Jerry K. Jones v. State

• Court: Court of Appeals of Texas
• Decided: October 7, 2005
• Docket: 07-03-00495-CR
• Status: Published

Opinion

NO. 07-03-0495-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 7, 2005

______________________________

JERRY JONES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-401,610; HON. CECIL G. PURYEAR, PRESIDING _______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant Jerry Jones was convicted of aggravated robbery by causing bodily injury to a person older than 65 years of age. He challenges the conviction through one issue. In it, he contends that the trial court erred in overruling his objection to purported hearsay uttered at trial. The alleged hearsay consisted of a police officer reiterating what the victim said the appellant said to her. We overrule the issue and affirm the judgment of the trial court.

Theda Krause, who was 78 years old at the time of the assault, lived alone and owned a 1977 blue Buick Regal. A man later identified as appellant occasionally asked her if she would sell the vehicle to him and if she had any work for him to do. She always declined the solicitations.

Eventually, on July 6, 2002, around 11:00 p.m., she heard a soft knock at the door. Krause did not open it but instead talked to the person through the door. The person claimed he had car trouble and needed to use the telephone. However, as they talked, the victim eventually recognized the voice as that of the man who had asked about her car and odd jobs, i.e. appellant. She opened the door and allowed appellant to enter her abode and use the telephone. After doing so and conversing with appellant for a while, he demanded money, struck her, tied her up, and stole money as well as her vehicle. The incident transpired over about an hour period.

Officer David Houser began his investigation of the crime once the police were informed of it a day later. He testified that Krause explained to him that at first she had not recognized appellant's voice but as they conversed through the door, he told her things to help her recognize him. At that point, appellant lodged a hearsay objection which was overruled. Houser then testified that the comments appellant uttered included the following statements: "'I've asked to do yard work for you, I have asked to buy your car, I've asked to do odd jobs for you, I live in the neighborhood, and we've talked on these occasions.'"

Appellant argues that Houser's explanation of what appellant supposedly told Krause to induce her to open the door was inadmissible hearsay. ⁽¹⁾ Further, he claims that identity was the only real issue at trial, and the admission of this evidence adversely affected his contention that another man who looked much like him may have committed the crime. In response, the State posits that the evidence was admissible because the officer simply was explaining how appellant became a suspect in the case.

Assuming arguendo that the evidence was inadmissible, we find the decision to admit it harmless. This is so for several reasons. First, the evidence of appellant's guilt was quite strong. Indeed, the victim identified appellant as her assailant several times and did so both in and out of court. So too had she seen appellant numerous times before the incident and had the opportunity to watch and interact with him for about an hour immediately before and during the assault and robbery. Moreover, a different witness informed the jurors that appellant had allowed him to use a car akin to the one taken by appellant during the robbery. And, to the extent that appellant presented evidence that another individual who looked much like him had been in the vicinity at the time, we are cited to no evidence suggesting, much less illustrating, that the voice of this other person sounded like appellant's. And, this is pivotal since the victim testified that she initially identified appellant as the person who entered her house that night not by looking at him but by hearing his voice.

Next, though the State alluded to the policeman's utterances in its jury argument, it did so obliquely. Yet, it stressed that the victim "recognized his voice," and that argument was clearly supported by the victim's own testimony.

Finally, the victim herself testified that she recognized the voice as that of the person who repeatedly requested the opportunity to do odd jobs for her. This testimony may not be identical to the purported hearsay at issue. Nonetheless, it had a like effect in that it also tied the voice to the person who previously solicited tasks from Krause.

In short, and upon considering the entire record and assessing its potential impact, we cannot say that the admission of the evidence effected a substantial right of appellant or had more than a slight, if any, effect upon the verdict. See Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003) (stating that if admission of the evidence is erroneous, it must be deemed harmless when after reviewing the entire record, the court is reasonably assured the error did not influence or had a slight affect upon the jury's verdict). Accordingly, the issue is overruled, and the judgment of the trial court is affirmed.

Per Curiam

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1. Krause herself only testified that she recognized the man's voice as the man who had asked her if she was selling her vehicle and if she had any odd jobs. She did not testify that he told her things that jogged her memory as to who he was.

pellant could produce a rental agreement.

          Trooper Smith asked for, and received, consent from Moore to search the SUV. As he conducted his search, he noticed a very strong odor of marihuana emanating from the SUV’s interior that was overwhelming. He found a black bag containing marihuana in the back seat and four other bundles underneath the SUV’s seats. The combined weight of the bundles was seven pounds. He also found user amounts on Moore and Appellant. Appellant had a small package of marihuana in his shoe. In total, there was 7.64 pounds of marihuana recovered from the SUV, Moore, and Appellant.

          During the traffic stop, Moore and Appellant gave inconsistent descriptions of their trip to Las Vegas, i.e., their stories varied in their times of departure and the days actually spent in the city. In addition, although Appellant told Trooper Smith that Moore was a family friend, he could not recall Moore’s last name. Finally, Moore indicated that only he knew about the seven pounds of marihuana and Appellant denied knowing that the seven pounds of marihuana was present in the SUV.

Discussion

          Appellant contends the evidence at trial was legally and factually insufficient to support a conviction for third-degree felony possession of marihuana because the State failed to establish that he had custody, care and/or control over the seven pounds of marihuana in the SUV. In support, Appellant contends he was merely a passenger and knew nothing about the large amounts of marihuana.

          I.        Legal Sufficiency

          When conducting a legal sufficiency review of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Instead, we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992).

          To convict someone of the offense of third degree felony possession of marihuana, the State must prove that Appellant (1) knowingly or intentionally (2) possessed (3) a usable quantity of marihuana of not more than fifty pounds and not less than five pounds. Tex. Health & Safety Code Ann. § 481.121(a)(4) (Vernon 2003). Possession means “actual care, custody, control, or management,” § 481.102(38) (Vernon 2003). See also Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2008), and is established by evidence that the accused exercised control, management, or care over the substance and knew that the matter possessed was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).

          The State need not prove exclusive possession of the contraband since control over contraband may be jointly exercised by more than one person; McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.–Dallas 2003, no pet.); however, if the accused was not in exclusive possession of the contraband, the State is required to present some evidence linking him to it. Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006). Regardless whether the State’s evidence is direct or circumstantial, it must establish that the connection between the defendant and the contraband was more than fortuitous. Id.

          Courts have identified a non-exhaustive list of factors that may help to show an affirmative link to the controlled substance. Some relevant factors that may affirmatively link an accused to contraband include: (1) the defendant’s presence when a search is conducted; (2) whether the contraband is in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (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 were present; (11) whether the defendant owned or had the right to possess the place 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. Evans, 202 S.W.3d at 162 n.12. Each case is examined on its own facts and it is not the number of linking factors that is important but the “logical force” they create to prove that the defendant committed the crime. Roberson v. State, 80 S.W.3d 730, 735-36 (Tex.App.–Houston [1^st Dist.] 2002, pet. ref’d).

          Viewing the evidence in a light most favorable to the verdict, the record shows Appellant was riding in the SUV, an enclosed space, containing a substantial amount of marihuana–7.64 pounds. Appellant was present when the search was conducted in close proximity to the marihuana which was accessible and possessed a useable amount on his person. The odor of the marihuana permeated the car’s interior so much so Appellant must have been aware of the presence of a large amount of marihuana. When asked to describe their trip, Appellant’s account substantially differed from Moore’s account. Appellant described Moore as a family friend but could not recall his last name and, although Moore indicated the SUV was a rental, neither he nor Appellant could produce a rental agreement. A rational juror could have found these circumstances sufficient to show Appellant’s knowing possession of the marihuana. Accordingly, we hold this evidence is legally sufficient to support Appellant’s conviction for third-degree felony possession of marihuana and overrule his first point of error.

          II.       Factual Sufficiency

          When conducting a factual sufficiency review, we must begin with the assumption that the evidence is legally sufficient under Jackson. Laster v. State, ___S.W.3d ___, PD-1276-07, 2009 WL 80226, at *2 (Tex.Crim.App. Jan. 14, 2009). A conviction is not subject to reversal on the basis of factually insufficient evidence unless: (1) the evidence supporting the conviction is “too weak” to support the factfinder’s verdict, or (2) considering conflicting evidence, the factfinder’s verdict is “against the great weight and preponderance of the evidence.” Id. In conducting our factual sufficiency review, we must defer to the jury’s findings and we cannot conclude that the conviction is factually insufficient simply because we might disagree with the jury’s verdict. Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). As directed by the Court of Criminal Appeals, in applying our analysis we are guided by at least three “basic ground rules”: (1) we must consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict ; (2) we may only find the evidence factually insufficient when necessary to “prevent manifest injustice”; and (3) we must explain why the evidence presented is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Laster v. State, 2009 WL 80226, at *2; Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

           In support of his assertion of factual insufficiency, Appellant points to videotaped statements recorded during the traffic stop and arrest. Specifically, Moore and Appellant stated Appellant knew nothing of the seven pounds of marihuana in the SUV. Generally, a jury is the sole judge of the credibility and demeanor of witnesses as well as the weight to be given to testimony, see Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997), and we are required to afford “due deference” to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Here, it was within the jury’s province to disbelieve videotaped statements by Moore and Appellant. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999).

          Appellant also asserts that the absence of a large amount of cash in the SUV or on the person of Moore or Appellant militates in favor of a finding of factual insufficiency. However, the absence of various affirmative links does not constitute evidence of innocence to be weighed against the affirmative links present. James v. State, 264 S.W.3d 215, 219 (Tex.App.–Houston [1^st Dist.] 2008, pet. ref’d) (citing Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App. 1976)).

          Having reviewed the entire record, we conclude the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and there is no basis in the record for a determination that the great weight and preponderance of the evidence contradicts the jury’s verdict. See Watson, 204 S.W.3d at 417. We hold that the evidence is factually sufficient and overrule Appellant’s second point of error.

Conclusion

          The trial court’s judgment is affirmed.

                                                                           Patrick A. Pirtle

                                                                                 Justice

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