Opinion issued May 6, 2010
In The
Court of Appeals
For The
First District of Texas
________________
NO. 01-09-00265-CR
________________
MICHAEL CHANNING GRIGGS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1156464
MEMORANDUM OPINION
A jury found appellant, Michael Channing Griggs, guilty of possession with the intent to deliver more than four grams but less than two hundred grams of cocaine. See Act of May 22, 2001, 77th Leg., R.S., ch. 1188, § 2, 2001 Tex. Gen. Laws 2691 (amended 2009) (current version at Tex. Health & Safety Code Ann. § 481.112 (a) & (d) (Vernon Supp. 2009)).[1] Appellant entered a plea of true to the enhancement paragraph, and the jury assessed punishment at 25 years’ imprisonment. On appeal, appellant argues that (1) the trial court erred in denying his motion to suppress, (2) the evidence is legally insufficient to support his conviction, (3) the evidence is factually insufficient to support his conviction, and (4) the trial court erred in explaining the concepts of reasonable doubt, Fifth Amendment privilege, and the presumption of innocence during voir dire. We affirm.
BACKGROUND
Just after midnight on March 4, 2008, Harris County Precinct 3 Corporal Jose Quintanilla saw appellant drive a Nissan Pathfinder into an apartment complex without using a turn signal. Quintanilla had previously made arrests in that apartment complex and knew it to be a “heavy narcotics” and “high crime area.” Quintanilla initiated a traffic stop based on appellant’s failure to use his turn signal before making a left turn into the complex. Quintanilla pulled behind appellant’s vehicle, activated his emergency lights, and used his spotlight to illuminate the interior of the vehicle. Quintanilla testified that appellant stopped his vehicle, honked the horn several times, exited the vehicle and began to approach the squad car. Quintanilla ordered appellant to return to his vehicle, but appellant did not immediately comply. Instead, appellant stood outside the vehicle, adjusted his shoes and pants, and looked around as if “he was going to try to run.” Finally, appellant complied with the orders and returned to his vehicle.
Corporal Quintanilla approached the driver’s side window with his flashlight and saw appellant attempting to place a clear, plastic bag into the coin compartment of the center console. Appellant said he was at the apartment complex looking for his aunt. Quintanilla asked appellant for his driver’s license and insurance, and appellant responded that he did not have any. Then, appellant opened the driver’s door, got out of the vehicle, and walked towards the trunk. Appellant told Quintanilla that his identification might be in the back of the vehicle. Quintanilla observed appellant open the trunk, grab an ice chest, and “start[ed] placing clothes over it[.]” Quintanilla ordered appellant to stop, turn, and face him, but appellant ignored the orders and “continue[d] trying to move this ice chest out of the way.” Again, Quintanilla ordered appellant to stop and appellant complied. Quintanilla directed appellant to stand at the front of his patrol car.
Then, Quintanilla approached the passenger side of the vehicle to speak with the passengers. The front passenger was Neice Merritt-Jones, a 19-year-old female who was upset and crying. The rear passenger was Angelica Brooks, a 16-year-old female. After asking the passengers to step out of the vehicle, Quintanilla asked appellant for consent to search the vehicle and appellant consented.
First, Quintanilla searched the area where he observed appellant attempting to hide something in the coin compartment and found “a clear bag with a white, powdery substance.” Quintanilla performed a “NIK” field test on the bag’s contents and determined the substance was cocaine. As he continued searching, Quintanilla found a pill bottle under the driver’s seat containing 14 pieces of “an off-white, rock-type substance.” The NIK test confirmed that the bottle contained cocaine. Quintanilla also found what he believed to be a “crack cookie” in the ice chest in the back of the vehicle. He explained that a crack cookie is a crack rock before it is broken into little pieces, which are then sold. Quintanilla estimated the street value of the contraband found in the vehicle to be approximately $600.
Corporal Quintanilla arrested appellant and read him his Miranda warnings. As Quintanilla was driving appellant to the Harris County Inmate Processing Center, appellant attempted to get Quintanilla’s attention by tapping the window separating the two. Quintanilla opened the window and asked if he could help appellant with anything. Appellant “began asking what he was arrested for” and Quintanilla informed appellant that “he was arrested for possession of a controlled substance with attempt [sic] to deliver.” In response, appellant “said, that’s bullshit, he don’t sell drugs. He uses them.” Then, appellant asked what would happen to his vehicle, and Quintanilla “advised him that it was taken to [the] substation for a possible seizure.” Appellant responded by saying, “That’s bullshit” and stated that “he makes a lot of money selling dope and that as soon as he pays his bond, he will be out to buy another ride.”
The seized contraband was sent to the Harris County Medical Examiner’s Office for chemical analysis. Lab Technician Stephan Houck testified that he tested the evidence and determined the pill bottle contained 2.47 grams of cocaine, the clear plastic bag of white powder contained 1.45 grams of cocaine, and the bag with the off-white, rock-like substance contained 7.48 grams of cocaine.
Neice Merritt-Jones, appellant’s front passenger, testified that she “met up with” appellant around 10 p.m. and rode around with him in his vehicle as he made stops at three residences, a club, and Wal-mart. At trial, Merritt-Jones unequivocally denied ever telling officers that she had been “riding around with [appellant] all night selling drugs to crack heads.” However, Merritt-Jones testified that she recalled Angelica, the other passenger, making that statement to police officers. During her testimony, after a short break Merritt-Jones claimed she “refreshe[d her] memory” and she equivocated from her prior testimony denying making the statement. Merritt-Jones testified that she “d[id]n’t recall” making that statement to police officers, explaining “Maybe I did; but now that I think of it, I don’t think I said that.” Merritt-Jones testified that she had a sexual relationship with appellant and admitted she was on probation for robbery. Merritt-Jones testified she never saw any drugs in the car, explaining “if [she] did [see the drugs], [she] would have told him to take [her] home because . . . [she was] not supposed to be around any of those things.”
DISCUSSION
A. Suppression of Seized Evidence
In his first issue, appellant argues that the trial court erred in denying his motion to suppress evidence seized from his vehicle following the search. Specifically, appellant argues that his actions did not give rise to probable cause and the search was not incident to arrest. Alternatively, appellant argues that this Court should abate the appeal and order the trial court to make “written findings of fact and conclusions of law with which to supplement the record on appeal.”
1. Harmless Error
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific legal grounds and obtained a ruling on that objection. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). The error, if any, in the admission of evidence becomes harmless where the same evidence comes in elsewhere without objection. Id. (citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); see also Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002) (“[A] defendant who allows evidence to be introduced from one source without objection forfeits any subsequent complaints about the introduction of the same evidence from another source.”).
2. Analysis
The record reveals that appellant did not address the suppression issue pretrial or object at trial until the State offered the seized contraband. Prior to appellant’s objection, the State’s witnesses provided substantial testimony without objection describing the search of appellant’s vehicle, the seizure of contraband, and the chemical analyses confirming that the substances were cocaine. Corporal Quintanilla had already identified the exhibits, describing each as the powder cocaine, crack cocaine rocks, and crack cocaine cookie found in appellant’s vehicle. Additionally, prior to appellant’s objection, Lab Technician Stephen Houck testified that he analyzed the chemical makeup and weighed each exhibit, determining that the pill bottle contained 2.47 grams of cocaine, the clear bag of white powder contained 1.45 grams of cocaine, and the bag containing the off-white, rock-like substance contained 7.48 grams of cocaine.
Because substantial testimony describing the contraband was admitted without objection, any error admitting the seized contraband itself was harmless because the same substantive evidence was elsewhere introduced without objection. See Lane, 151 S.W.3d at 193 (quoting Leday, 983 S.W.2d at 718 (“overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.”)).
3. Abatement
In the alternative, appellant contends that this Court should abate the appeal and order the trial court to make findings of fact and conclusions of law. In State v. Cullen, the Court of Criminal Appeals held that, “[U]pon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings.” 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). In Cullen, the Court explained that, “the trial court’s refusal to [state its findings and conclusions] prevented the court of appeals from meaningful review of the decision to grant the motion to suppress.” Id. at 698.
In the present case, it is unnecessary to review the trial court’s ruling or reasons for its ruling. Even if we were to conclude that the trial court erroneously admitted the contraband, the exhibits were cumulative of the testimonial evidence already admitted without objection and would not warrant reversal. See Lane, 151 S.W.3d at 193. Accordingly, no abatement is necessary. We overrule appellant’s first issue.
B. Sufficiency of the Evidence
In his second and third issues, appellant contends that the evidence presented at trial is legally and factually insufficient to support the jury’s verdict. Specifically, appellant contends that the evidence is insufficient to show that he exercised care, custody, or control over the cocaine.[2]
1. Standards of Review
In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The standard is the same for both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of witnesses, as this was the function of the trier of fact. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
In our factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5; see also Lancon v. State, 253 S.W.3d 699, 705–07 (Tex. Crim. App. 2008).
2. Unlawful Possession of a Controlled Substance
A person commits an offense if he knowingly or intentionally possesses a controlled substance. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112 (Vernon Supp. 2009). When an accused is charged with unlawful possession of drugs, the State must prove (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the accused knew the object he possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The law does not require exclusive possession of the drug. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Harvey v. State, 487 S.W.2d 75, 77 (Tex. Crim. App. 1972)). “The mere fact that a person other than the accused might have joint possession of the premises does not require the State to prove that the defendant had sole possession of the contraband, only that there are affirmative links between the defendant and the drugs such that he, too, knew of the drugs and constructively possessed them.” Poindexter, 153 S.W.3d at 412 (emphasis in original).
“When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that he had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link him to the contraband.” Id. at 406. Evidence that affirmatively links an accused to the substance is proof that he possessed it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Affirmative links may be shown by direct or circumstantial evidence, but in either case it must establish to the requisite level of confidence that the accused’s connection with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 405–06 (citing Brown, 911 S.W.2d at 747). As explained in Poindexter, “The ‘affirmative links rule’ is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs.” Id. at 406.
“Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). However, presence or proximity, when combined with other evidence or “links”, may well be sufficient to establish that element beyond a reasonable doubt. Id. It is not the number of links that is dispositive, but rather the logical force of all of the evidence. Id. The following non-exclusive “affirmative links” have been recognized as sufficient, either singly or in combination, to establish a person’s connection to contraband:
(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics 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 were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.
Id. at 162 n.12.
3. Legal Sufficiency
Appellant asserts that the evidence is insufficient to link him to the contraband to establish actual care, custody, or control of the drugs.
A review of the evidence shows that Corporal Quintanilla testified that, when he approached the door of the vehicle appellant was driving, he observed appellant attempting to place a clear, plastic bag into the coin compartment of the center console. That bag was determined to contain cocaine. Quintanilla also observed appellant attempting to hide an ice chest, which was later found to contain a crack cookie. Under the driver’s seat, Quintanilla found a pill bottle containing 14 crack cocaine rocks. After being arrested, appellant volunteered several incriminating statements. Appellant asked the officer what was happening to “his vehicle” indicating his right to possess the vehicle. Quintanilla testified that appellant denied selling drugs, but admitted using them, and then later said “he makes a lot of money selling dope[.]” These statement support the finding that appellant knowingly possessed the drugs.
Several of the non-exhaustive factors mentioned in Evans are present in this case. See 202 S.W.3d at 162. The facts tending to connect appellant with the cocaine include: (1) appellant was present when the search was conducted; (2) the clear, plastic bag containing powder cocaine was in plain view when appellant was in the vehicle; (3) the drugs found in the coin compartment and under the driver’s seat were both located in close proximity to where appellant was sitting and would have been easily accessible to him; (4) other contraband was found in the back of the vehicle in the ice chest that appellant attempted to cover with clothes; (5) appellant made incriminating statements after being arrested; (6) appellant made furtive gestures in an attempt to conceal the contraband in the coin compartment and the ice chest; (7) the drugs were found in an enclosed space, the vehicle appellant was driving; and (8) after he was arrested, appellant asked Corporal Quintanilla “what happened to his vehicle,” indicating that appellant had a right to possess the vehicle where the drugs were found.
In support of his legal insufficiency argument, appellant points to evidence admitted for the limited purpose of the suppression hearing held outside the presence of the jury. Specifically, he points to his testimony during the suppression hearing explaining how and when he acquired possession of the vehicle. Appellant did not testify or otherwise introduce the evidence during trial on the merits. Accordingly, we do not consider it in our review of the evidence supporting the conviction.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have reasonably inferred from the cumulative force of the evidence that appellant exercised actual care, custody, or control of the contraband. See Evans, 202 S.W.3d at 166 (concluding that evidence, “when viewed in combination and its sum total, constituted amply sufficient evidence”). We conclude that the evidence is sufficient for a rational trier of fact to have found the elements of possession of cocaine beyond a reasonable doubt. See Tex. Health & Safety Code Ann. § 481.112. We overrule appellant’s second issue.
4. Factual Sufficiency
In his third issue, appellant makes several assertions in support of his factual sufficiency argument.
First, appellant asserts, “It was undisputed that Officer Quintanilla had arrested Appellant’s aunt for possession of narcotics in this car several days prior to Appellant’s arrest.” However, to the extent that appellant is implying that the drugs belonged to his aunt, the argument ignores key testimony to the contrary. Quintanilla testified that he stopped the same vehicle two weeks prior to this offense and ultimately arrested all four people in the vehicle, including appellant’s aunt. All four people were taken to jail and a “detailed inventory” was performed on the vehicle. Quintanilla testified that, because it was a drug arrest, the officers thoroughly searched the vehicle, including the air vents, console compartments, floor mats, underneath the seats, the rear truck area, and the glove box. Quintanilla testified there was no possibility that the officers’ detailed inventory missed the contraband found two weeks later in the vehicle when appellant was stopped. Quintanilla testified that appellant’s aunt, the owner of the vehicle, had not been released from jail between the time of her arrest and appellant’s arrest, so there was “no way she was back in that car” after it had been inventoried.
Next, appellant asserts that he was not in exclusive possession of the car and was standing outside and away from it upon the officer’s initial contact with him. However, the fact that appellant momentarily got out of the vehicle does not negate the cumulative force of the “affirmative links” connecting him to the contraband.
Additionally, appellant asserts that it was “undisputed that . . . Neice Merritt-Jones did not see Appellant exercise any care, custody or control over the cocaine despite having spent the entire evening with him in the car.” Appellant misstates the record. Merritt-Jones testified that she saw State’s Exhibit 3, the pill bottle containing crack rocks, in appellant’s vehicle the night of the offense but she did not think there was anything in the bottle. Moreover, while Merritt-Jones testified that she never saw any of the drugs that night, the jury was free to disbelieve her testimony. See Cain, 958 S.W.2d at 407 n.5 (fact-finder may choose to believe all, some, or none of testimony presented); Lancon, 253 S.W.3d at 705–07.
Lastly, appellant asserts, without citing to the record, that Corporal Quintanilla’s testimony was contradictory.[3] Even if the testimony was contradictory, that would not make the evidence factually insufficient because the fact-finder alone determines the weight to be given to contradictory testimony. See Cain, 958 S.W.2d at 408–09; see also Poindexter, 153 S.W.3d at 406 (“In deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.”). Here, the fact-finder was able to make an assessment of the facts and found that the State proved appellant’s possession of cocaine beyond a reasonable doubt.
When viewed in a neutral light, the evidence shows that many of the recognized links are present in this case and the cumulative force of the evidence is sufficient to connect appellant to the actual care, custody, control or management of the cocaine found in the vehicle. See Evans, 202 S.W.3d at 162, 166. The evidence is not so weak that the verdict is clearly wrong and unjust. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Also, there is no objective basis in the record to conclude that the great weight and preponderance of the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 417. We hold the evidence is factually sufficient to support the conviction for possession of cocaine with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112. We overrule appellant’s third issue.
D. Trial Court’s Statements During Voir Dire
In his fourth issue, appellant argues that the trial judge erred in explaining the concepts of reasonable doubt, Fifth Amendment privilege, and presumption of innocence during voir dire. Although appellant did not object at trial, he points to five statements by the trial judge as reversible error. Specifically, appellant asserts that the statements, viewed in their totality, unjustly influenced the jury.
1. Applicable Law
As a general rule, to preserve an error for appellate review, the complaining party is required to make a “timely, request, objection, or motion.” Tex. R. App. P. 33.1(a)(1). The requirement of a timely objection applies to comments made by the trial court during voir dire. Marshall v. State, — S.W.3d —, 2009 WL 3400977, at *2 (Tex. App.—Houston [1st Dist.] Oct. 22, 2009, no pet.) (holding appellant’s complaint was not preserved where she failed to object to trial court’s remarks during voir dire explaining burden of proof) (citing Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (holding that appellant waived complaint about trial court’s explanation of reasonable-doubt standard during voir dire by failing to renew objection when trial court repeated explanation); Moore v. State, 907 S.W.2d 918, 923 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding appellant waived complaint about trial court’s comment on weight of evidence during voir dire)).
Appellant acknowledges that he did not object to the court’s comments during voir dire, but argues that no objection was necessary to preserve the complaint, relying upon Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.). A plurality of the Court of Criminal Appeals in Blue held that a trial judge’s unobjected-to comments tainted the presumption of innocence, amounting to fundamental error and, therefore, no objection was necessary to preserve the complaint for appellate review. Id. at 132. Appellant argues that we should reach the same conclusion here because this case involves a judicial comment made during voir dire that was either a “structural error” or “fundamental error.” However, appellant concedes in his brief that the comments, “standing alone, might not have amounted to error” at all.
2. Trial Judge’s Statements
For the first time on appeal, appellant points to five statements made by the trial judge during voir dire as fundamental error.
Statement 1. First, appellant argues that the following statement is erroneous because of the court’s use of “until and unless” instead of “unless.”
[THE COURT]: So until somebody has weighed this testimony whether a person is guilty of the offense or not or whether the State can prove it or not is a question mark. So our concept of criminal justice says you must be willing to give a person charged of a criminal offense the presumption of innocence until and unless as a juror you are convinced beyond a reasonable doubt of that person’s guilt.
Statement 2. Second, appellant selectively quotes the following exchange between the court and a venire member regarding Fifth Amendment privilege:
[THE COURT]: Why is it that a person charged with a criminal offense might invoke the Fifth Amendment privilege? You all know. You just are hesitant to tell me. What’s the first thing that comes to your mind?
[VENIREPERSON]: They don’t want to say anything if they’re not innocent.
[THE COURT]: They don’t want to say anything—I’m going to flower that up a little bit. They don’t want to say anything that’s going to hurt their case. They don’t want to say anything that will incriminate them. Fair enough.
Appellant fails to include the context of this statement. The court was trying to involve the veniremembers by asking them for their thoughts on the issue. The judge took several comments from the venire and, then, followed up by explaining that there are various reasons why a defendant might choose to invoke the Fifth Amendment privilege not to testify. The judge gave the example that the defendant may be nervous and, as a result, not “articulate . . . concepts well.” The trial judge explained that the reasons for not taking the stand may have “[n]othing to do with criminal conduct” so that is why “the instruction is . . . you can’t consider it for any reason.”
Additionally, appellant points to several statements as erroneous, arguing that they “skewed the venire panel’s perception regarding the burden of proof and the presumption of innocence.” Statements 3, 4, and 5 were made during the court’s discussion of the punishment phase of trial. Before these statements were made, the court explained:
In a criminal case there are two parts. The first part is the guilt or innocence stage. You have heard the State’s allegation in this particular piece of paper. If a jury hears the facts of the case and decides the person is not guilty, everybody goes home, it’s over. If a jury hears the facts of the case and decides that the person is guilty, there is a second phase of the trial called the punishment phase.
Statement 3. Appellant points to the following statement made by the judge during the court’s discussion of considerations involved in the punishment phase:
[THE COURT]: First, what are the facts? What do we find that the person is guilty of?
A reading of the statement in context dispels appellant’s allegation that the comment skewed the jury’s perception:
[T]he important thing is that you recognize there is a wide, wide possible range, and it’s a wide range so that it will force the jury to be able to consider all the possibilities. First, what are the facts? What do we find that the person is guilty of? If nothing, then everybody goes home.
(Emphasis added.)
Statement 4. Appellant also quotes the following statement of the trial judge discussing the punishment phase and explaining that panel members must “be willing to keep an open mind as to the full range of possibilities”:
[THE COURT]: All we are asking is, are you willing to commit to keeping an open mind as to all those possible options until, first, you tell us what, if anything, the person is guilty of, and then see what other facts come into play and then you make whatever decision you think is proper based on the facts and the individual you’re sitting in judgment of.
It is not clear from appellant’s brief what he finds objectionable about this statement.
Statement 5. Lastly, appellant points to the following statement made during the court’s discussion of the punishment phase:
[THE COURT]: Well, certainly I’m hoping our criminal justice system is that we can deter people from returning to criminal conduct. Sometimes we’re successful, sometimes we’re not, but I think statistically I think we’re running about 60 percent success rate. Yes, you’re right, that means 40 percent fail, but you could look at it either way.
A review of the context obviates any concern of impropriety in the judge’s comment. The judge asked the veniremembers if they would be able to “in a proper case . . . consider as little as 2 years’ probation all the way up to life in prison and a 10,000-dollar fine in a proper case[.]” In response, Veniremember 6 indicated he would not be able to assess probation and explained, “If he’s caught with substance and he’s only given 4 years or at least 5 years, he will keep doing the same thing because he has a tendency that people who do this, they’ll always come back.” In other words, the veniremember implied that people guilty of possession will “always” be repeat offenders. The statement by the judge, quoted above, was in response to the veniremember’s comment and was likely the judge’s attempt to correct the inaccurate representation of recidivism rates.
3. Analysis
As this Court has previously noted, “Blue is a plurality opinion and thus, does not constitute binding precedent.” Marshall, 2009 WL 3400977, at *3 (citing Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999)); see also Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (holding Blue plurality opinion was not binding authority). Even if Blue were binding, the comments in this case are a far cry from those in Blue. Cf. 41 S.W.3d at 130.
In Blue, the trial court told prospective jurors that (1) the trial delay was due to the defendant’s attempt at making a plea bargain with the State and the defendant’s prolonging the negotiations, (2) the trial court would prefer the defendant to plead guilty, and (3) there were reasons an innocent defendant might not testify, but, even knowing she was guilty, defense counsel might put Sister Theresa on the stand because nobody would believe she would lie. Id. at 130. Although the defendant in Blue did not object to the comments at trial, a plurality of the Court of Criminal Appeals reversed the intermediate appellate court’s holding that the error was waived. The judges voting to reverse, however, disagreed in their rationale for the reversal. Four judges concluded the trial court’s comments “tainted appellant’s presumption of innocence in front of the venire” and were fundamental error of constitutional dimension. See id. at 132 (opinion of Johnson, J.); see also Saldano v. State, 70 S.W.3d 873, 889 n.72 (Tex. Crim. App. 2002) (explaining Blue ). A fifth judge concluded that the trial court’s comments violated the right to an impartial judge. See Blue, 41 S.W.3d at 138 (opinion of Keasler, J.); see also Saldano, 70 S.W.3d at 889 n.72.
Turning to the present case, the comments by the trial judge do not amount to fundamental error. Even if Blue was binding authority, the comments complained of in this case do not rise to such a level as to “bear on the presumption of innocence or vitiate the impartiality of the jury.” See Jasper, 61 S.W.3d at 421 (holding judge’s comments “aimed at clearing up a point of confusion” and judge’s “irritation at the defense attorney” did not amount to degree of prejudice discussed in Blue). Appellant’s fourth issue is overruled.
CONCLUSION
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Hanks, Bland, and Wilson.[4]
Do not publish. See Tex. R. App. P. 47.2(b).
[1] The 81st Texas Legislature amended Texas Health & Safety Code Section 481.112, effective September 1, 2009. The amendments do not affect the disposition of this case.
[2] Appellant was convicted of possessing cocaine with intent to deliver, but appellant’s argument on appeal addresses only the element of possession. Appellant states in his brief, “In order to prove the ‘intent to deliver’ element of the crime, the government may use ‘circumstantial evidence, such as the quantity of drugs possessed, the manner of packaging, and the presence of the accused in a drug house[,]” citing Taylor v. State. See 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet). However, other than this one sentence, appellant provides no citations, argument, or discussion of the relevant facts to address the intent to deliver element. Similarly, appellant does not dispute the weight of the contraband found or the determination that the substances found were controlled substances. Accordingly, we limit our review to the argument set out in appellant’s brief and address the element “possession.” See Tex. R. App. P. 38.1(i) (requiring brief to contain a clear and concise argument with appropriate citations).
[3] Appellant simply points to his argument “as discussed above[.]” Appellant appears to be referring to his argument in his first issue. However, in that issue appellant attempted to draw inconsistencies between Quintanilla’s testimony at the suppression hearing and at trial. We do not consider testimony from a pretrial hearing held outside the presence of the jury in our sufficiency of the evidence review.
[4] Davie L. Wilson, retired Justice, First Court of Appeals, participating by assignment.