John Blackwell v. State

Court of Appeals of Texas

John Blackwell v. State

DecidedJuly 14, 2005

Docket07-03-00525-CR

StatusPublished

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John Blackwell v. State, (Tex. Ct. App. 2005).

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Opinion

NO. 07-03-0525-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 14, 2005

______________________________

JOHN BLACKWELL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-401671; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

_______________________________

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

MEMORANDUM OPINION

Following a plea of not guilty, appellant John Blackwell was convicted by a jury of possession of a controlled substance and sentenced to ten years confinement. By three points of error, appellant contends (1) the evidence of the controlled substance should not have been admitted because it was obtained as the result of an unlawful search and seizure, (2) the evidence is legally and factually insufficient to allow a jury to conclude he intentionally or knowingly possessed a controlled substance, and (3) the trial court erred in including an instruction in the charge on the law of parties. We affirm.

Appellant was arrested and charged with possession of a controlled substance after several rocks of cocaine were discovered in his vehicle during a traffic stop. The incident occurred in the early morning hours of December 7, 2002, when Officer Nathan Anderson observed appellant and two men leaving a known crack house and getting into appellant's vehicle. Based on his knowledge of the area, the officer immediately became suspicious and began following the vehicle. After witnessing a turn signal violation, he initiated a traffic stop to investigate. As the officer approached the men, the front passenger exited the vehicle and began to walk away. Officer Anderson immediately drew his weapon and ordered the man back into the car. He then placed the man inside his patrol car while he made contact with appellant.

Upon confronting appellant, Officer Anderson requested identification and inquired into the men's suspicious activities. Appellant produced an identification card. However, suspicious of his behavior, Officer Anderson searched appellant's person for weapons and placed him inside his patrol car along with the front passenger. There, appellant was presented and signed a consent-to-search form. After obtaining consent, the officer returned to appellant's vehicle, removed the rear passenger, and searched the vehicle for contraband. He discovered one rock of cocaine in the center console, two rocks under the front passenger seat, and one rock on the rear seat. All three men were arrested and charged with possession of a controlled substance.

By his first point of error, appellant contends the cocaine evidence should have been excluded because it was obtained as the result of an unlawful search and seizure when the officer converted the traffic stop into a drug interdiction stop. He also argues the officer used the illegal extension of the traffic stop to obtain permission to search his vehicle. We disagree.

To preserve error for appellate review, a party must make a timely request, objection, or motion sufficient to make the trial court aware of his complaint and obtain a ruling. Tex. R. App. P. 33.1(a). If an objection is made, a party must object each time the inadmissible evidence is offered or obtain a running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex.Cr.App. 2003). Appellant did not make a motion to suppress the evidence and did not object to the admission of the evidence at trial. Consequently, appellant's first point of error presents nothing for review and is overruled.

By his second point, appellant maintains the evidence is legally and factually insufficient to allow a jury to conclude he intentionally or knowingly possessed the cocaine found in the vehicle. We disagree.

When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004-05); Tex. Pen. Code Ann. § 2.01 (Vernon 2003).

In conducting a legal sufficiency review, we must determine 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, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). This standard is the same in both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Cr.App. 2001). We conduct this analysis by considering all the evidence before the jury--whether proper or improper--so that we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). We must uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).

After conducting a legal sufficiency review under Jackson, we may proceed with a factual sufficiency review. Clewis, 922 S.W.2d at 133. Under this standard, we view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). We must determine after considering all the evidence in a neutral light, whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004). In our review, we do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of the witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App. 1992).

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