) ......................................................................................................... 22 TEX. R. EVID. 901 ................................................................................................................. 23

ix TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged with possession of a controlled substance, and in two

enhancement paragraphs, was alleged to have been previously convicted of assault of

a family member and possession of a controlled substance with intent to deliver (C.R

10; R.R.III 7). Appellant entered a plea of not guilty to the offense, and pleas of

“true” to both enhancement paragraphs (R.R.III 7, R.R.V 6). The jury found appellant

guilty, and the court assessed punishment at confinement for five years in the

Institutional Division of the Texas Department of Criminal Justice (R.R.IV 39, R.R.V

24, C.R.103)



STATEMENT OF FACTS

The State challenges all factual assertions in appellant’s brief and presents the

following account of the facts.

Officer Matthew Parker, of the Houston Police Department, was on duty May

6, 2013, on the north side of Houston in an area known for narcotics and gang

activity, when he pulled over a vehicle that failed to signal a left turn (R.R.III 15-17).

Once the car pulled over, Officer Parker approached the driver’s side window, and

asked the driver, Derrick Lee Thomas, appellant, for his driver’s license (R.R.VIII 17-

18). In the passenger seat of appellant’s vehicle sat Ed Galloway (R.R.III 17, 23). While Officer Parker was talking to appellant, he sounded very nervous and his hands

were shaking (R.R.III 18). Officer Parker noticed that appellant’s right hand appeared

to be “cuffed” as if he was “holding onto something or concealing something”

(R.R.III 18-19). Officer Parker knew from his experience that people often try to

conceal narcotics in their hands in a similar way (R.R.III 19). Appellant used his right

hand that was “cuffed” to reach into his back right pocket to retrieve his wallet, and

as he did so his “cuffed” fingers appeared to open allowing him to drop something in

the area of his right thigh before retrieving his wallet1 (R.R.III 20).

Officer Parker’s suspicion that appellant was concealing narcotics persisted

after seeing appellant do this (R.R.III 22). Appellant gave Officer Parker his driver’s

license, and then Officer Parker asked appellant to step out of the vehicle in hopes of

retrieving what appellant dropped on the seat (R.R.III 22). As appellant got out of the

car, Officer Parker saw two white crack rocks on the driver’s seat (R.R.III 23, R.R.IV

17). Officer Parker pretended like he did not see the crack rocks and placed appellant

in the backseat of his patrol car2 (R.R.III 23-24).

Officer Parker returned to appellant’s vehicle, this time asking Mr. Galloway to

exit the vehicle (R.R.III 25). Mr. Galloway begins mumbling “as if he was concealing

something in his mouth” (R.R.III 25). Officer Parker knew from his experience that

Mr. Galloway was likely concealing narcotics in his mouth (R.R.III 25). Officer Parker

1 Officer Parker was able to observe appellant doing this despite the night time hour because he shone his flashlight into appellant’s vehicle (R.R.III 20). 2 Although appellant was being detained, he was not yet placed in handcuffs (R.R.III 24).

2 told Mr. Galloway to open his mouth, which he did briefly, but then shut it “and

began to chew” (R.R.III 25-26). Mr. Galloway persisted in his chewing and swallowed

the substance in his mouth despite Officer Parker’s orders to the contrary (R.R.III

26). Officer Parker grabbed Mr. Galloway’s arm to handcuff him, but Mr. Galloway

resisted and a struggle ensued (R.R.III 26-27). Once Mr. Galloway chewed and

swallowed the substance in his mouth, Officer Parker was able to gain control of Mr.

Galloway and placed him and then appellant in handcuffs (R.R.III 27). A screwdriver3

with white residue was recovered from Mr. Galloway’s front pocket (R.R.III 28).

Officer Parker then retrieved the two white crack rocks appellant dropped on the

driver’s seat (R.R.III 31, R.R.IV 17). The total weight of the crack rocks was .18 grams

(R.R.IV 17).

SUMMARY OF THE ARGUMENT

The trial court did not err in denying appellant’s motion to suppress because

the search of appellant’s vehicle was supported by probable cause since Officer Parker

observed crack cocaine in plain view on the driver’s seat of appellant’s vehicle while

Officer Parker was standing outside the vehicle at a lawful vantage point.

Appellant has not preserved any claim that the trial court’s comments to the

venire lowered the State’s burden because he failed to object at trial, and the

3 A screwdriver is frequently used to remove the “brillo”, used as a filter, in a crack pipe (R.R.III 28-29).

3 comments did not indicate a bias or partiality. The trial court’s comments did not

confuse the jury or lower the State’s burden because the comments simply encouraged

the venire to use their common sense when determining if the State has proven the

case beyond a reasonable doubt to each individual juror. Further, appellant has

inadequately brief this point of error regarding any alleged jury charge error by

providing no authority for the proposition that the instruction on the burden of proof

in this case was erroneous. Regardless, the instruction in this case does not define

beyond a reasonable doubt, nor comment on the evidence, and is thus not error.

Appellant cannot establish that he suffered any harm as a result of the trial court’s

statements in voir dire or the jury instruction regarding the burden of proof because

appellant failed to argue that he suffered harm, and thus impliedly concedes there was

no harm, and the evidence of appellant’s guilt was overwhelming

The trial court did not abuse its discretion in admitting State’s Exhibit 4 and 5,

the evidence envelope and the crack cocaine rocks contained therein, because the

chain of custody was conclusively established by Officer Parker who testified that he

retrieved the evidence, tagged it for transport to the laboratory, then retrieved the

exhibits and brought them to court for trial.

The evidence that appellant possessed the crack cocaine rocks is legally

sufficient because of appellant’s close proximity and accessibility to the narcotics,

appellant was seen gesturing suspiciously in the area of where the drugs were found,

4 the narcotics were found in plain view where appellant was sitting, and appellant was

acting nervous.

REPLY TO FIRST POINT OF ERROR Appellant argues that the trial court erred in overruling his motion to suppress

because Officer Parker did not have probable cause to search appellant’ s vehicle, and

Gant prohibited Officer Parker from searching the vehicle incident to arrest because

appellant and Mr. Galloway were handcuffed in the back of a patrol car and there was

no reasonable belief that Officer Parker could have found evidence of the crime of

failure to signal a turn inside the vehicle. However, Officer Parker had probable cause

to search the vehicle when he observed crack cocaine in plain view on the driver’s seat

when appellant got out of the vehicle, and Gant provides no limitations to Officer

Parker’s search of appellant’s vehicle since that search was supported by probable

cause.

Standard of Review

In reviewing the trial court’s denial of a motion to suppress, the proper

standard of review is a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725

(Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005);

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). If the decision of the

trial court turns on the determination of historical facts, the appellate court gives

nearly complete deference to the trial court’s decision. St. George, 237 S.W.3d at 725.

5 This is especially true when the fact findings of the trial court are based on credibility

and demeanor of witnesses. Id. If the issue presented is a mixed question of fact and

law, the same level deference is given when resolving that issue if it turns on the

credibility and demeanor of witnesses. Guzman v. State, 955 S.W.3d 85, 89 (Tex. Crim.

App. 1997). Mixed questions of law and fact that do not turn on the credibility of

witnesses are reviewed de novo, as are pure questions of law. St. George, 237 S.W.3d at

725; Guzman, 955 S.W.2d at 89; Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.

App. 2000). The decision of the trial court should be sustained if it is supported by

any applicable theory of law. St. George, 237 S.W.3d at 725.

Analysis

Appellant filed a pretrial motion to suppress seeking suppression of all physical

evidence and statements of appellant and Mr. Galloway as obtained in violation of

appellant’s rights under Article 38.22 of the Texas Code of Criminal Procedure,

Article I §§ 9, 10, and 19 of the Constitution of the State of Texas, and the Fourth,

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution (C.R. 31-

32). At trial, during the testimony of Officer Parker, appellant re-urged his motion to

suppress, which the trial court denied, stating that “there was probable cause, […] it

appears that the officer testified it was in plain view[, and]…the officer’s testimony

regarding the traffic stop and his observations was credible and undisputed” (R.R.IV

13).

6 The Fourth Amendment of the United States Constitution and Article I,

Section 9 of the Texas Constitution protect against unreasonable searches and

seizures. U.S. CONST. IV; TEX. CONST. art. I, § 9; State v. Betts, 397 S.W.3d 198, 203

(Tex. Crim. App. 2013). A search conducted without a warrant supported by

probable cause is unreasonable with some specifically delineated exceptions. See Reasor

v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). In the present case, it is

undisputed that Officer Parker did not have a warrant to search appellant’s car.

An exception to the warrant requirement is the plain view doctrine which

requires that law enforcement (1) be legally present when making their observation

and (2) have probable cause to associate any visible evidence with criminal activity, or

put another way, that the incriminating nature of evidence be readily apparent. Walter

v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). An officer is at a lawful vantage

point when having legally made a traffic stop looks through the windows of the

vehicle into its interior. Texas v. Brown, 460 U.S 730, 739-40 (1983). An officer may

rely upon his training and experience in determining whether the item observed in

plain view is contraband. Brown, 460 U.S. at 746 (Powell, J. concurring)(citing United

States v. Cortez, 449 U.S. 411, 418 (1981); Nichols v. State, 886 S.W.2d 324, 326 (Tex.

App.—Houston [1st Dist.] 1994, pet ref’d).

Appellant concedes that Officer Parker had probable cause to conduct a traffic

stop for the offense of failure to signal a lane change, for which appellant could be

7 arrested.4 In it undisputed that Officer Parker seized crack cocaine that he observed in

plain view on the driver’s seat of the vehicle as appellant got out of the driver’s seat

(R.R.III 23). Contraband seen in plain view may be seized without a warrant. Brown,

460 U.S at 736-39 (when officer observed what appeared to be a drug balloon inside a

vehicle, he was permitted to enter the car, and seize it). Evidence found in plain view

does not constitute a search under the Fourth Amendment. See Walter, 28 S.W.3d at

531; Long v. State, 532 S.W.2d 591, 594 (Tex. Crim. App. 1975); See also Swarb v. State,

125 S.W.3d 672, 680 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) (there is no

invasion of privacy when something can be seen in plain view).

In the present case, Officer Parker conducted a traffic stop of appellant in an

area known for narcotics activity (R.R.III 15-17). Appellant appeared and sounded

nervous (R.R.III 18-19). With the assistance of Officer Parker’s flashlight, he

observed appellant appear to be concealing something in his hand, and then appeared

to try to surreptitiously drop the item on his seat while reaching for his wallet (R.R.III

18-20). Officer Parker knew from his experience that this behavior was consistent

with someone attempting to hide narcotics (R.R.III 19). Officer Parker then asked

appellant to step outside the vehicle5, and as appellant got up from his seat he

4 Appellant’s brief at 8. See TEX. TRANSP. CODE § 545.104 (West 2011); See also TEX. CODE OF CRIM. PROC. art. 14.01. 5 Once a driver has legally been stopped for a traffic offense, the additional intrusion of asking the driver to step outside of the vehicle is de minimis and thus does not offend the Fourth Amendment. Maryland v. Wilson, 519 U.S. 408, 412 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1997) “[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violation the

8 observed what he knew, from his training and experience, to be two white crack

cocaine rocks (R.R.III 23).

The trial court could have reasonably concluded that because Officer Parker

had probable cause to search appellant’s car, a search warrant was not necessary.

Observation of contraband or evidence of a crime in plain view inside a vehicle can

be used to establish probable cause to seize the contraband or evidence. Dahlem II v.

State, 322 S.W.3d 685, 689 (Tex. App.—Fort Worth 2010, pet ref’d) (citing Colorado v.

Bannister, 449 U.S.1, 4 (1980)); See also Dickey v. State, 96 S.W.3d 610, 612 (Tex. App.—

Houston [1st Dist.] 2002, no pet.). Officer Parker’s observation of crack rocks on the

driver’s seat of the vehicle gave him probable cause to search the vehicle. Walter, 28

S.W.3d at 539-41. Officer Parker’s actions did not implicate the Fourth Amendment.

See Swarb, 125 S.W.3d at 680 (“[T]he officers…approached appellant’s vehicle in a

parking lot open to the public and shone a flashlight into appellant’s vehicle, there by

observing the methamphetamine in plain view…Looking inside the vehicle, even with

the use of a flashlight, does not implicate the Fourth Amendment”).

Appellant argues that Gant acts in this case to make Officer Parker’s entry into

appellant’s vehicle illegal because Officer Parker had “no reason to believe that

evidence for which [appellant] had been placed in custody- failure to signal turn (sic)-

would be found in the vehicle and since [appellant] and his passenger had been

Fourth Amendment’s proscription of unreasonable seizure.)); See also Rhodes v. State, 945 S.W.2d 115, 118-19 (Tex. Crim. App. 1997).

9 removed and secured in the police unit, there was no basis to believe that either would

be capable of reaching for a weapon or capable of destroying evidence.”6

In Arizona v. Gant, the Supreme Court held that law enforcement “may search a

vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching

distance of the passenger compartment of the vehicle at the time of the search or it is

reasonable to believe that the vehicle contains evidence of the offense of arrest.” 556

U.S. 332, 351 (2009). Gant did not disturb the long standing rule that, if probable

cause exists that a vehicle contains evidence of criminal activity relevant to any

offense, then police may search any area of the vehicle where that evidence might be

found. Id. at 347 (citing United States v. Ross, 456 U.S. 798, 820-21 (1982)); See also Barnes

v. State, 424 S.W. 3d 218, 225 (Tex. App.-Amarillo 2014, no pet.) (“But Gant did not

diminish the reach of the automobile exception”). Probable cause to search exists

when reasonably trustworthy facts and circumstances within the officer’s knowledge

on the scene would lead persons of reasonable prudence to believe that an

instrumentality of a crime or evidence pertaining to a crime will be found. Dahlem II,

322 S.W.3d at 689 (citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.

2007). An officer’s observation of contraband or evidence of a crime in plain view

inside an automobile can be used to establish probable cause to seize the contraband.

Id. at 689; United States v. Sparks, 291 F.3d 683, 690-91 (10th Cir. 2002)(“if an officer

has lawfully observed an object of incriminating character in plain view in a vehicle,

6 Appellant’s brief at 15.

10 that observation, either alone or in combination with additional facts, has been held

sufficient to allow the office to conduct a probable cause search of the vehicle.”).

Appellant cites Gant7 and Majette8 as authority for the proposition that appellant

was not within reaching distance of the passenger compartment of his vehicle9, but

those cases are factually distinguishable because in neither Majette nor Gant did

probable cause to search the vehicle exist, as it does in this case.

Appellant further argues that “[t]he subsequent search of [appellant’s] vehicle

was based upon [Officer Parker’s] hunch or suspicion and not upon his observation

of cocaine that he suspected [appellant] had dropped in the driver seat when he

reached and obtained his wallet from his back pocket.”10 Appellant’s argument that

the search was based only on Officer Parker’s suspicion that narcotics activity was

afoot completely ignores the fact that Officer Parker observed what he knew from his

training and experience to be crack cocaine on the driver’s seat prior to searching the

vehicle, thus providing him with probable cause to search (R.R.III 23). Because the

search of appellant’s vehicle was supported by probable cause since Officer Parker

saw appellant appear to drop something, and then saw crack rocks in plain view on

7 Gant, 556 U.S. at 335-336 (holding that a search of the defendant’s vehicle, when the defendant was arrested and secured inside of a patrol car, violated the Fourth Amendment). 8 United States v. Majette, 326 Fed. Appx. 211, 213 (4th Cir. 2009) (holding that the search of the defendant’s vehicle after the defendant had been arrested for driving with a suspended license and secured in the back of a patrol car violated the Fourth Amendment). 9 Appellant’s brief at 11-15. 10 Appellant’s brief at 16-17.

11 the driver’s seat of appellant’s vehicle when he stood up, appellant’s point of error

should be overruled.

REPLY TO SECOND POINT OF ERROR

Appellant has not preserved any claim that the trial court’s comments to the

venire lowered the State’s burden because he failed to object at trial, and the

comments did not indicate a bias or partiality. Alternatively, the trial court’s

comments did not confuse the jury or lower the State’s burden because the comments

simply encouraged the venire to use their common sense when determining if the

State has proven the case beyond a reasonable doubt to each individual juror. Further,

appellant has inadequately brief this point of error regarding any alleged jury charge

error by providing no authority for the proposition that the instruction on the burden

of proof in this case was erroneous. Regardless, the instruction in this case does not

define beyond a reasonable doubt, or comment on the evidence, and is thus not

erroneous. Appellant cannot establish that he suffered any harm as a result of the trial

court’s statements in voir dire or the jury instruction regarding the burden of proof

because appellant failed to argue that he suffered harm, and thus impliedly concedes

there was no harm, and the evidence of appellant’s guilt was overwhelming

In reviewing a claim of jury charge error, the reviewing court must first

determine whether error occurred. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim.

App. 1994). If the error is properly objected to, reversal is required if “some harm”

12 occurs. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); TEX. CODE OF

CRIM. PROC. ANN. art. 36.19 (West 2012). “Some harm” simply means that reversal is

mandated when it has any impact on the accused. Id. However, if the error is not

objected to at trial, reversal is required only when the accused “has not had a fair and

impartial trial.” Almanza, 686 S.W.2d at 171; TEX. CODE OF CRIM. PROC. ANN. art.

36.19 (West 2012). This type of error is referred to “egregious” or “fundamental

error.” Almanza, 686 S.W.2d at 171.

The entire record is examined considering the charge, the evidence, arguments

of counsel, weight of the evidence, contested evidence, and anything else that is

relevant in the record when looking for whether some harm or egregious harm

occurred. Id.

Preservation of error

To preserve error on appeal, a party must first have presented to the trial court

a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion.

TEX. R. APP. P. 33.01(a)(1); Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App.

2009). The error alleged on appeal must correspond to the objection made at trial.

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Further, the trial court

must have ruled on the request, objection, or motion, or the complaining party must

have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v.

State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A reviewing court should not

13 address the merits of an issue that has not been preserved for appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009); See also Brumit v. State, 206 S.W.3d 639, 644-

45 (Tex. Crim. App. 2006) (stating that the Court did not need to decide whether

objection was required to preserve alleged error on appeal when complained

comments of the trial court when record does not reflect that the comments reflected

any bias or lack of impartiality of the court).

In the present case, appellant did not object to the trial court’s voir dire on

proof beyond a reasonable doubt or to the charge (R.R.II 9-13, R.R.IV 24). Appellant

waived any error in the trial court’s statements during voir dire by not objecting to

them. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.1999) (holding that

appellant waived complaint about trial court's explanation of reasonable-doubt

standard during voir dire by failing to renew objection when trial court repeated

explanation); Moore v. State, 907 S.W.2d 918, 923 (Tex. App. --Houston [1st Dist.]

1995, pet. ref'd) (holding that appellant waived complaint about trial court's comment

during voir dire about weight of evidence); Haro v. State, 371 S.W.3d 262, 266 (Tex.

App.—Houston [1st Dist.] 2001, pet ref’d) (holding that the defendant waived error by

failing to object to the trial court’s comments on reasonable doubt because the error

was not fundamental). Because appellant failed to preserve error regarding the trial

court’s statements to the venire during voir dire, appellant’s point of error should be

overruled.

14 If this Court chooses to address the merits of appellant’s claim, appellant is

wrong because the trial court’s comments did not confuse the jury or lower the State’s

burden because the comments simply encouraged the venire to use their common

sense when determining if the State has proven the case beyond a reasonable doubt to

each individual juror.

In Texas, courts do not define beyond a reasonable doubt. Fuller v. State, 363

S.W.3d 583, 586 (Tex. Crim. App. 2012); Anderson v State, 414 S.W.3d 251, 256 (Tex.

App.—Houston [1st Dist.] 2013, pet. ref’d). The term is meant to be understood in its

common meaning, so that “each juror must decide for himself what amount of proof

would constitute the threshold of beyond a reasonable doubt.” Murphy v. State, 112

S.W.3d 592, 597 (Tex. Crim. App. 2003). Jurors should use their common sense in

determining whether the standard of proof has been met. Rogers v. State, 795 S.W.2d

300, 306 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).

In the present case, during voir dire, the trial court instructed the panel that

there is no definition of beyond a reasonable doubt, but that physical evidence or the

testimony of one witness could be enough for a guilty verdict because its “the quality

of the evidence, not the quantity” that matters and the jury determines quality (R.R.II

9-10, 13).11

11 Appellant argues that “the trial court’s voir die and instruction to the jury equating ‘beyond a reasonable doubt’ with respect to comments upon evidence in other cases that required one witness, fingerprints, DNA, and no eyewitnesses which was satisfactory for juries to enter

15 Appellant argues that “by telling the jury there was no definition of ‘beyond a

reasonable doubt’ and that the appellate courts have left it up to each individual

‘jurors [sic] to determine their level of satisfaction beyond a reasonable doubt’ leaves

little question that this construction was confusing, ill-advised[,] and certainly

dangerous because of the likelihood that it had the effect taken to suggest that the jury

could convict based upon proof different from, and less rigorous than, the very high

standard set forth by the Supreme Court’s requirement of ‘a subjective state of near

certitude.’”12 However, the trial court’s statements were permissible and did not

confuse the venire or lower the State’s burden. See Latson v. State, 440 S.W.3d 119, 121

(Tex. App.—Houston [14th Dist.] 2013, no pet.).

In Latson, the trial court instructed the panel in voir dire that, although there

was no definition of beyond a reasonable doubt, it is whatever “kind of proof that

proves to [the jurors] individually…in your heart.” Id. The defendant argued on

appeal that, by telling the panel this, the trial court improperly defined beyond a

reasonable doubt. Id. Similarly, appellant argues in the present case that “the context

in which the trial court discussed the burden of proof and comments on other cases

verdicts beyond a reasonable doubt…worked to lower the State’s burden of proof.” (Appellant’s brief at 23). This is factually inaccurate. During the trial court’s instruction on the burden of proof it’s only reference to “other cases” was a reference to an episode of CSI, which was used to illustrate that what happens on TV is not reality, not as an illustration to what constitutes proof beyond a reasonable doubt (C.R. 12-13). Contrary to appellant’s argument, the trial court did not give fact scenarios as to what evidence juries have found satisfactory to constitute proof beyond a reasonable doubt, but only stated that it could be based on the “testimony of one single witness if that witness is believed by the jurors to be credible, and they prove every element of the offense beyond a reasonable doubt” or upon “physical evidence alone” (C.R. 13). 12 Appellant’s brief at 26-27.

16 and potential evidence worked to lower the State’s burden of proof… [to each juror’s]

‘[l]evel of satisfaction’ [which is] substantially below what the United States Supreme

Court [articulate] in its unanimous decision in Jackson v. Virginia, …[for] the need for

‘a subjective state of near certitude’…”13 In Latson, the Court held that the trial court’s

comments that beyond a reasonable doubt was what was in each juror’s “heart” was

not improper. Id; See also Haro v. State, 371 S.W.3d 262, 266 (Tex. App.—Houston [1st

Dist.] 2011, pet ref’d) (concluding that trial court’s comments during voir dire did not

taint the presumption of innocence when the trial court instructed the panel that

beyond a reasonable doubt is what each individual juror believes it to be); Wilder v.

State, 111 S.W.3d 249, 252-53 (Tex. App.—Texarkana 2003, pet ref’d) (holding that

prosecutor’s explanation that the State did not have to prove one hundred percent

certainty permissible). See also Cade v. State, 795 S.W.2d 43, 45 (Tex. App.—Houston

[1st Dist.] 1990, pet. ref’d) (concluding that trial court’s comment that reasonable

doubt test might be satisfied “somewhere between fifty and one hundred” on a scale

of one to 100 was not fundamental error because it did not “cause the jury to

misunderstand the reasonable doubt standard); See also Zachery v. State, No. 14-07-

01050-CR, 2009 WL 136915 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (not

designated for publication) (holding that trial court’s comment, that jurors would

know when they were convinced that someone had violated the law and when the

State had proved each element beyond a reasonable doubt, “did not belie an improper

13 Appellant’s brief at 23-24.

17 standard”); See also Williams v. State, No. 07-01-0414-CR, 2003 WL 327601 (Tex.

App.—Amarillo 2003, pet. ref’d) (not designated for publication) (finding that

prosecutor’s suggestion during voir dire that jurors use “common sense” to define

reasonable doubt, and trial court’s explanation that reasonable doubt is not proof

beyond all doubt, were not error).

In both the present case and in Latson, the trial court’s comments did not

indicate that appellant was guilty or apply the burden of proof to the facts of the

present case (R.R.II 9-10, 13). Latson, 440 S.W.3d at 121. The trial court also did not

shift the burden of proof to the defense (R.R.II 9-10, 13). Id. In fact, in the present

case, that trial court was clear that the State has “done the accusing, they have to do

the proving” and “defense counsel is not required to bring [the jury] any evidence”

(R.R.II 14).

Thus, when the trial court instructed the panel that they must decide if the

State has proven the case to each individual juror’s “level of satisfaction” it was simply

instructing the panel that “each juror must decide for himself what amount of proof

would constitute the threshold of beyond a reasonable doubt” using their common

sense. Murphy, 112 S.W.3d at 597; Roger, 795 S.W.2d at 306. See also Meadows v. State,

01-09-00443-CR and 01-09-00444-CR, 2010 WL 2874199, at *5 (Tex. App.—

Houston [1st Dist.] July 22, 2010, pet ref’d) (mem. op., not designated for publication)

(holding that trial court did not commit fundamental error in stating that beyond a

reasonable doubt was “whatever it means” to each juror, “kind of like obscenity, you

18 know it when you see it” because trial court’s statement did not convey opinion as to

defendant's guilt or innocence, and thus did not lower the State’s burden); See also

Copeland v. State, No. 14–07–00475–CR, 2008 WL 4735199, at *2 (Tex. App.--

Houston [14th Dist.] Oct. 30, 2008, pet. ref'd) (mem. op., not designated for

publication) (holding that the trial court did not abuse its discretion by overruling the

appellant's objection to prosecutor's statement that reasonable doubt is “whatever it

means to you”).

In the present case, the jury charge gave the following instruction regarding the

State’s burden of proof:

(1) The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

(2) It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all reasonable doubt concerning the defendant’s guilt.

(3) In the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit him and say by your verdict “Not Guilty.”

(C.R. 98). In Paulson, the Court overruled the requirement that a definition of

reasonable doubt be submitted to the jury as was required by the prior precedent in

Geesa14. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In evaluating

14 Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) overruled by Paulson v. State, 820 S.W.2d 154 (Tex. Crim. App. 2000).

19 whether a jury charge violates Paulson, the reviewing court must to look to whether a

definition of reasonable doubt exists in the charge. Id. at 573.

Although appellant cites the standard of review for jury charge error and then

recites part of the court’s charge regarding the burden of proof,15 appellant offers no

authority or analysis on why this jury instruction was improper, and consequently any

jury charge error has been inadequately briefed. See TEX. R. APP. PROC. 38.1(i).

If this court chooses to address whether the jury charge contained error

regarding its instruction regarding proof beyond a reasonable doubt, the three

paragraphs listed above did not define beyond a reasonable doubt, and thus do not

violate Paulson. See Garcia v. State, 246 S.W.3d 121, 143 (Tex. App.—San Antonio 2007,

pet. ref’d) (holding that the same three paragraphs at issue in the present case “did not

constitute a definition of reasonable doubt and therefore did not violate

Paulson…[and thus] the trial court did not err by including the above language in the

charge). See also Carriere v. State, 84 S.W.3d 753, 759 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d) (holding that the jury instruction that “[i]t is not required that the

prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s

proof excludes all reasonable doubt concerning the defendant’s guilt” was not error).

The instruction in the present case is not the type of instruction prohibited by Paulson.

Id. at 759; Paulson, 28 S.W.3d at 573. Paulson did not preclude trial courts from

15 Appellant’s brief at 17, 22.

20 submitting proper jury instructions that may be phrased differently. Carriere, 84

S.W.3d at 759-60.

Appellant has not preserved any claim that the trial court’s comments to the

venire lowered the State’s burden of proof because he failed to object at trial, and the

comments did not indicate a bias or partiality. Alternatively, the trial court’s

comments did not confuse the jury or lower the State’s burden because the comments

simply encouraged the venire to use their common sense when determining if the

State has proven the case beyond a reasonable doubt to each individual juror. Further,

appellant has inadequately brief this point of error regarding an alleged charge error

by providing no authority for the proposition that the instruction on the burden of

proof in this case was erroneous. Regardless, the instruction in this case does not

define beyond a reasonable doubt, or comment on the evidence, and is thus not error.

Appellant’s point of error should be overruled.

Harm

Appellant fails to argue that appellant suffered any harm from the trial court’s

alleged erroneous comments during voir dire or alleged erroneous instruction in the

jury charge regarding proof beyond a reasonable doubt.

Regarding the statements made by the trial court during voir dire regarding

beyond a reasonable doubt, under Texas Rule of Appellate Procedure 44.2(a), an

appellate court must reverse a judgment if the record reveals a constitutional error,

21 unless the court determines that the error did not contribute to the conviction or

punishment. See TEX. R. APP. P. 44.2(a).

A proper harm analysis regarding jury charge error looks at the degree of the

harm “in light of the entire jury charge, the state of the evidence, including the

contested issues and weight of probative evidence, the argument of counsel and any

other relevant information revealed by the record of the trial as a whole.” Almanza,

686 S.W.2d at 171. Since no objection was made to the jury charge, the record must

demonstrate egregious harm to give appellant the relief he requests (R.R.IV. 24).

Under either harm analysis, appellant suffered no harm from the trial court’s

comments or the instruction in the jury regarding proof beyond a reasonable doubt

considering the overwhelming evidence of appellant’s guilt. Motilla v. State, 78 S.W.3d

352, 357 (Tex. Crim. App. 2002). Appellant acted nervous and appeared to be

concealing narcotics (R.R.III 18-20). He then appeared to drop the object he was

hiding while reaching for his wallet (R.R.III 20). Appellant got up from his seat, and

the crack cocaine rocks were sitting on his seat near the area in which he appeared to

have dropped the object (R.R.III 23; R.R.IV 17). Appellant’s passenger also resisted

arrested and was in possession of drug paraphernalia (R.R.III 26-29). The jury

convicted appellant in an hour and fifteen minutes (C.R. 116). Appellant cannot say

he suffered any harm given the overwhelming evidence of his guilt. Id.

Appellant does not indicate where in the record harm occurred, nor any legal

authority for the proposition. This is either because he concedes that no harm

22 occurred, or because he failed to appropriately cite to the support for his contention

as required by Rule 38.1(i) of the Texas Rule of Appellate Procedure. Either way,

REPLY TO THIRD POINT OF ERROR

Appellant argues that the trial court abused its discretion in admitting State’s

Exhibit 4 and 5 into evidence because the chain of custody was not proven. However,

the trial court did not abuse its discretion in admitting State’s Exhibit 4 and 5, the

evidence envelope and the crack cocaine rocks contained therein, because the chain

of custody was conclusively established by Officer Parker who testified that he

retrieved the evidence, tagged it for transport to the laboratory, then retrieved the

The proper standard of review for challenging the chain of custody is abuse of

discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). The evidence

has been authenticated, or the chain of custody has been established, when there is

sufficient evidence to support a finding that the evidence is indeed what it claims to

be. TEX. R. EVID. 901. Absent evidence of tampering, questions regarding the chain

of custody affect the weight the jury may assign to the evidence, not the admissibility

of the evidence. Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010). If there is

an allegation that the evidence has been tampered with, the allegation must be

23 supported by affirmative evidence of tampering. Dossett v. State, 216 S.W.3d 7, 17 (Tex.

App.—San Antonio 2006, pet ref ’d). The theoretical possibility that the evidence has

been tampered with or the potential for tampering is not sufficient. Id.

To prove chain of custody, it is only necessary that the beginning and end of

the chain be proven. Shaw v. State, 329 S.W.3d 645, 654 (Tex. App.—Houston [14th

Dist.] 2010, pet ref ’d) (rejecting the claim that the evidence was inadmissible because

the State did not have every person who touched the evidence testify to their contact

with the evidence.). It is not necessary to prove every minute in the life of the

evidence. Id. Chain of custody is conclusively established if an officer testifies that he

sieved an item of physical evidence, tagged it, placed an identifying mark on it, placed

it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942 S.W.2d 602,

617 (Tex. Crim. App. 1997).

In the present case, Officer Parker testified that he retrieved the crack rocks

from the seat appellant was sitting in and then secured the crack rocks, State’s Exhibit

5, inside State’s Exhibit 4, the evidence envelope (R.R.III 32-33). Officer Parker

testified that he recognized State’s exhibits 4 and 5 as the evidence envelope and the

crack cocaine contained inside respectively (R.R.III 33). He initialed State’s exhibit 4

when he sealed State’s exhibit 5 inside it (R.R.III 33). He then took State’s exhibits 4

and 5 to the narcotics operation and control center, and from there it was transported

to the lab (R.R.III 34). The exhibits were then brought to court by Officer Parker on

24 trial day (R.R.III 34). The exhibits were “in the same or substantially similar

condition” as when Officer Parker dropped it off at the narcotics operation and

control center (R.R.III 34).

At the laboratory, they were placed in “centralized evidence receiving” which is

“part of the property room” (R.R.IV 7). Although there was no testimony about the

extent of the security in the property room, there was testimony that the integrity of

evidence retrieved from “centralized evidence receiving” is maintained by ensuring

that all seals are intact when retrieving evidence and prior to analysis (R.R.IV 7-8).

The evidence envelope, State’s exhibit 4 and its contents, State’s exhibit 5, arrived

sealed and had no signs of tampering (R.R.IV 10-11). Ms. Rodriguez, the criminalist

specialist, was able to identify the evidence envelope in the court because it bore her

initials that she placed on it when she did the analysis (R.R.IV 11). Ms. Rodriguez

followed safety protocols while testing the cocaine in this case (R.R.IV 10). Once Ms.

Rodriguez had done the analysis on the crack rocks, she “sealed the evidence inside of

a Ziploc 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.” Officer

Parker then brought the evidence to court for trial (R.R.IV 22). Appellant objected to

State’s exhibits 2 through 5 stating that:

.…yesterday I believe that both of the envelopes were actually opened. Today [the State] has gone through the whole process of opening the envelope. Do they get resealed every day?...Well, my objection, well, one, because I will reurge my Motion to Suppress at this time regarding State’s Exhibit 5 based on, you know, lack of probable cause.

25 [The court denied the motion to suppress.]

Ms. Lawton: Okay. Respectfully, may I—yes, I still believe there’s a foundation issue with State’s 5 because of the fact that it, whether or not this is the actual, the same things, I mean that were—

The Court: again, I recognize that you made that objection to the weight not the admissibility. I’m admitting these two exists over objection.

(R.R.IV 13-14).

Officer Parker took the witness stand for a second time to clarify that after the

previous day of testimony he resealed State’s Exhibits 2, 3,16 4, and 5 and drove them

back to the crime lab and “turned them in” (R.R.IV 22-23). The next morning, he

retrieved them from the crime lab and brought them back to court (R.R.IV 23).

Appellant argues that “there is no link in the chain that discloses the transfer of

the evidence submitted by Officer Parker[,] who did not initial any of the packages of

cocaine to the laboratory[,] or any documentation that Exhibit 4, the evidence

envelope, was delivered to the laboratory and placed in a vault for security

purposes.”17 While no evidence was offered as to who drove the exhibits from the

narcotics operation and control center to centralized evidence receiving, the chain of

custody in the present case was proven by establishing the beginning and end of the

chain through the testimony of Officer Parker and Ms. Rodriguez. Shaw, 329 S.W.3d at

654. Appellant’s argument that the State failed to establish that “any documentation

16 State’s Exhibits 2 and 3 were the evidence envelope and screwdriver with cocaine residue found on the passenger Ed Galloway, which were not admitted into evidence (R.R.IV 14). 17 Appellant’s brief at 34-35.

26 that Exhibit 4, the evidence envelope, was delivered to the laboratory and placed in

vault”18 ignores the fact that the witnesses testified that this occurred. Appellant is

wholly without authority that physical “documentation” of chain of custody is a

prerequisite to admissibility.

Appellant then complains that Officer Parker resealed and took exhibits 4 and

5 back to the lab after he testified, and then checked them out the next morning and

brought them back to court where they were entered into evidence.19 Appellant argues

that Officer’s Parker’s actions constituted tampering.20 Tampering is defined as “the

act of altering a thing; esp., the act of illegally altering a document or product, such as

written evidence or a consumer good.” BLACK’S LAW DICTIONARY (9th ed. 2009).

Officer Parker did not alter State’s Exhibit 4 or 5. He simply resealed State’s Exhibit 4,

which contained State’s Exhibit 5, and took it to a secure location so it could be

brought back to the court for the proceedings the next morning (R.R.IV 22-23).

Appellant’s argument that this constituted tampering is ludicrous, and if sustained,

would lead to absurd results where officers are punished for taking care to ensure the

integrity of the piece of evidence is maintained during trial by resealing and

transporting evidence to a secure facility21.

18 Appellant’s brief at 35. 19 Appellant’s brief at 35. 20 Appellant’s brief at 35.

27 Appellant also complains that “the ‘rocks’ of cocaine were neither tagged nor

marked for identification before being left by [O]fficer Parker with the ‘narcotics

operation and control center’ nor was there any evidence that the untagged or marked

cocaine admitted as State’s Exhibit 5 was other than what appeared to be rock cocaine

contained in the evidence envelope marked as State’s Exhibit 4…”22 The State is

uncertain what exactly appellant is saying, but this argument seems to complain that

Officer Parker did not physically mark the actual crack rocks, while conceding that

there is no evidence that State’s Exhibit 5 was not what it purported to be: rocks of

crack cocaine. Common sense dictates that the actual narcotics cannot be labelled

without tampering with the actual crack cocaine rocks, assuming labelling crack rocks

is physically possible. This is why narcotics evidence is put into sealed evidence

envelopes and then the envelopes are initialed and marked. Appellant provides no

authority for the proposition that the actual crack cocaine rocks should have been

tagged and labelled because none exists.

To further illustrate that the trial court did not abuse it’s decision in determining

that chain of custody was sufficiently prove, contrast the facts of the present case

with Ennis. In Ennis, the Court held that the trial court did not abuse its discretion in

admitting weapons into evidence despite the fact that the testimony did not

conclusively establish (1) where the weapons were retrieved from, (2) who retrieved

the weapons, and the testimony also determined that (3) the weapons retrieved were

22 Appellant’s brief at 35-36.

28 not identified as the ones used by the defendant, (4) there was no accounting for the

discrepancy between the time the weapons were seized and when the evidence

envelope was sealed, and (5) there were inconsistencies regarding the evidence

envelope. Ennis v. State, 71 S.W.3d 804, 807-08 (Tex. App.—Texarkana 2002, no pet.).

Given all of these problems regarding the chain of custody of two weapons, in which

the defendant was charged with possession of weapons in a penal institution, the trial

court’s decision to admit the weapons into evidence was not an abuse of discretion.

Id.

Chain of custody is conclusively established if an officer testifies that he seized an

item of physical evidence, tagged it, placed an identifying mark on it, placed it in

evidence storage, and retrieved the item for trial. Lagrone, 942 S.W.2d at 617. Since

Officer Parker testified that he did all of these things in the present case, appellant’s

point of error should be overruled.

REPLY TO FOURTH POINT OF ERROR

Appellant argues that the evidence that appellant possessed the crack cocaine

rocks was legally insufficient because Officer Parker did not testify that he saw the

narcotics in appellant’s hand. However, the evidence was sufficient because of

appellant’s close proximity and accessibility to the narcotics, appellant was seen

gesturing suspiciously in the area of where the drugs were found, the narcotics were

found in plain view where appellant was sitting, and appellant was acting nervous.

29 Standard of Review

The Court of Criminal Appeals has held that legal sufficiency is the only

standard a reviewing court should apply in evaluating whether the evidence proving

each element of the charged offense has been proven beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Pomier v.

State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

Accordingly, this Court must apply a legal-sufficiency standard when addressing

appellant’s sufficiency arguments. Brooks, 323 S.W.3d at 912; Pomier, 326 S.W.3d at

378.

Under a legal sufficiency review, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, 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 (1979); Conner v. State, 67 S.W.3d 192, 197

(Tex. Crim. App. 2001). This Court considers all the evidence and the reasonable

inferences therefrom. Conner, 67 S.W.3d at 197; Alvarado v. State, 912 S.W.2d 199, 207

(Tex. Crim. App. 1995). The jury, as the trier-of-fact, “is the sole judge of the

credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991

S.W.2d 267, 271 (Tex. Crim. App. 1999); Villani v. State, 116 S.W.3d 297, 301 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d.). This Court should not re-evaluate the

weight and credibility of the evidence and thereby substitute its judgment for that of

30 the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Villani,

116 S.W.3d at 301.

Reconciliation of conflicts in the evidence is within the exclusive province of

the jury, and the jury may choose to believe some testimony and disbelieve other

testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). There is a

presumption that conflicted facts were resolved in favor of the prosecution. Matson v.

State, 819 S.W.2d 839, 847 (Tex. Crim. App. 1991). Each fact need not point directly

and independently to the guilt of appellant, as long as the combined and cumulative

force of all the incriminating circumstances is sufficient to support the conviction.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Hooper, 214 S.W.3d at 13. The question is not whether a

rational jury could have entertained a reasonable doubt, but whether it necessarily

would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003).

The “cumulative force” of all circumstantial evidence can be sufficient for a jury to

find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503,

507 (Tex. Crim. App. 2006).

31 Analysis

Appellant argues that the evidence is legally insufficient to prove that he

“exercised actual care, custody, control[,] or management over the two crack rocks of

cocaine discovered during the [search of appellant’s vehicle].”23

A person commits an offense when “the person knowingly or intentionally

possesses a controlled substance listed in Penalty Group 1, unless” the person has a

prescription or possesses the substance in the course of their employment. TEX.

CONTROLLED SUB. ACT. § 481.115 (West 2013). To prove appellant unlawfully

possessed a controlled substance, “the State must prove that the accused exercised

control, management, or care over the substance.” Evans v. State, 202 S.W.3d 158, 161

(Tex. Crim. App. 2006); See also TEX. HEALTH & SAFETY CODE ANN. § 481.002 (38)

(West 2013) (“Possession means actual care, custody, control, or management”).

Possession need not be exclusive, and if the accused is not in exclusive possession of

the narcotics, independent facts and circumstances must affirmatively link the

defendant to the narcotics to the extent that any reasonable juror could conclude that

the defendant possessed the substance and had knowledge of it. Poindexter v. State, 153

S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d 14, 18 (Tex.

App.—Houston [1st Dist.] 2010, pet ref’d).

Several factors assist in establishing an affirmative link between the defendant

and the narcotics. Evans, 202 S.W.3d at 162 n. 12. Some non-exhaustive factors to be

23 Appellant’s brief at 41.

32 considered are “(1) the defendant’s presence when a search is conducted; (2) whether

the substance was in plain view; (3) the defendant’s proximity to and accessibility of

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

arrested; (5) whether the defendant possessed other contraband or narcotics 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 was present; (11) whether the defendant owned or had the right

to possess the place where the substance was found; (12) whether the place where the

substance was 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.” Id.

In support of his argument, appellant points to caselaw from the 7th circuit and

the 11th circuit in two cases in which the defendants were charged with possession of

a controlled substance with intent to deliver or distribute.24 In Kitchen, the Court held

that the evidence that the defendant possessed the cocaine was insufficient when

there had been no agreement between the defendant and the undercover officer to

purchase the cocaine, and the undercover officer took the defendant to a location

where another undercover officer was waiting with a large amount of cocaine. Kitchen,

Appellant’s brief at 38-41. See United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995); See also 24

United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999).

33 57 F.3d at 519. There was conflicting evidence regarding whether the defendant ever

touched the cocaine, but at best, he may have picked up a bag of cocaine and held it

for two to three seconds. Id. The defendant never agreed to buy, nor ever removed it

from the trunk of the undercover officer’s car. Id. The officers arrested the defendant

before he took possession of the drugs or even agreed to take possession of the

narcotics. Id. at 520-525. This evidence was legally insufficient to sustain the

conviction. Id. at 525.

Similarly in Edwards, the defendant was purchasing cocaine from undercover

officers. Edwards, 166 F.3d at 1363. The defendant brought cash to where an

undercover officer parked his car with an envelope of cocaine in the trunk. Id. The

defendant pulled the cocaine out of the envelope momentarily, then returned it to the

envelope, and told the undercover officer that he wanted to “go for a ride” and was

then arrested. Id. The defendant was arrested before he took possession of the

narcotics or agreed to take possession of the narcotics, and thus the evidence proving

possession was legally insufficient. Id. at 1364.

Both Kitchen and Edwards involve cases where the officers prematurely arrested

the defendants before each defendant came into possession of the narcotics. This is

much different than the facts of the present case where the defendant is seen

“[cuffing]” his hand, as if he was concealing something, and then appear to drop

something while reaching for his wallet in his back pocket (R.R.III 18-20). Moments

later, when appellant gets up from his seat, Officer Parker sees crack rocks on

34 appellant’s seat where he appeared to have dropped something while reaching for his

wallet (R.R.III 23, R.R.IV 17). The jury was entitled to believe that it was not a

coincidence that Officer Parker found crack cocaine in the same location that

appellant appeared to drop something that he was concealing in hand, all the while

appearing nervous when interacting with Officer Parker.

In James, officers were working in a high crime area when they observed the

defendant illegally parking at a gas station. James v. State, 264 S.W.3d 215, 217 (Tex.

App.—Houston [1st Dist.] 2008, pet ref’d). The officer saw the defendant and his

passenger exit the parking in the vehicle and observed the driver commit a traffic

offense, for which a traffic stop was conducted. Id. at 218. With the assistance of the

spotlight from the patrol car, the officer observed the defendant “leaning forward in

his seat” looking back at the officer while “[gesturing]” in a manner that indicated that

he was putting something under the seat. Id. The defendant was taken out of the

vehicle and placed in a patrol car. Id. When the officer returned to the car and looked

under the defendant’s seat he found a loaded black revolver. Id. The defendant was

charged with being a felon in possession of a weapon. Id. The defendant, on appeal,

argued that there was no evidence affirmatively linking him to the weapon since no

one saw the firearm in his hand. Id. at 219. This Court held that the evidence that the

defendant possessed the gun was sufficient because the gun was found close to where

he was seated in the vehicle, he acted nervous, and was seen making movements as if

he was concealing something under his seat. Id. at 219-220.

35 James is similar to the present case. Appellant was acting nervous, he was

“[cuffing]” his fingers as if was hiding something, then appeared to drop that hidden

object by his thigh while retrieving his wallet (R.R.III 18-20). When appellant got up

from the seat, cracks rocks were on appellant’s seat in plain view (R.R.III 23; R.R.IV

17). Because of appellant’s close proximity and accessibility to the narcotics, appellant

was seen gesturing suspiciously in the area of where the drugs were found, the

narcotics were found in plain view where appellant was sitting, and appellant was

acting nervous, the evidence that appellant had care, custody, control, and

management of the crack cocaine rocks is legally sufficient. Evans, 202 S.W.3d at 162

n. 12. Appellant’s point of error should be overruled.

36 CONCLUSION

It is respectfully submitted that all things are regular and that the conviction

should be affirmed.

/s/ Abbie Miles ABBIE MILES Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 TBC No. 24072240 Miles_abbie@dao.hctx.net Curry_Alan@daohctx.net

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document has

a word count of 10, 257 words, based upon the representation provided by the word

processing program that was used to create the document.

/s/ Abbie Miles

Abbie Miles Assistant District Attorney

37 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on January 14, 2015:

Maverick Ray 1419 Franklin, 2nd Floor Houston, Texas 77002 maverickray@gmail.com

/s/ Abbie Miles ABBIE MILES Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 TBC No. 024072240 Miles_abbie@dao.hctx.net Curry_Alan@dao.hctx.net

Date: January 14, 2015