Patrick Brandon Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 22, 2022
• Docket: 06-21-00086-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-21-00086-CR

PATRICK BRANDON, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 47992-A

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

In two companion cases on appeal, Patrick Brandon stands convicted of numerous

offenses arising from the same criminal episode involving a controlled substance in a high-crime

area in Gregg County.1 In the case appealed here, Brandon asserts that the evidence was

insufficient to establish that he intended to deliver the drugs found in his possession, that the

State improperly exercised peremptory strikes to remove two of the three African American

panel members from the jury strike zone, and that various fines, costs, and fees were improperly

assessed against him. In the companion case arising from the same trial, we address in detail the

jury strike issue and those regarding the fines, costs, and fees of which Brandon complains.

We (a) modify the judgments and bill of costs in this case to strike (i) improperly

cumulative fines and (ii) improperly assessed time payment fees; (b) modify the judgments to

reflect that Brandon pled “true” to the State’s enhancement paragraph; and (c) affirm the

judgments, as modified. We reach that result because, as we explain below, (1) sufficient

evidence supported the intent-to-deliver element of Brandon’s conviction, (2) fines should not be

cumulated on offenses arising from the same episode, (3) assessing a time payment fee was

premature, and (4) we must modify the judgment to reflect that Brandon pled “true” to the

State’s enhancement paragraph.

1 In this case, Brandon was found guilty of possession of a controlled substance with intent to deliver, possession of a controlled substance, and unlawful possession of a firearm by a felon and was sentenced to twenty years, five years, and ten years, respectively, in accordance with the jury’s recommendations. During the same trial, Brandon was convicted of aggravated robbery and sentenced to sixty years’ imprisonment. He appeals that judgment of conviction in our cause number 06-21-00085-CR. 2 (1) Sufficient Evidence Supported the Intent-to-Deliver Element of Brandon’s Conviction

Notwithstanding Brandon’s assertion that the State did not provide sufficient evidence to

establish his intent to deliver the drugs, there was sufficient evidence.

A couple of hours after midnight in early May 2018, patrol officer Danny Isonhood2 was

on duty in a neighborhood known for its high crime rate, including “a lot of narcotics, thefts,”

and similar activity. After seeing a vehicle driven by Brandon run a stop sign, Isonhood stopped

the vehicle after a brief high-speed chase. Isonhood testified to various suspicious facts he

observed, including facts that the vehicle was a rental car with temporary tags that Brandon said

had been rented by Brandon’s brother.3 According to Isonhood, rental cars with temporary tags

were often used to transport illegal drugs.

Isonhood smelled marihuana coming from inside of Brandon’s vehicle. Brandon was

slow in responding to Isonhood’s instruction to exit the vehicle. When he finally did, Isonhood

saw a baggie toward the center console containing, what he believed to be, narcotics and

marihuana, at which time, Brandon was arrested. In searching Brandon incident to arrest,

Isonhood found cash, some receipts, and some multi-colored pills ultimately determined to be

methamphetamine, weighing 6.9 grams. The pills had logos, stars, and hand grenades on them,

which, according to Isonhood, was a way for the sellers to identify themselves to potential

buyers. In Isonhood’s experience, 6.9 grams of methamphetamine was not a personal use

amount. In addition, Isonhood located Alprazolam or Xanax wrapped in a sandwich bag in the

2 Isonhood was a detective at the time of trial. 3 Isonhood found no documentation in the vehicle to support Brandon’s assertion that his brother had rented the vehicle. 3 center console. At that point, the officers began to wonder whether Brandon might have been

involved in a bank robbery that had just happened, so they stopped searching and contacted a

supervisor.4 The officers contacted a tow truck, which subsequently arrived to transport the

vehicle to the Longview Police Department (LPD) secured yard.

Officer Heath DeGarmo testified similarly, including that, in Brandon’s vehicle, he found

narcotics, marihuana, and a “clear baggie that had a white powdery substance that [he] believed

to be powder cocaine.” In addition, he found a large amount of money in the console, some of

which was banded, but “[t]here was also loose money throughout.” According to DeGarmo, a

loaded Taurus 9-millimeter pistol was found beneath the driver’s seat and was easily accessible

to the driver. DeGarmo also found a gray T-shirt in the center console. The officers also located

the note that was believed to have been used in the bank robbery, along with some red shoes. In

this instance, the money was found in the same center console as the cocaine

Robert John Prince, Jr., a forensic scientist with the Texas Department of Public Safety

crime laboratory in Tyler, Texas, testified that the cocaine weighed 1.63 grams and the

methamphetamine pills came to a weight of over four grams.

In evaluating legal sufficiency in this case, we must consider all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found,

beyond a reasonable doubt, that Brandon was guilty of the offense of possession of a controlled

substance with intent to deliver. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

4 During a briefing, the officers had been given a description of a silver vehicle and a photograph of the bank robbery suspect wearing a gray T-shirt with red writing on it. Isonhood stated that, when he stopped Brandon, he had been wearing a T-shirt similar to the one in the photograph. 4 2010) (plurality op.) (citing Jackson v. Virginia, 433 U.S. 307, 319 (1979); Hartsfield v. State,

305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency under the direction of

the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318–19). We afford almost total deference to a jury’s credibility determinations.

Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). An appellate court may not re-

evaluate the weight and the credibility of the evidence or substitute its judgment for that of the

fact-finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Circumstantial evidence is as probative as direct evidence, and it can be sufficient alone

in establishing guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “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, 241 S.W.3d at 13.

“Evidence is legally insufficient when the ‘only proper verdict’ is acquittal.” Nelson v. State,

405 S.W.3d 113, 122 (Tex. App—Houston [1st Dist.] 2013, pet. ref’d) (quoting Tibbs v. Florida,

457 U.S. 31, 41–42 (1982)).

Finally, legal sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. Sate, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). The hypothetically correct jury charge “sets out the law, is authorized by the

5 indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

In this case, the issue before us is whether the State met its burden of proving Brandon’s

intent to deliver the methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112.

Intent to deliver may be established by circumstantial evidence. Williams v. State, 902 S.W.2d

505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Expert testimony by experienced

law enforcement officers may be used to show intent to deliver. Mack v. State, 859 S.W.2d 526,

529 (Tex. App.—Houston [1st Dist.] 1993, no pet.). In addition, the following factors are

relevant to the question of intent to deliver: (1) the nature of the place where the defendant was

arrested; (2) the quantity of controlled substance possessed by the defendant; (3) the manner of

packaging; (4) the presence of drug paraphernalia; (5) the defendant’s possession of a large

amount of cash; and (6) the defendant’s status as a drug user. Williams, 902 S.W.2d at 507. The

number of factors present is not as important as the logical force the factors have in establishing

the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d). However, more facts than mere presence near the drugs are required,

particularly when there are many people present or in possession of the premises. Estrada v.

State, 643 S.W.2d 753, 756 (Tex. App.—San Antonio 1982, no pet.).

While the State presented a lab report that established the weight of the drugs, it also

offered photographs of the drugs and elicited testimony from at least two witnesses regarding the

quantity of drugs. In addition, Isonhood testified that the amount of methamphetamine

6 recovered from Brandon’s vehicle was not a user amount but, instead, was a dealer amount. He

also testified that Brandon was driving a rental car, which, in his experience, was the

transportation choice for drug dealers.

DeGarmo found marihuana and cocaine in Brandon’s car. In addition, he located a

loaded Taurus 9-millimeter pistol underneath the driver’s seat, which was easily accessible to

Brandon. DeGarmo testified that drug users sometimes carry firearms in their cars for

protection, but he also said that drug dealers often carry them as well.

Further, Brandon was arrested in what was described as a high-crime neighborhood,

which included areas where there were “a lot of narcotics.” As mentioned above, the pills had

images on them that evidenced marketing intent.

Of the significant amount of cash found in Brandon’s vehicle, some was banded, some

was loose, and it was in several different denominations. As the fact-finders, it was the jurors’

job to decide whether they believed the money was taken during the robbery, was a result of drug

sales, or was a combination of both. Regardless, “[t]he number of factors present is not as

important as the logical force the factors have in establishing the elements of the offense.” See

Gilbert, 874 S.W.2d at 298. Consequently, we find that there was sufficient evidence to support

the jury’s determination that Brandon possessed the methamphetamine with the intent to deliver

it.

We overrule this point of error.

7 (2) Duplicative Court Costs Must Be Deleted

Brandon also contends that the trial court erred by assessing court costs in both the

judgment in this cause that resulted from Brandon’s conviction of possession of a controlled

substance with the intent to deliver and the judgment on appeal in cause number 06-21-00085-

CR. We agree.

A trial court, in a judgment of conviction, must order the criminal defendant to pay court

costs. TEX. CODE CRIM. PROC. ANN. art. 42.16 (applicable when punishment is anything “other

than a fine”); Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Article 102.073 of

the Texas Code of Criminal Procedure provides:

(a) In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.

(b) In a criminal action described by Subsection (a), each court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant’s convictions.

(c) This article does not apply to a single criminal action alleging only the commission of two or more offenses punishable by fine only.

TEX. CODE CRIM. PROC. ANN. art. 102.073. Simply stated, when a defendant is convicted of two

or more offenses in a single criminal action,5 the trial court must assess each court cost or fee

only once against that defendant. TEX. CODE CRIM. PROC. ANN. art. 102.073(a); see Cain v.

State, 525 S.W.3d 728, 733–34 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (trial court

5 “In a single criminal action” has been construed to mean allegations and evidence of two or more offenses that are presented in a single trial or plea proceeding. See Hurlburt v. State, 506 S.W.3d 199, 201–03 (Tex. App.—Waco 2016, no pet.). Here, there is no dispute that the two separate cases against Hill were tried in a single criminal action. 8 erred in assessing “identical overlapping” or duplicative costs against defendant). When a trial

court erroneously assesses duplicative court costs or fees for multiple convictions tried in a

single criminal action, we retain court costs for the offense of the highest category.6 TEX. CODE

CRIM. PROC. ANN. art. 102.073(b).

Here, because Brandon was convicted of two or more offenses in a single criminal action,

the trial court could order payment of fees and court costs only once. See TEX. CODE CRIM.

PROC. ANN. art. 102.073(a); Cain, 525 S.W.3d at 733–34. The State agrees that Brandon should

not be assessed fees and court costs in both causes, but it disputes Brandon’s contention that the

fees and court costs should be deleted from the judgment on appeal in cause number 06-21-

00085-CR rather than the judgment at issue in this cause. We agree with the State.

The record shows that Brandon was assessed fees and costs in the amount of $330.00 in

the aggravated-robbery conviction. In the judgment at issue here, for possession of a controlled

substance with intent to deliver, the trial court assessed fees and costs in the amount of $390.00.7

The State is entitled to all properly assessed fees and costs, but it may not recover duplicative

costs. Because the trial court assessed a higher amount of fees and court costs in this case, the

State is entitled to $390.00 in fees and costs.

6 Brandon was convicted of a first-degree offense in each case—aggravated robbery and possession of a controlled substance with intent to deliver. 7 The trial court did not assess court costs and fees against Brandon relating to his convictions of simple possession of a controlled substance or unlawful possession of a firearm by a felon. 9 We sustain Brandon’s point of error to the extent that the assessment of duplicative fees

and costs was error, but that point of error is of no consequence in this appeal.8

(3) Fines Should Not Be Cumulated on Offenses Arising from the Same Episode

In another point of error, Brandon contends that the trial court erred when it ordered fines

in each of his cases but stacked the fines.9

In its judgment of conviction of aggravated robbery, the trial court ordered Brandon to

pay a fine of $10,000.00 (on appeal in our cause number 06-21-00085-CR). In the judgments on

appeal in this cause, it also ordered Brandon to pay (1) a $10,000.00 fine on his conviction of

possession of a controlled substance with intent to deliver (referred to as Count I in the clerk’s

bill of costs), (2) a $5,000.00 fine on his conviction of possession of a controlled substance

(referred to as Count II in the clerk’s bill of costs), and (3) a $10,000.00 fine on his conviction of

unlawful possession of a firearm by a felon (referred to as Count III in the clerk’s bill of costs).10

The trial court did not order the fines in each case to run concurrently.

The Texas Penal Code requires sentences for offenses arising out of the same criminal

episode that are prosecuted in a single criminal action to be served concurrently. TEX. PENAL

CODE ANN. § 3.03(a) (Supp.). When a trial court orders sentences to run concurrently, the

judgment should not reflect a cumulated fine. See State v. Crook, 248 S.W.3d 172, 177 (Tex.

Crim. App. 2008) (holding that the concurrent sentence provision in Section 3.03 applies to the

8 We sustain Brandon’s point of error, but we modify the judgment of conviction of aggravated robbery in trial court cause number 47754-A, appellate cause number 06-21-00085-CR, by deleting the assessment of $330.00 in costs and fees in the judgment and in the bill of costs associated with that judgment. 9 The State did not respond to this issue. 10 These three convictions were tried under trial court cause number 47992-A. 10 entire sentence, including fines); see also Habib v. State, 431 S.W.3d 737, 742 (Tex. App.—

Amarillo 2014, pet. ref’d) (deleting cumulated fine from second judgment).

Accordingly, we delete the following fines from the judgments of conviction and the bill

of costs at issue in this appeal: (1) the $10,000.00 fine on Brandon’s conviction of possession of

a controlled substance with intent to deliver (Count I), (2) the $5,000.00 fine on his conviction of

possession of a controlled substance (Count II), and (3) the $10,000.00 fine on his conviction of

unlawful possession of a firearm by a felon (Count III). The fine of $10,000.00 on Brandon’s

conviction of aggravated robbery at issue in our cause number 06-21-00085-CR remains in that

judgment of conviction and in the clerk’s bill of costs.

(4) The Time Payment Fee Was Premature and Must Be Deleted

In another point of error, Brandon maintains that the trial court erred when it assessed a

time payment fee in this case. We agree.

The Texas Court of Criminal Appeals has recently concluded that a time payment fee like

the one imposed in this case “must indeed be struck for being prematurely assessed because a

defendant’s appeal suspends the duty to pay court costs and therefore suspends the running of the

clock for the purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 129 (Tex.

Crim. App. 2021). “As a consequence, even now, assessment of the time payment fee in this

case would be premature because appellate proceedings are still pending.” Id. The State

concedes this point.11

11 Brandon also argues that the time payment fee statute is unconstitutional. Because we have found that the assessment of the time payment fee was premature, we decline to address that argument. 11 Brandon asks this Court to delete the $15.00 time payment fee (included as part of the

total costs) from the clerk’s bill of costs. A time payment fee in the amount of $15.00 was

included as a part of the $390.00 court costs assessed against Brandon as a result of his

conviction of possession of a controlled substance with intent to deliver. Because that fee was

prematurely assessed, it must be deleted from the judgment of conviction and the bill of costs

associated with it.12

Accordingly, we sustain Brandon’s fourth point of error.

(5) We Must Modify the Judgment to Reflect that Brandon Pled “True” to the State’s Enhancement Paragraph

We have the authority to modify the judgment to make the record speak the truth, even if

a party does not raise the issue. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609

(Tex. Crim. App. 1992). “Our authority to reform incorrect judgments is not dependent on the

request of any party, nor does it turn on a question of whether a party has or has not objected in

the trial court; we may act sua sponte and may have a duty to do so.” Rhoten v. State, 299

S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.) (citing Asberry v. State, 813 S.W.2d

526, 531 (Tex. App.—Dallas 1991, pet. ref’d)).

In this case, the trial court’s judgment erroneously reflects that Brandon pled “not true” to

the State’s enhancement paragraph. In fact, he pled “true” to the allegation. Where there is no

reversible error, we have the authority to modify judgments and affirm, as modified. Walker v.

12 Although the trial court did not assess court costs in Brandon’s judgment of conviction of simple possession of a controlled substance or in his judgment of conviction of unlawful possession of a firearm by a felon, there were three identical bills of costs in the record, each in the amount of $25,390.00. They appear immediately following each of the judgments of conviction. Any modification that has been ordered herein is applicable to all three of the bills of costs. 12 State, 557 S.W.3d 678, 690 (Tex. App.—Texarkana 2018, pet. ref’d). We modify the trial

court’s judgment by changing Brandon’s plea to the State’s enhancement paragraph from not

true to true.

For the reasons stated herein, we modify the trial court’s judgments and the bill of costs

by deleting (1) the $10,000.00 fine in the judgment of conviction of possession of a controlled

substance with the intent to deliver (Count I), (2) the $5,000.00 fine in the judgment of

conviction of possession of a controlled substance (Count II), (3) the $10,000.00 fine in the

judgment of conviction of unlawful possession of a firearm by a felon (Count III), and (4) the

$15.00 time payment fee contained in the total costs in the judgment of conviction of possession

of a controlled substance with intent to deliver and the bill of costs associated with it. We also

modify Brandon’s judgment of conviction of possession of a controlled substance with the intent

to deliver (Count I) to reflect that Brandon pled “true” to the State’s enhancement paragraph

rather than “not true.” We affirm the judgment, as modified.

Josh R. Morriss, III Chief Justice

Date Submitted: April 5, 2022 Date Decided: June 22, 2022

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