Terrance M. Johns v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00123-CR
Terrance M. JOHNS,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-0164
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: November 21, 2007

 

AFFIRMED AS REFORMED

A jury found appellant, Terrance M. Johns ("Johns"), guilty of Possession of a Controlled Substance with Intent to Deliver (Count I) and Possession of a Controlled Substance (Count II); punishment was assessed as confinement for eight and one-half years and four years, respectively.

In two issues on appeal, Johns contends that: 1) the evidence is factually insufficient to link him to the cocaine; and 2) the trial court abused its discretion in admitting evidence of firearms because the danger of unfair prejudice substantially outweighed the probative value, if any, of this evidence. We affirm the judgment as reformed.

Background

On November 29, 2004, San Antonio Police Department ("SAPD") Detectives Gene Valdez ("Valdez") and William Garcia ("Garcia"), were conducting surveillance on a suspected crack house located within the city limits. Based on information received, the owner of the residence was not in town and no one was supposed to be in the house; nevertheless, the detectives witnessed suspicious activity during their surveillance of this house. The detectives saw two women approach the house on foot, but instead of going to the front door, the women went to the window at the porch. However, the women were turned away and no transaction occurred. Surveillance continued and approximately an hour and a half later, a vehicle pulled up to the house, and the porch window was propped open. The passenger got out of the vehicle, ran up to the porch, and then ran back to the vehicle. The detective stated he did not witness a transaction on this occasion either; however, shortly after, a second vehicle pulled up to the house. The passenger of this vehicle was observed running to the porch, sticking his hands in the open window, and then running back to his vehicle.

Based upon these observations, Valdez contacted additional SAPD officers to join in conducting a "knock and talk," a procedure where the officers knock on the door and try to engage the occupants in conversation to obtain information. Valdez approached the front door, along with Detective Nick Stromboe ("Stromboe"), and observed that the window through which the transaction had occurred was wide open with the curtain pulled to one side. An unmounted surveillance camera, positioned facing the street, was sitting in the bottom left corner of this window.

Detective Valdez looked inside the window and saw a person, later identified as Johns, sitting on a couch with what appeared to Valdez to be a plate of crack cocaine at his feet. Detective Valdez explained that it is common to put crack cocaine, called a "cookie," on a dinner plate and then cut it with a razor blade into smaller pieces also referred to as "dimes", "twenties", or "fifties". The detective also observed a rifle behind Johns and a sawed-off shotgun on the floor by the love seat; both weapons were within Johns's reach. Four other persons were also in the room, and Valdez yelled at one of them to open the door. Detective Valdez remained in front of the window with his weapon drawn while Stromboe attempted to gain access through the front door, which appeared to be blocked from the inside. Valdez saw Johns jump over the couch and take off running toward the hallway.

Upon finally gaining entry into the house, Stromboe immediately pursued Johns, who had run into the bathroom. Stromboe heard the toilet flush and upon entering the bathroom, observed Johns looking into the toilet and holding an empty black bag.

Based on the plate of crack cocaine Valdez initially saw lying at Johns's feet, Johns was arrested and later convicted of Possession of a Controlled Substance with Intent to Deliver and Possession of a Controlled Substance.

I. Factual Sufficiency
Standard of Review

In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). We then determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 415. We will not reverse a case on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417.

The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Further, the jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Possession of a Controlled Substance

A person commits the offense of possession with the intent to deliver a controlled substance if he knowingly or intentionally possesses a controlled substance with the intent to deliver it. Tex. Health & Safety Code Ann. 481.112(e), 481.113(d) (Vernon Supp. 2006) (defining "possession" as "actual care, custody, control or management"). To prove unlawful possession of a controlled substance, the State must prove, either directly or circumstantially, that the defendant: (1) exercised care, control, custody, or management over the contraband; and (2) knew the matter was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). If the accused did not have exclusive control over the contraband, or was not in exclusive possession of the place where the controlled substance was found, the State must prove additional facts and circumstances, affirmatively linking the accused to the contraband in such a way that it can be concluded the accused had knowledge of the contraband and exercised control over it. Id. at 406.

Affirmative links are established when the evidence, direct or circumstantial, establishes "the accused's connection with the drug was more than just fortuitous." Id. at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Facts and circumstances that may link the accused to the contraband include: (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found; (3) whether the accused was found with a large amount of cash; (4) whether the contraband was conveniently accessible to the accused, or found where the accused was sitting; (5) whether the contraband was found in close proximity to the accused; (6) whether a strong residual odor of the contraband was present; (7) whether the accused possessed other contraband when arrested; (8) whether paraphernalia to use the contraband was in view, or found on the accused; (9) whether the physical condition of the accused indicated recent consumption of the contraband in question; (10) whether conduct by the accused indicated a consciousness of guilt; (11) whether the accused attempted to flee; (12) whether the accused made furtive gestures; (13) whether the accused had a special connection to the contraband; (14) whether the occupants of the premises gave conflicting statements about relevant matters; (15) whether the accused made incriminating statements connecting himself to the contraband; and (16) whether the accused was observed in a suspicious area under suspicious circumstances. Hargrove v. State, 211 S.W.3d 379, 386 (Tex. App.--San Antonio 2006, pet. ref'd). However, the quantity of factors present is not as critical as the logical force the factors have in establishing the elements of the crime. Id. (quoting Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd)).

 
Discussion

Johns maintains, on appeal, that the evidence is factually insufficient because it does not affirmatively link him to the crack cocaine, and he specifically argues that: (1) there was no evidence that Johns was living in the house, leasing it, or renting it; (2) Johns was not the only person found in the room and there was no evidence that Johns had any greater degree of control over the premises than any of the others; (3) although Detective Stromboe had previously dealt with one of the other persons found at the scene on a narcotics issue, and had never encountered Johns before, only Johns was arrested; (4) no money was seized from Johns; (5) there was no evidence of contraband found in the bag Johns was holding; (6) no one observed Johns in possession of the cocaine; (7) no one observed Johns pass the cocaine to anyone; (8) Johns's fingerprints were not lifted from the plate on which the cocaine was found; (9) no loose cocaine powder was seized from Johns's person; and (10) there was no evidence Johns was under the influence of cocaine.

However, although Johns claims there was no evidence affirmatively linking him to the cocaine, the record reflects that: (1) the detectives observed suspicious activity consistent with drug trafficking at a house that should have been vacant; (2) although there were four other people in the room at the time, Detective Valdez saw only Johns sitting on the couch with what appeared to Valdez to be a plate of crack cocaine at his feet; (3) when the officers made their presence known, only Johns jumped up, leaped over the sofa, and ran to the bathroom, where he was heard flushing the toilet and observed staring into the toilet as he held an empty black bag; (4) the contraband was in plain view and in close proximity to Johns; and (5) Johns was observed in a suspicious area under suspicious circumstances and displayed conduct that indicated a consciousness of guilt, including evading officers and disposing of contraband. Hargrove, 211 S.W.3d at 386.

Viewing all the evidence neutrally, the State's evidence is neither so obviously weak nor so greatly outweighed by contrary proof as to undermine confidence in the jury's determination. Watson, 204 S.W.3d at 414-15. We, therefore, conclude that the evidence of affirmative links supporting the verdict is not so weak that the verdict is clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence. See id. at 417. Accordingly, the evidence is factually sufficient to link Johns to the crack cocaine and support his conviction. Johns's first issue is overruled.

II. Evidence of Firearms

Lastly, Johns argues that the trial court abused its discretion in allowing the State to introduce evidence of the weapons found at the scene because the danger of unfair prejudice substantially outweighed the probative value, if any, of this evidence. See Tex. R. Evid. 403.

However, to preserve error for review on appeal, a defendant must object timely, specifically, and receive an adverse ruling at trial. Tex. R. App. P. 33.1(a); Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Further, the objecting party must continue to object each time the objectionable evidence is offered. Lane, 151 S.W.3d at 193 (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). A trial court's erroneous admission of evidence will not require reversal when other similar evidence was received without objection, either before or after the complained of ruling. Lane, 151 S.W.3d at 193. This rule applies whether the other evidence was introduced by the defendant or the State. Id.

Discussion

Here, the record reflects that Johns objected to the introduction of photos that allegedly depicted the weapons, arguing that their probative value was substantially outweighed by the danger of unfair prejudice. However, Johns did not object initially when several witnesses testified regarding the weapons. Additionally, Johns did not renew his objection when the officer, who was the evidence custodian for the scene, later testified to retrieving a sawed off shotgun, a box of live ammo, and a rifle from the scene. Because evidence of the weapons was received without objection, both before and after the complained of ruling, the error, if any, was cured. Id. We overrule Johns's final issue.

The Judgment

The jury found Johns guilty of Possession of a Controlled Substance with Intent to Deliver and Possession of a Controlled Substance, and assessed punishment as confinement for eight and one-half years and four years, respectively. However, the judgment of conviction states that the "COURT GIVES EFFECT TO COUNT I (GREATER) AND NOT COUNT II (LESSER)" but mistakenly recites the punishment originally assessed for Count II. Accordingly, we order that the judgment be modified to correctly reflect that Johns's punishment is confinement in the Texas Department of Criminal Justice Institutional Division for eight and one-half years. Tex. R. App. P. 43.2(b); see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).

Conclusion

As reformed, we affirm the trial court's judgment.

 

Karen Angelini, Justice

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