James Calvin Tems v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00164-CR

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JAMES CALVIN TEMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31687-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

James Calvin Tems' initial minor traffic offense escalated into a high speed chase before police officer Terry Roach finally apprehended him and found in Tems' vehicle methamphetamine, drug paraphernalia, and an unrestrained eighteen-month-old girl. // Tems appeals from his resulting three jury convictions // for possessing a controlled substance with intent to deliver, evading detention in a vehicle, and endangering a child. This appeal concerns the conviction for the possession of a controlled substance with the intent to deliver. Tems raises identical issues in each appeal and has briefed all three appeals together. // In response to Tems' points of error, we hold that, in each case, (1) the evidence is legally sufficient, (2) the evidence is factually sufficient, (3) the trial court was within its discretion in refusing to allow Tems' trial counsel to withdraw, and (4) the trial court did not improperly give "advice to State's counsel during the punishment phase." We affirm the judgment of the trial court.

(1) The Evidence Is Legally Sufficient

In his first and second points of error, Tems argues the evidence is legally insufficient to support the jury's verdict. According to Tems, the State failed to prove at least one material element of each of the three offenses. Tems contends the State failed to prove that Tems had intent to deliver the methamphetamine, that Tems fled from the officer, that Roach's attempt to detain Tems was lawful, and that the child was placed in imminent danger.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This requires the court to view the relevant 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 crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

While on patrol in White Oak, Roach observed in his rearview mirror a vehicle turn right onto George Richey Road from Whatley Road without signaling and then accelerate to a high rate of speed. Roach turned around and pursued the vehicle. At the intersection of George Richey Road and White Oak Road, the vehicle disregarded a four-way stop. Roach testified that he drove "over 95 miles an hour trying to catch this truck." At the intersection of "1845" and George Richey Road, Roach caught up with the vehicle and activated his overhead lights and siren. Roach testified the chase slowed down at this point, but Tems still did not stop. Tems drove down Tenneryville Road, turned left on Dundee Road, and then pulled into a parking space in front of a duplex.

Roach exited his vehicle and placed Tems under arrest. At this point, Roach noticed an eighteen-month-old girl standing up in the truck seat, looking out the back window. The girl was not restrained in any way. While checking on the child, Roach observed a blue bag on the seat between the driver's seat and the child. The bag was open and had syringes on top. Tems originally stated he needed syringes because he was diabetic but, after being unable to answer several questions about diabetes, Tems admitted he was not diabetic. On examination of the bag, Roach discovered small Ziploc bags, a manual scale, an electric scale, a spoon, eleven grams of methamphetamine, // lighter fluid, and lithium batteries. Pridgen testified that lighter fluid and lithium batteries can be used in the manufacture of methamphetamine.

Possession With Intent To Deliver. Tems argues the State failed to introduce sufficient evidence that he possessed the drugs with the intent to deliver. It is unlawful to possess any quantity of methamphetamine. Tex. Health & Safety Code Ann. 481.102(6) (Vernon Supp. 2004 2005), 481.115 (Vernon 2003). Possession of more than four grams with the intent to deliver is a second-degree felony. Tex. Health & Safety Code Ann. 481.115(d). Intent to deliver may be proved by circumstantial evidence. Roberts v. State, 963 S.W.2d 894, 898 (Tex. App. Texarkana 1998, no pet.). Expert testimony by experienced law enforcement officers may be used to show intent to deliver. Bryant v. State, 997 S.W.2d 673, 675 (Tex. App. Texarkana 1999, no pet.).

Eleven grams of methamphetamine were discovered in a bag on the front seat of Tems' vehicle. Tems was the only occupant of the vehicle other than an eighteen-month-old child. Although Tems denied ownership of the methamphetamine, Tems admitted the blue bag, syringes, Ziploc bags, spoon, and one of the scales belonged to him. Proof that the accused knew he or she was in possession of the controlled substance may be inferred from the circumstances of the case. See Castellano v. State, 810 S.W.2d 800, 807 (Tex. App. Austin 1991, no pet.). In addition, the bag contained two scales, a spoon, and numerous small plastic bags commonly used in selling drugs. Roach testified a spoon is often used to transfer drugs to a scale in order to weigh them. A rational juror could have concluded beyond a reasonable doubt that Tems possessed the methamphetamine with the intent to deliver.

Evading Detention. A person commits the offense of evading detention in a vehicle if he or she intentionally flees from a person he or she knows is a peace officer attempting lawfully to arrest or detain him or her. See Tex. Pen. Code Ann. 38.04(a) (Vernon 2003). Tems challenges the sufficiency of the evidence based on two elements of the offense: whether Tems was fleeing and whether the officer was lawfully attempting to detain Tems. According to Tems, the State introduced insufficient evidence to prove he fled from Roach. Further, Tems argues the State failed to show that Roach's actions in attempting to detain him were lawful.

The State introduced sufficient evidence that Tems fled from the police. Roach testified he followed Tems for two to three miles with his overhead lights and siren on. Further, the videotape of the pursuit shows Roach, with his lights on, following Tems for a good distance before Tems stopped. A rational juror could have concluded beyond a reasonable doubt that Tems fled from police.

Lawful Police Action. According to Tems, the evidence is legally insufficient that Roach's actions were lawful, because the State failed to prove Tems was traveling on public roads. See Tex. Transp. Code Ann. 542.001 (Vernon 1999). To show Roach was attempting to lawfully detain Tems, Roach must have had, at a minimum, a reasonable suspicion that Tems had committed a crime. Terry v. Ohio, 392 U.S. 1, 25 (1968). Roach testified Tems failed to signal for a turn, disregarded a stop sign, and traveled at a high rate of speed. A law enforcement officer may lawfully stop and detain a person for a traffic violation. Zervos v. State, 15 S.W.3d 146, 151 (Tex. App. Texarkana 2000, pet. ref'd); see Tex. Transp. Code Ann. 544.010, 545.104, 545.351 (Vernon 1999), 545.352 (Vernon Supp. 2004 2005).

Tems argues:

In the not too far distant past a former President of the United States used to cruise the roads of his ranch on the Pedernales at far more than what might otherwise have been the "legal" limit, sometimes with an open can of beer perched on the dashboard, and, while his behavior may not have been exemplary in terms of the prudent operation of a motor vehicle, he never violated a single traffic law because he was on private property.

While our former President was clearly on private property when cruising his ranch, and a person could lawfully drive with an open alcoholic beverage on the public roads of Texas thirty years ago, the jury in this case could reasonably conclude Tems was not driving on private property. The videotape of the pursuit was introduced into evidence, and the jury could reasonably conclude from the videotape that Tems was traveling on public roads. The videotape shows roads which appear to be public roads, and Texas road signs are visible alongside the roads. In addition, the name of at least one of the roads indicates the roads were public.

Endangering a Child. A person commits the offense of endangering a child if he or she "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." See Tex. Pen. Code Ann. 22.041(c) (Vernon 2003). The State must prove each and every element alleged beyond a reasonable doubt as guaranteed by the Due Course of Law provision of the Texas Constitution. See Tex. Const. art I, 19; Wilson v. State, 536 S.W.2d 375, 377 (Tex. Crim. App. 1976).

Tems argues that a mere speculative possibility of danger is insufficient to constitute imminent danger. Some courts have interpreted imminent danger to mean "'ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). Imminent refers to "a present, not a future threat of bodily injury or death." Garcia v. State, 819 S.W.2d 634, 636 (Tex. App. Corpus Christi 1991, no pet.). Tems argues the State failed to prove the truck lurched, bounced, or swerved in a manner which would place the child in imminent danger. Tems acknowledges that the failure to restrain a child in a moving vehicle is against the law, but argues the violation is only a class C misdemeanor, rather than a state-jail felony.

The evidence in this case is legally sufficient to support the endangerment of a child. The State presented evidence of an immediate and present danger to the child. Roach testified he was traveling at more than ninety-five miles per hour and caught up with Tems' vehicle only as they traveled around curves in the road. A jury could have reasonably concluded Tems was traveling at an extremely high speed. Roach testified that, because a child of eighteen months is so small, "it doesn't take much of a joist [sic] or anything to throw a baby around on the inside of the vehicle." In addition, Roach testified that, in a vehicle traveling nearly 100 miles per hour, an unrestrained baby is in danger, and the results can be devastating. Roach also testified Tems disregarded a four-way stop.

The statute does not require actual harm to the child, but rather only imminent danger of bodily injury. A rational juror could have concluded Tems intentionally, knowingly, recklessly, or with criminal negligence engaged in conduct that placed the child in imminent harm. Traveling at a high rate of speed and losing control of a vehicle in an effort to evade the police has been held to be sufficient evidence of child endangerment. See Walker v. State, 95 S.W.3d 516, 521 (Tex. App. Fort Worth 2002, pet. ref'd) (rejecting argument that statute requires proof of intent or knowledge that conduct places child in imminent danger). Although there is no evidence Tems lost control of his vehicle, Roach testified that Tems traveled at a high rate of speed and that the child was unrestrained. Further, Tems' conduct in fleeing from the police placed the child in immediate danger that the police would use affirmative methods to stop the vehicle. These dangers were present, impending, and menacingly near. A rational juror could have concluded beyond a reasonable doubt that the child was in imminent danger. //

Viewing the relevant evidence in the light most favorable to the verdict, we conclude a rational juror could have found the essential elements of all three offenses beyond a reasonable doubt. The State introduced evidence that Tems possessed illegal drugs and drug paraphernalia, that Tems fled from police at a high rate of speed, and that the child was unrestrained. A rational juror could have also concluded beyond a reasonable doubt that Tems had the necessary intent to deliver the methamphetamine, that Tems fled the officer, that Roach's attempt to detain Tems was lawful, and that Tems' conduct placed the child in imminent danger. The evidence is legally sufficient.

(2) The Evidence Is Factually Sufficient

In his third and fourth points of error, Tems makes identical arguments that the evidence is factually insufficient to support the jury's verdict. According to Tems, a rational juror could not have concluded beyond a reasonable doubt that Tems committed all the material elements of each of the three offenses when the evidence is viewed in a neutral light. Tems contends the State failed to prove that Tems had intent to deliver the methamphetamine, that Tems fled the officer, that Roach's attempt to detain Tems was lawful, and that the child was placed in imminent danger.

When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which we may find the evidence to be factually insufficient. Id. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if when we weigh the evidence supporting and contravening the conviction we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 484 85. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. at 485.

Intent To Deliver. Tems argues the evidence supporting his intent to deliver is factually insufficient. Although he admitted the blue bag, syringes, spoon, plastic bags, and one of the scales were his, Tems denied ownership of the other set of scales and the methamphetamine. Tems testified he had not placed the methamphetamine in the blue bag. Tems did admit he has used methamphetamine and claimed he bought the manual scale so he could make sure the drugs he purchased were of the correct quantity. In addition, Tems testified the lighter fluid was for his cigarette lighter and the lithium batteries were for his cell phone. // The evidence is factually sufficient to support a finding of possession of methamphetamine with intent to deliver.

Evading and Endangering. Tems argues that, when the evidence is viewed in a neutral light, there is insufficient evidence that he fled from the police, that Roach was acting in a lawful manner, or that the child was placed in imminent danger of bodily injury. Tems testified he had been caring for the child for several months, after the child's mother informed him she could not take care of the child. According to Tems, he had borrowed the vehicle and had forgotten the child seat at home.

Tems testified he was not attempting to flee the police, but rather only to surrender at a convenient location. Tems testified he had some outstanding ticket warrants in White Oak and believed he would be arrested. Tems claims he did not want the child placed with the Texas Department of Family and Protective Services and wanted to reach his sister's house, where the child could be cared for. According to Tems, he drove only about forty to forty-five miles per hour and followed all traffic laws. Tems denied traveling at a high rate of speed and denied that Roach had to travel ninety-five miles per hour to catch him. We note that the videotape records Roach reciting the speeds Tems was traveling at as fifty, forty, and thirty miles per hour at various points during the videotaping. We also note that Tems appeared to be in control of the vehicle in the videotape. But, the videotape starts in the middle of the chase, and the jury could have believed Roach's testimony that Tems slowed down at the end of the chase.

Conflicts in the evidence are to be resolved by the jury. In doing so, it may accept one version of facts and reject another, or reject any of a witness' testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). It is the jury's job to judge the credibility of the witnesses and the weight to be given their testimony, and the jury may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit. Dunn v. State, 13 S.W.3d 95, 97 (Tex. App. Texarkana 2000, no pet.). Because the jury is the sole judge of the weight and credibility of the witnesses' testimony, it may accept or reject any or all testimony of any witness. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). The jury could have believed Roach's testimony over Tems' and concluded Tems had committed traffic violations, had fled from the police, and had placed the child in imminent danger of bodily injury.

When viewed in a neutral light, the evidence supporting the verdict, considered alone, is not too weak to support the jury's finding of guilt beyond a reasonable doubt. When we weigh the evidence supporting and contravening the conviction, the contrary evidence is not strong enough that the State could not have met its burden of proof. The evidence is factually sufficient on all argued points.

(3) The Trial Court Was Within Its Discretion in Refusing To Allow Tems' Trial Counsel To Withdraw

Tems argues in his fifth point of error that the trial court erred in refusing to permit his trial counsel to withdraw. During the course of the proceedings in the trial court, Tems' trial counsel filed two motions to withdraw.

At a hearing concerning the first motion to withdraw, Tems complained he did not trust his trial attorney. Tems testified he was dissatisfied with his trial counsel's representation and wanted a new attorney. Tems stated that all his trial counsel had ever done was try to get him to plead guilty, that his trial counsel did not discuss trial strategy but rather only "gave warnings" and "already had me convicted of two life sentences." Tems stated his attorney had told him that, without a guilty plea, "I was going to do time." Tems informed the trial court his trial counsel had told him that his case was a "high profile case," that he would be a "trophy for the district attorney's office," and that "[he] didn't need a lawyer, [he] needed a deal maker." Tems admitted his attorney had visited him in jail numerous times and had discussed his pending legal matters. The trial court overruled the motion to withdraw. The trial court noted that the case was on the trial docket and there was a possibility that the case may proceed to trial within the week.

The trial court's decision to deny the motion to withdraw is reviewed for abuse of discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). An indigent defendant's right to counsel does not require the trial court to appoint a counsel agreeable to the accused. Id. In general, personality conflicts and disagreements concerning trial strategy do not form valid grounds for withdrawal. Id. Unless a defendant shows adequate grounds for the appointment of new counsel or chooses to waive his or her right to counsel and to proceed pro se, he or she must accept the counsel appointed by the trial court. Garner v. State, 864 S.W.2d 92, 98 (Tex. App. Houston [1st Dist.] 1993, pet. ref'd). The trial court did not abuse its discretion in finding Tems had failed to show adequate cause for the appointment of new counsel based on the first motion to withdraw.

Three days before voir dire, Tems' trial counsel filed another motion to withdraw. In the motion, Tems' trial counsel stated he had just received notice that Tems had filed a grievance against him. Although the grievance had been dismissed before the hearing on the second motion, an appeal of the dismissal might have been available. The trial court denied the motion to withdraw.

When a client files a disciplinary complaint against his or her attorney, an actual conflict of interest may exist. See id. at 99. Tems argues the injection of the disciplinary proceeding into the attorney-client relationship made trial counsel and Tems adversaries. According to Tems, the adversity would prevent any attorney from presenting an adequate defense. However, the filing of the complaint raises only the possibility of a conflict of interest. Id. The reason a grievance does not automatically require the appointment of new counsel is obvious; such a rule could be exploited by the indigent defendant to delay trial or to select the attorney of his or her choice. The contents of the grievance do not appear in the record, and we cannot conclude the trial court abused its discretion based on the reasons given during the hearing. The trial court did not abuse its discretion in finding that Tems failed to show adequate grounds for the appointment of new counsel. Tems has not shown he was denied his right to counsel as guaranteed by the Sixth Amendment.

(4) The Trial Court Did Not Improperly Give "Advice to State's Counsel During the Punishment Phase"

In his final point of error, Tems contends the trial court gave aid and assistance to the State in how to proceed. At the commencement of the punishment phase of trial, the following colloquy occurred outside the presence of the jury:

[THE STATE]: What are we doing here?

THE COURT: On the notice of intent to seek enhanced punishment.

[THE STATE]: Well, that conviction is already before the jury.

THE COURT: Well, I understand that, but he's got to plead to the notice of intent.

[THE STATE]: Well, I'd like to see it done in front of the jury myself, but . . . .

THE COURT: What difference does it make? I'm going to instruct them that he's done it.

[THE STATE]: Well . . . .

THE COURT: Let's do it my way for a change. 31,687-B State of Texas versus James Calvin Tems, at this time, in this cause, Mr. Tems, the State will read to you its notice of intent to seek enhancement of the range of punishment. You have it handy?

[THE STATE]: 15 to life.

THE COURT: No, no, no. Read him the notice.

[THE STATE]: The notice? I can do that.

The State then read to Tems the notice that the State was seeking enhancement of punishment by pleading and proving a prior felony conviction for driving while intoxicated. // Following the reading of the enhancement paragraph, Tems pled "true."

According to Tems, the trial court's comments violated the duty of the trial court to maintain impartiality throughout the trial. See Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000); see also Blumburg v. United States, 222 F.2d 496, 501 (5th Cir. 1955).

To the jury the language and conduct of the trial court have a special and peculiar weight. The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial. Jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved. The delicacy of the situation in which he is placed requires that he be alert in his communications with the jury, not only to avoid impressing them with any view that he has, but to avoid in his manner and speech things that they may so interpret.

Blue, 41 S.W.3d at 131. We disagree, though, that the trial court violated its duty to maintain impartiality. The above colloquy reflects the trial court was simply exercising its authority to control the order and manner of the proceedings, not giving advice to counsel. "A trial judge has broad discretion in maintaining control and expediting the trial." Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); Singleton v. State, 91 S.W.3d 342, 351 (Tex. App. Texarkana 2002, no pet.). Tems argues that, if the trial court had not instructed the State how to proceed, the enhancements may not have been read and the State would not have been entitled to an instruction on the enhanced punishment range. The record, though, does not support this contention. The State and the trial court had differing opinions about when the plea should occur. The State stated it would "like to see [the plea] done in front of the jury," and the trial court desired the plea to occur at that point in the proceedings.

We note the reading of the enhancement and the plea occurred outside the presence of the jury. The Texas Court of Criminal Appeals has suggested that the reading of enhancement allegations and the defendant's plea should occur while the jury is present. See Turner v. State, 897 S.W.2d 786, 788 89 (Tex. Crim. App. 1995); cf. Linton v. State, 15 S.W.3d 615, 619 (Tex. App. Houston [14th Dist.] 2000, pet. ref'd) (any error in failing to read allegations subject to harmless error analysis). Tems did not object at trial, or argue on appeal, that the trial court erred in not having the jury present. The Texas Court of Criminal Appeals has suggested that such an error cannot be raised for the first time on appeal. See Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973). Further, any error in pleading outside the presence of the jury would be harmless since Tems pled true to the allegations and the trial court informed the jury of his plea.

The trial court's actions reflect it was maintaining control over the proceedings, not giving advice to counsel. Because the trial court did not violate its duty to maintain impartiality, we overrule Tems' final point of error.

For the reasons stated, we affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: July 26, 2005

Date Decided: August 30, 2005

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