Rashann Maurice Brown v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-045-CR

RASHANN MAURICE BROWN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26882

DISSENTING OPINION

Rashann Maurice Brown was a passenger in a speeding truck. It was determined the truck was stolen. Brown was arrested. After he was booked into the county jail, marijuana was found in his possession. He was convicted of taking a controlled substance into a correctional institution. He challenges the validity of the arrest leading to the discovery of the marijuana and whether he took the marijuana into the correctional institution within the meaning of the statute. We should affirm the judgment of the trial court. Because the majority does not, I respectfully dissent.

SUMMARY OF EVIDENCE

Brown was a passenger in a U-Haul truck when it was stopped just outside Corsicana, Navarro County, Texas, for speeding and failure to maintain a single marked lane. The driver claimed he could not find the rental agreement. He was asked to exit the truck. Brown, the passenger next to the right-hand door of the truck, and the passenger in the center of the seat, were also asked to exit the truck. A computerized search on the identification of the truck located a report from Escambia County Auto Theft Division in Florida which identified it as stolen.

At some point in the investigation, it was determined that more passengers were in the cargo compartment of the truck. The compartment was opened and two additional occupants were discovered. All five were hand-cuffed and transported to a meeting room in the administrative area of the Navarro County sheriff s office. After being advised of their constitutional rights, they were interrogated to determine what the circumstances were with regard to the truck and whether anyone was going to be charged with an offense. After the initial investigation by the officers was completed, the driver of the truck and Brown were arrested for unauthorized use of a motor vehicle. The other three occupants were released.

While waiting for the officers to conduct their investigation and while still in the administrative area of the sheriff s office, the jailer advised them that ... if they had anything in their possession that they weren t suppose to have in their possession; namely, drugs, weapons, or anything like that, because I hadn t searched them at that time. It s my I normally ask them if they have anything on them, they need to tell me now before we step inside the jail....And I did tell them that it was going to be a it s a completely different charge once you step behind the secured doors of the jail.

The driver and Brown were then booked into the Navarro County jail. The jailer testified that they were escorted under his guard in hand-cuffs out of the side exit of the administrative area of the sheriff s office to the outside of the building and into the secured area of the jail through a sally port door. They were fingerprinted, photographed, searched, and the necessary computer work performed including a computerized criminal history check through TLETS. Information from the officer s report was also entered into the computer. Book-in was complete.

The jailer testified that Brown needed a shower. The jailer obtained the necessary supplies and escorted Brown to the shower area. After undressing to take a shower, and just as he was about to deliver his cloths to the jailer, Brown pulled less than two ounces of marijuana out of one of his pants pockets and handed it to the jailer.

CONTROLLED SUBSTANCE IN A CORRECTIONAL FACILITY?

Brown was charged with a violation of Section 38.11(b) of the Penal Code which provides as follows:

(b) A person commits an offense if the person takes an alcoholic beverage, controlled substance, or dangerous drug into a correctional facility, except for delivery to a correctional facility warehouse, pharmacy, or physician.

Tex. Pen. Code Ann. 38.11(b)(Vernon Supp. 2000).

In his second issue, Brown contends that the evidence is insufficient to convict him because he was compelled to go into the correctional facility against his will and therefore he could not have intentionally taken a prohibited substance into the correctional facility. He contends that to take means to exercise control and management over the item. Further, he argues that once he was hand-cuffed and in the custody of law enforcement personnel, that he no longer had control of the marijuana and had no opportunity to dispose of it.

Legal or Factual Sufficiency?

In this single issue, Brown does not specify whether he is attacking the legal or factual sufficiency of the evidence. See Purvis v. State, 4 S.W.3d 118, 119 (Tex. App. Waco 1999, no pet.); Turner v. State, 4 S.W.3d 74, 79 (Tex. App. Waco 1999, no pet.). Normally when confronted with this problem we can look to the cases cited for the applicable standard of review and determine if the appellant is attacking the legal or factual sufficiency of the evidence. We cannot do that here because the appellant did not discuss the standard of appellate review. Id.

I will review the issue for both legal and factual sufficiency.

Legal Sufficiency-Standard of Review

When reviewing a claim of legal insufficiency of the evidence, we must determine, after considering all the evidence in the light most favorable to the verdict, whether 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, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998); Westfall v. State, 970 S.W.2d 590, 595 (Tex. App. Waco 1998, pet. ref d). This review is the same for both direct and circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992); see also Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). Whether the evidence satisfies the Jackson test is a question of law. Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996).

Factual Sufficiency-Standard of Review

If a party is attacking the factual sufficiency of an adverse finding on an issue for which they did not have the burden of proof, they must demonstrate that there is insufficient evidence to support the adverse finding. Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App. 2000).

The complete and correct standard a reviewing court must follow to conduct a Clewis // factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof....

Id. at 11. Having done so, the court should set aside the verdict only if the evidence standing alone is so weak as to be clearly wrong and manifestly unjust. Id. at 10. If the reviewing court determines a manifest injustice has occurred, and it would, therefore, be improper to defer to the fact finder s decision, then the reviewing court must provide a clearly detailed explanation of that determination that takes all of the relevant evidence into consideration. Id. at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

While evidence may be in conflict, it is for the fact finder, in this case the trial court, to resolve any conflicts and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Even where there is no conflict, the fact finder may give no weight to some evidence, and thereby reject part or all of a witness testimony. See Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). The fact finder is also the judge of the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Additional Evidence

In addition to the evidence summarized above, Brown and the State had signed a stipulation of evidence. It was introduced at his bench trial without objection. Brown stipulated that:

On the 17th day of February, 1998, in Navarro County, Texas, at the time I was placed into custody by Troopers Bangasser and/or Allison, I did then and there intentionally and knowingly possess a controlled substance, to wit: a usable quantity of marihuana in an amount of less than two ounces. Said marihuana was retrieved from me by Bruce Venable at the Navarro County Jail.

Thus it is undisputed that Brown intentionally and knowingly possessed the marijuana at the time that he entered the secured area of the jail. The question is whether, because he was compelled to enter the jail against his will, it can be said that he took the marijuana into the jail within the meaning of the statute.

Application

Brown had been advised that it was a different offense for taking contraband into the secured area of the jail. He did not surrender the contraband to the jailer prior to entering the secure area of the jail. In fact, he managed to hide the contraband during the search incident to the book-in procedure and prevent its detection. He did not surrender the contraband until he had to surrender his clothes to be washed.

The trial court, acting as the fact finder, could have properly determined that it was not until it was obvious that discovery of the marijuana was certain that Brown decided to surrender the contraband. Brown was already well beyond the entry area of the jail. He had proceeded through the book-in area. If the jailer had not determined that he immediately needed a shower, he might very well have been able to take the contraband into the holding cell until he appeared before the magistrate to have his bail determined. Based upon the evidence presented, the fact finder could have concluded that Brown intentionally declined to surrender the marijuana prior to entry into the jail, and thus chose to take it into the jail, in the hope that he would be able to get released on bail or otherwise dispose of it before it was found in his possession. The evidence was legally and factually sufficient to support a determination that Brown did take the controlled substance, marijuana, into a correctional institution.

CONCLUSION

I would affirm.

TOM GRAY

Justice

Dissenting opinion delivered and filed December 13, 2000

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