IN THE TENTH COURT OF APPEALS
No. 10-11-00212-CR
KEVIN SIMMONS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 13th District Court Navarro County, Texas Trial Court No. 31924-CR
MEMORANDUM OPINION
Appellant, Kevin Alan Simmons, appeals from his conviction for unlawful
possession of a controlled substance over four grams but less than 200 grams with
intent to deliver, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. §
481.112(a), (d) (West 2010). In four issues, Simmons argues that: (1) the evidence is
insufficient to support his conviction; (2) the trial court erred in denying his request for
an instruction on a lesser-included offense; (3) the trial court erred in denying his motion to suppress; and (4) the trial court erred in overruling his objection to the State’s
closing argument. We affirm.
I. BACKGROUND
At approximately 8:30 p.m. on February 25, 2008, Corsicana Police Department
Sergeant Paul Jock observed a maroon, four-door Honda sedan roll through a stop sign
in Navarro County, Texas. Sergeant Jock activated the overhead lights on his police
cruiser and subsequently stopped the vehicle. Sergeant Jock made contact with the
driver of the vehicle, Simmons. When he approached the driver’s-side window,
Sergeant Jock smelled burnt marihuana. Simmons testified that he and his passenger,
William Henry, were smoking a joint at the time of the alleged traffic violation and that
he threw the joint out of the window just prior to being stopped by Sergeant Jock.
Because he smelled burnt marihuana emanating from the vehicle, Sergeant Jock ordered
Simmons and Henry to exit the vehicle so that the vehicle could be searched. However,
prior to searching the vehicle, Sergeant Jock patted down Simmons and Henry and
called for backup. No weapons or drug paraphernalia was found on either Simmons’s
or Henry’s person. When Officer Scott Tidwell arrived at the scene, Sergeant Jock
searched Simmons’s vehicle. In the front passenger-side floorboard, Sergeant Jock
found a Doritos bag that had a rubber band around the top. Inside the Doritos bag was
a plastic bag which contained a white, powdery substance that Sergeant Jock believed
to be cocaine. Sergeant Jock field-tested the substance and determined that the weight
of the substance, including the packaging, was approximately seven grams. Simmons
Simmons v. State Page 2 claimed ownership of the cocaine and later gave a written statement confirming that
fact.
Simmons was charged by indictment with unlawful possession of a controlled
substance over four grams but under 200 grams with intent to deliver. See id. §
481.112(a), (d). Prior to trial, Simmons orally moved to suppress evidence obtained as a
result of the traffic stop. In particular, Simmons argued that there was no probable
cause for the traffic stop and that Sergeant Jock failed to properly warn Simmons prior
to taking his written statement. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005).
The trial court denied Simmons’s motion to suppress, and the jury trial in this matter
commenced. At the conclusion of the evidence, the jury found Simmons guilty of the
charged offense and assessed punishment at twenty years’ incarceration in the
Institutional Division of the Texas Department of Criminal Justice. The trial court
certified Simmons’s right to appeal, and this appeal followed.
II. MOTION TO SUPPRESS
In his third issue, Simmons asserts that the trial court erred in denying his
motion to suppress the written statement he made to police. In particular, Simmons
argues that the written statement he made to police was not voluntary because it was
obtained as a result of a threat or promise to not arrest the other passenger in the car—
Henry.
Prior to trial and outside the presence of the jury, Simmons orally moved to
suppress evidence obtained as a result of the traffic stop. Both Simmons and the
arresting officer, Sergeant Jock, testified at the hearing on Simmons’s oral motion to
Simmons v. State Page 3 suppress. At the conclusion of the testimony, Simmons argued that the complained-of
evidence should be suppressed because the evidence did not demonstrate that: (1) a
traffic violation occurred, which amounted to an invalid traffic stop; and (2) Sergeant
Jock read Simmons the required warnings enumerated in article 38.22 of the code of
criminal procedure prior to taking his written statement. See TEX. CODE CRIM. PROC.
ANN. art. 38.22.
Simmons did not argue in the trial court that his written statement was
involuntary because it was obtained as a result of Sergeant Jock’s alleged threat or
promise to arrest Henry. Thus, Simmons’s complaint on appeal does not comport with
his objection in the trial court. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d
346, 349 (Tex. Crim. App. 2002) (stating that a complaining party must make a timely
and specific objection to preserve error for appellate review); see also Wright v. State, 154
S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d) (noting that points of error on
appeal must correspond or comport with objections and arguments made at trial)
(citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998))). “Where a trial
objection does not comport with the issue raised on appeal, the appellant has preserved
nothing for review.” Wright, 154 S.W.3d at 241; see Ibarra v. State, 11 S.W.3d 189, 197
(Tex. Crim. App. 1999). Accordingly, we overrule Simmons’s third issue.
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Simmons argues that the evidence supporting his conviction is
insufficient. We disagree.
A. Applicable Law
Simmons v. State Page 4 The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2792-93. Further, direct and circumstantial evidence are treated equally:
"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 v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the
factfinder is entitled to judge the credibility of witnesses and can choose to believe all,
some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d
459, 461 (Tex. Crim. App. 1991).
Simmons v. State Page 5 The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically-correct jury charge,
the State was required to prove beyond a reasonable doubt that Simmons: (1)
knowingly (2) possessed, (3) with intent to deliver, (4) four grams or more but less than
200 grams of cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d).
In satisfying its burden of proof, the State was required to prove beyond a
reasonable doubt that Simmons exercised actual care, custody, control, or management
over the cocaine and knew the material possessed was contraband. See Taylor v. State,
106 S.W.3d 827, 830 (Tex. App.—Dallas 2003, no pet.). The State was also required to
prove beyond a reasonable doubt that Simmons possessed the cocaine with intent to
deliver. Id. Intent to deliver may be established by expert testimony, such as testimony
from experienced law enforcement, and circumstantial evidence, such as evidence of an
accused’s possession of the contraband. See Moreno v. State, 195 S.W.3d 321, 325 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d); Patterson v. State, 138 S.W.3d 643, 650 (Tex.
App.—Dallas 2004, no pet.) (stating that “intent to deliver” can be proved by
circumstantial evidence, such as the quantity of drugs possessed, the manner of
packaging, and the presence of the accused on the premises); see also Terrell v. State, No.
10-11-00022-CR, 2011 Tex. App. LEXIS 5605, at *7 (Tex. App.—Waco July 20, 2011, pet.
ref’d) (mem. op., not designated for publication). Further, intent to deliver is a fact
question for the trier of fact to resolve, and it may be inferred from the acts, words, or
conduct of the accused. See Taylor, 106 S.W.3d at 831.
Simmons v. State Page 6 B. Discussion
Here, Simmons admitted that the cocaine was his. Moreover, Sergeant Jock
testified that he field-tested the cocaine seized from Simmons’s vehicle and that the
cocaine, including the packaging, weighed approximately seven grams. Starla
Copeland, a forensic scientist with the Texas Department of Public Safety (“DPS”)
Crime Laboratory in Waco, Texas, noted that the cocaine seized by Sergeant Jock was
sent to her crime laboratory and that Kerry O’Brick conducted several tests on the
substance. O’Brick is no longer an employee at the crime lab; instead, Copeland
testified about the testing of the cocaine while relying on O’Brick’s notes. As a result of
the testing, it was determined that the substance was 6.33 grams of cocaine. O’Brick’s
notes allegedly contained a notation that “a plastic bag, plastic packaging, Dorito’s [sic]
bag, then a plastic bag, and then it would be the rock substance” were received from
Sergeant Jock. Copeland specifically stated that it was against the policy of DPS to
include the packaging when weighing the substance, though she admitted that she did
not have personal knowledge whether O’Brick included the packaging when weighing
the substance.
Despite Sergeant Jock’s testimony that the cocaine and the packaging weighed
approximately seven grams and Copeland’s testimony that the cocaine itself weighed
6.33 grams, Simmons argues that the evidence is insufficient to establish that the cocaine
weighed more than four grams. In making this assertion, Simmons speculates that
O’Brick may have included the packaging when weighing the cocaine and that the
cocaine could have possibly weighed less than four grams. We do not find any
Simmons v. State Page 7 evidence in the record to support Simmons’s speculations. Copeland clearly testified
that it was against DPS policy to include the packaging when weighing the cocaine and
that the cocaine weighed 6.33 grams. Furthermore, Sergeant Jock stated that the cocaine
and the packaging weighed approximately seven grams together. The testimony of
Sergeant Jock and Copeland undermines Simmons’s assertion that the cocaine could
have weighed less than four grams. Nevertheless, to the extent that there is a conflict in
the testimony, we must presume that the jury resolved the conflicts in favor of its
verdict and therefore defer to that determination. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2792-93.
Simmons also asserts that the evidence is insufficient to demonstrate that he had
intent to deliver the cocaine found in the vehicle. Elmer Tanner, a Captain with the
Criminal Investigation Division, including narcotics, for the Navarro County Sheriff’s
Department, testified as an expert witness regarding narcotics investigations and
possession-with-intent-to-deliver cases in Navarro County. Captain Tanner stated that,
based on the amount alone and his thirteen years of narcotics enforcement, 6.33 grams
of cocaine would be a dealer amount in Navarro County. Captain Tanner further noted
that the plastic bag seized from Simmons’s vehicle contained several different sizes of
cocaine rocks, which led him to believe that the bigger rocks were going to be cut and
sold in smaller quantities. Captain Tanner opined that the amount possessed by
Simmons was “not something that somebody is just going to possess for their own
personal use” and that Simmons likely intended to deliver the cocaine.
Simmons v. State Page 8 Simmons called his own expert witness—Coy West—on the issue of whether the
amount of cocaine seized from Simmons’s vehicle indicated an intent to deliver. West,
now employed by SynTech Forensic Consultants, previously served as Chief Deputy of
the Hill County Sheriff’s Department and testified that it was his responsibility to
supervise narcotics detectives for approximately nine years. Based on his brief
examination of the case file, West disagreed with Captain Tanner’s conclusion that the
amount of cocaine seized indicated an intent to deliver. West pointed out that police
did not obtain any other evidence indicating an intent to deliver, including, among
other things, ledgers, scales, money, and cutting instruments. Based on his review of
the evidence, West believed that Simmons was not guilty of the charged offense, a first-
degree felony; instead, West noted that Simmons was guilty of a second-degree felony,
unlawful possession of a controlled substance greater than four grams but less than 200
grams. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (d), 481.115(d) (West 2010).
As noted earlier, it is within the province of the jury to resolve conflicts in the
evidence, and we are to defer to the jury’s resolution of those conflicts. See Chambers,
805 S.W.2d at 461; see also Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93; Lancon v. State, 253
S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—
Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s decision
regarding what weight to give contradictory testimonial evidence because the decision
is most likely based on evaluation of credibility and demeanor, which the jury is in a
better position to judge.”). In convicting Simmons of the charged offense, the jury
clearly believed Captain Tanner’s testimony and did not believe West’s assessment of
Simmons v. State Page 9 the situation; as such, we must defer to the jury’s resolution of the conflict in the
evidence. See Chambers, 805 S.W.2d at 461; see also Jackson, 443 U.S. at 326, 99 S. Ct. at
2792-93; Lancon, 253 S.W.3d at 706; Render, 316 S.W.3d at 859.
Based on Captain Tanner’s testimony and the testimony that the cocaine
weighed 6.33 grams, and because “intent to deliver” can be established by
circumstantial evidence of, among other things, the quantity of drugs possessed, we
conclude that a rational juror could have concluded that the State proved beyond a
reasonable doubt that Simmons unlawfully possessed more than four grams but less
than 200 grams of cocaine with an intent to deliver. See TEX. HEALTH & SAFETY CODE
ANN. 481.112(a), (d); see also Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We
therefore hold that the evidence is sufficient to support Simmons’s conviction. See
Lucio, 351 S.W.3d at 894; see also Hooper, 214 S.W.3d at 13. Accordingly, we overrule his
first issue.
IV. LESSER-INCLUDED-OFFENSE INSTRUCTION
In his second issue, Simmons alleges that the trial court erred in refusing to give
an instruction on the lesser-included offense of possession of a controlled substance
over one gram but less than four grams because the evidence adduced at trial
demonstrated that the amount of the cocaine seized may have been less than four
grams.
An offense qualifies as a lesser-included offense of the charged offense if: (1) it is
established by proof of the same or less than all the facts required to establish the
Simmons v. State Page 10 commission of the offense charged; (2) it differs from the offense charged only in that a
less serious injury or risk of injury to the same person, property, or public interest
suffices to establish the commission of the offense; (3) it differs from the offense charged
only in that a less culpable mental state suffices to establish its commission; or (4) it
consists of an attempt to commit the offense charged or an otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). To determine whether a defendant
is entitled to an instruction on a lesser-included offense, the court conducts a two-
pronged test. See Ex parte Watson, 306 S.W.3d 259, 272-73 (Tex. Crim. App. 2009); Hall v.
State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first prong of the test requires
the court to use the “cognate pleadings” approach to determine whether an offense is a
lesser-included offense of another offense. The first prong is satisfied if the indictment
for the greater-inclusive offense either: “(1) alleges all of the elements of the lesser-
included offense, or (2) alleges elements plus facts (including descriptive averments,
such as non-statutory manner and means, that are alleged for purposes of providing
notice) from which all of the elements of the lesser-included offense may be deduced.”
Ex parte Watson, 306 S.W.3d at 273.
Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.
Id. This inquiry is a question of law. Hall, 225 S.W.3d at 535.
Simmons v. State Page 11 The second prong asks whether there is evidence that supports giving the lesser-
included-offense instruction to the jury. Id. at 536. A defendant is entitled to a
requested instruction on a lesser-included offense when the proof for the charged
offense subsumes the proof required to establish the lesser-included offense and some
evidence in the record would permit a rational jury to find that if the defendant is
guilty, he is guilty only of the lesser-included offense. Id. Anything more than a
scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. A
lesser-included-offense instruction is required when the evidence establishes the lesser-
included offense as a valid, rational alternative to the charged offense. Id. Moreover, in
analyzing the second prong, “[t]he evidence must be evaluated in the context of the
entire record.” Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
B. Discussion
As noted earlier, there is no evidence to support Simmons’s speculation that the
cocaine weighed more than four grams because of the packaging. In fact, there is no
evidence in the record separately indicating the weight of the packaging. Furthermore,
Copeland stated that it was against DPS policy to weigh the packaging with the cocaine
and that the cocaine weighed 6.33 grams. Because there is no evidence demonstrating
that the cocaine weighed less than four grams and because we have affirmed
Simmons’s conviction for unlawful possession of a controlled substance more than four
grams but less than 200 grams with intent to deliver, we cannot conclude that the trial
court erred in denying Simmons’s request for an instruction on the lesser-included
offense of unlawful possession of a controlled substance over one gram but less than
Simmons v. State Page 12 four grams. See Ex parte Watson, 306 S.W.3d at 272-73; Hall, 225 S.W.3d at 535-36.
Accordingly, Simmons’s second issue is overruled.
V. THE STATE’S CLOSING ARGUMENT
In his fourth issue, Simmons contends that the trial court erred in overruling his
objection to the State’s closing argument, which allegedly touched on evidence outside
the record and insinuated that Simmons had been using children to sell drugs for him.
The State counters that its closing argument was a reasonable deduction from the
evidence because the prosecutor merely mentioned to the jury that Simmons, a
convicted drug dealer, had access to children.
Proper jury argument must encompass one of the following: (1) a summation of
the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3)
an answer to the opposing counsel’s argument; or (4) a plea for law enforcement. Brown
v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Guidry v. State, 9 S.W.3d 133, 154
(Tex. Crim. App. 1999). To determine whether a party’s argument properly falls within
one of these categories, we must consider the argument in light of the entire record.
Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); see
Brown, 270 S.W.3d at 570 (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App.
1988)). “It is the duty of trial counsel to confine their arguments to the record; reference
to facts that are neither in evidence nor inferable from the evidence is therefore
improper.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973); see Brown, 270
S.W.3d at 570.
Simmons v. State Page 13 B. Discussion
Simmons’s fourth complaint centers on the following statements made by the
prosecutor during closing argument at the punishment phase:
[The State]: He’s around kids. That’s another thing I want to talk to you about. People may not know him—I mean, and there’s very, very good families out there that have bad people, and no one’s saying the Henrys are bad people and no one’s definitely saying the Simmonses are bad people. They love their—their— their relatives. But they can’t be held responsible for what their relatives [do]. They’re a good family. But that doesn’t change the fact that good families have bad people in them. And good families do what they can to help. And that’s what they did when they got up on the stand.
But I submit to you that, they presented it as a good thing that he was working with the youth basketball, like that was some kind of benefit to his character that was good. A drug dealer working around kids is a bad thing no matter what. We don’t know what he was doing with those kids. He was coaching them. We don’t know that he wasn’t getting them to work for him.
[Defense counsel]: Your Honor, I’m going to object, that’s an argument way beyond the evidence.
[The State]: That’s a reasonable deduction from the evidence, Judge.
[THE COURT]: I’ll—I’ll overrule the objection.
[The State]: Thank you, Judge. We don’t know that he wasn’t getting those kids out there to work for him. But he argues like being around kids is a good thing.
During the punishment phase, Simmons called numerous friends and family
members to testify that he was a “good guy” and a family man. Several witnesses
Simmons v. State Page 14 stated that Simmons was an assistant coach for a Little Dribblers basketball team
comprised of eleven, twelve, and thirteen-year-old children to show that he is good
with children. The prosecutor’s statements during closing argument properly
summarized and provided an answer to the punishment-phase testimony that Simmons
was a “good guy” and a family man who is good with children. See Brown, 270 S.W.3d
at 570; see also Guidry, 9 S.W.3d at 154. Moreover, the jury had already convicted
Simmons of unlawful possession of a controlled substance with intent to deliver, and
the prosecutor’s statements also constituted a reasonable deduction from the
evidence—that Simmons has regular contact with children and that those children are
at risk in light of Simmons’s conviction. See Brown, 270 S.W.3d at 570, 572 (citing Gaddis
v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) (“Counsel is allowed wide latitude
without limitation in drawing inferences from the evidence so long as the inferences
drawn are reasonable, fair, legitimate, and offered in good faith.”)). We therefore
conclude that the prosecutor’s statements fall with the realm of proper jury argument.
See Brown, 270 S.W.3d at 570; see also Guidry, 9 S.W.3d at 154. We overrule Simmons’s
fourth issue.
VI. CONCLUSION
Having overruled all of Simmons’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS Justice
Simmons v. State Page 15 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 23, 2012 Do not publish [CR25]
Simmons v. State Page 16