Ronald Davis v. The State of Texas--Appeal from 54th District Court of McLennan County

[WITHDRAWN 9-17-97]

IN THE

TENTH COURT OF APPEALS

No. 10-96-133-CR

RONALD DAVIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-342-C

O P I N I O N

A jury found Ronald Davis guilty of possession of cocaine, more than four grams and less than 200 grams, and assessed punishment at seven years in prison, probated. Tex. Health & Safety Code Ann. 481.115 (Vernon Supp. 1997). Davis appeals on six points, including points that the evidence is legally and factually insufficient to affirmatively link him to the cocaine. Although we find the evidence legally sufficient, we find that the court erred in allowing the jury to separate over Davis objection. Because we cannot determine that the error was harmless, we must reverse the judgment.

FACTS

On March 17, 1995, Waco police officers executed a search warrant at 2304 Trice. The house was rented by Vicki Jefferson, Davis former girlfriend and the mother of his two children. Officers found a suitcase in Jefferson s bedroom. Inside a zippered compartment, officers discovered a plastic bag with 6.53 grams of crack cocaine, $1,965 in cash, and a receipt from the McLennan County Sheriff s Department in Davis name.

Reginald Johnson, a Waco police officer, testified that Davis had been under surveillance for approximately one month. On several occasions, Johnson had observed Davis maroon Impala automobile parked in front of the house on Trice. On the day the warrant was executed, officers established surveillance on the house. They observed Davis, along with several other people, exit the house and drive away in the Impala. Officers stopped the car as it returned. Davis was arrested and taken to the house while the search warrant was executed.

Officer Joy Rogerson testified that she assisted in executing the warrant. She observed a suitcase lying in the floor of bedroom one Jefferson s bedroom. Inside a zippered compartment on the exterior of the suitcase, Rogerson found a ziplock bag containing money and rocks of crack cocaine. Also in the zippered compartment, touching the bag of money and cocaine, was a yellow receipt from the McLennan County Sheriff s Office, dated March 4, 1995. The receipt stated in part: Received from Ronald Darrell Davis for court cost + 40.00 for Warrant, cash $247.00." A partial fingerprint was taken from the plastic bag, but no comparison could be made.

Rogerson testified that a pile of men s clothing was lying next to the suitcase. Photographs show trash bags full of clothing in a corner near the suitcase. Various bills and receipts in Davis name were found in a dresser drawer. The documents listed Davis address as either 3300 Maple or 2916 Primrose.

Officer Johnson testified that he believed Davis was living on and off with Jefferson, with another female named LaShequa Cunningham, and with his mother on Maple Avenue. A search warrant had been executed on Cunningham s home on March 10, but no contraband was found. Johnson testified that he observed men s clothing on the floor of Jefferson bedroom and pictures of Davis attached to the mirrors. A non-operational scale was also found in a dresser drawer. No other male clothing was found in the house. Johnson testified that, besides the cocaine and money, not much was in the suitcase besides a man s shirt.

Officer Horace Knight found a purple Crown Royal bag on top of a china cabinet in the living room. The bag contained two razor blades still in their packaging, a paper towel, and a plastic bag. The paper towel had a light residue which he believed to be baking soda. Knight testified that razor blades are used in various ways in the drug trade.

Vicki Jefferson testified that she lived at 2304 Trice with her two children by Davis. An uncle, Darren Evans, also lived at the house. Jefferson stated that Davis did not live with her, that he came to see his children about twice a week, and that she had broken up with him in January 1995 and had taken away his key. On the day the warrant was executed, Jefferson was out shopping. At Davis request, she left the back door unlocked for him because he was arranging to have her lawn mowed.

Jefferson testified that she owned the suitcase, but denied knowledge of the cocaine. She said she had not looked in the suitcase since September 1994. According to Jefferson, the suitcase had been filled with papers and junk. On cross-examination she was shown a photograph of the suitcase and agreed that it was not full of papers and junk; rather, it contained clothing. Jefferson stated that the suitcase had been against the wall, not lying on the floor as officers had testified, and that she had never seen Davis with the suitcase.

Jefferson testified that the bags of clothes found in her bedroom were Davis which she had washed for him. Jefferson testified that the receipt in the suitcase was from March 1995 when she had picked up Davis from the McLennan County jail. She stated that she had placed the receipt on her dresser, had not moved it, and had not seen it in the suitcase.

POSSESSION

The State must prove two elements to establish possession of a controlled substance: 1) the accused exercised care, custody, control, or management over the contraband, and 2) the accused knew the matter was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). In proving knowing or intentional possession, the courts use the shorthand expression, affirmative links. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Whether the evidence is direct or circumstantial, the State must establish to the requisite level of confidence, that the accused s connection with the drugs was more than just fortuitous. Id.

Courts have enumerated several factors to consider in determining possession: (1) the defendant's presence when the search warrant was executed; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotics; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; and (12) whether the place the drugs were found was enclosed. Collins v. State, 901 S.W.2d 503, 506 (Tex. App. Waco 1994, pet. ref d). "The number of factors present is less important than the logical force of those factors, alone or in combination, in establishing the elements of the offense." Martinets v. State, 884 S.W.2d 185, 188 (Tex. App. Austin 1994, no pet.).

SUFFICIENCY OF THE EVIDENCE

Legal Sufficiency

Davis first point asserts that the evidence is legally insufficient to affirmatively link him to the contraband. In reviewing a claim of legally-insufficient evidence, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the verdict, 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, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996).

Looking only at the evidence favorable to the verdict, we find that Davis had been present in the home during the day. Jefferson s suitcase, which previously had been filled with papers and junk now contained clothes and cocaine, money, and a McLennan County sheriff s office receipt for Ronald Darrell Davis. In bags next to the suitcase were Davis new and freshly laundered clothes.

We find the evidence legally sufficient. Id.

Factual sufficiency

In reviewing a claim of factually-insufficient evidence, we consider all the evidence 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. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App. Austin 1992, pet. ref'd, untimely filed). However, because we will reverse on another point of error, we do not reach this question.

JURY SEPARATION

Davis fourth point asserts that the court erred in allowing the jury to separate for lunch over his objection. The jury retired for guilt-innocence deliberations at 10:46 a.m. At 12:15 p.m., while answering a jury note, the court asked counsel whether they had any objection to the jury separating for lunch. Davis stated that he wanted to keep the jury together. The record reflects that the jury continued its deliberations. At 6:32 p.m., in response to a jury note, the court stated: It is now 6:30 p.m. The jury in this case in 95-342-CR has been out. I retired the jury to deliberate at 10:46 a.m. this morning. The jury did separate for lunch. They have been in deliberations since that time.

Article 35.23 of the Code of Criminal Procedure provides in part:

The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together, and not permitted to separate . . . until a verdict has been rendered or the jury finally discharged.

Tex. Code Crim. Proc. Ann. art. 35.23 (Vernon Supp. 1997). Prior to 1989, article 35.23 provided that, unless the defendant consented, the jury was not permitted to separate after the reading of the court s charge until a verdict was rendered or the jury was discharged. Code of Criminal Procedure Act, 54th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 450; Harris v. State, 738 S.W.2d 207, 211 (Tex. Crim. App. 1986). As amended, article 35.23 permits jurors to separate unless the court or a party makes a motion to sequester the jury or timely objects to the jury separation. Tex. Code Crim. Proc. Ann. art. 35.23; Gregg v. State, 881 S.W.2d 946, 950 (Tex. App. Corpus Christi 1994, pet. ref d).

The State concedes that Davis objected to the separation, but argues that the record does not establish that the jury did in fact separate at that particular time. The record is ambiguous as to the timing of the separation. However, the timing of the separation is not dispositive. Davis objected to the separation, and the court stated that the jury did separate for lunch. Once Davis objected to the proposed separation, the provisions of article 35.23 became mandatory. Jackson v. State, 931 S.W.2d 46, 47 (Tex. App. Fort Worth 1996, no pet.); Sanchez v. State, 906 S.W.2d 176, 178 (Tex. App. Fort Worth 1995, pet. ref d & pet. dism d). Thus, the court erred in allowing the jury to separate over Davis objection.

The next question is whether a violation of article 35.23 is subject to a harm analysis. Tex. R. App. P. 81(b)(2). In Hood v. State, the Austin Court of Appeals held that a violation of article 35.23, under the particular facts and circumstances of that case, was not subject to a harm analysis. 828 S.W.2d 87, 96 (Tex. App. Austin 1992, no pet.). The Fort Worth Court of Appeals has applied Rule 81(b)(2):

[A]n appellate court cannot affirm a conviction under Rule 81(b)(2) after a trial court errs by allowing a separation under article 35.23 unless concrete evidence exists in the record on which the appellate court could meaningfully gauge or quantify the harm caused by the trial court allowing the separation.

Sanchez, 906 S.W.2d at 179. Thus the Fort Worth Court reversed the conviction in Sanchez because there was no evidence by which to gauge or quantify the harm. Id. at 180. In Jackson, however, the same Court found that the State had presented abundant evidence that the jury separation was harmless. Jackson, 931 S.W.2d at 48.

We believe that a harm analysis is appropriate. Id. at 47-8; Sanchez, 906 S.W.2d at 179. However, because there is no evidence from which we can quantify or gauge the harm done by the separation, we cannot determine that the error was harmless. Tex. R. App. P. 81(b)(2); Sanchez, 906 S.W.2d at 179. We sustain point four.

Having sustained point four, we do not reach Davis remaining points. We reverse the judgment and remand the cause for a new trial on the merits.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed July 16, 1997

Do not publish

[WITHDRAWN 9-17-97]