COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-016-CR
ALAN SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Alan Smith of possession of a controlled
substance, hydrocodone, and assessed his punishment at seven years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice and a fine of $7,000, probating both the incarceration and the fine.
The trial court sentenced him accordingly.
1
… See Tex. R. App. P. 47.4.
In three points, Appellant argues that the trial court improperly admitted
evidence of an extraneous offense in violation of Blakely v. Washington 2 and
challenges the legal and factual sufficiency of the evidence. Because we hold
that the evidence is both legally and factually sufficient and because the trial
court did not err, we affirm the trial court’s judgment.
On November 14, 2006, at approximately 11:30 a.m., Officer Orozco and
Officer Stegall stopped a vehicle that had run a stop sign and had made an
improper turn. Officer Stegall spoke with the driver of the car, Appellant, while
Officer Orozco looked through the windows and noticed a crack pipe on the
back dash of the car near the speakers. The officers searched the car and
discovered wire paraphernalia of the type used with a crack pipe and a pill
bottle with no label under Appellant’s seat. The pill bottle contained 46 tablets
of dihydrocodeinone, also known as hydrocodone, Lortab, and Lorcet. No
latent fingerprints of evidentiary value were found on the pill bottle.
Officer Orozco testified that he asked Appellant if he had a prescription
and that Appellant replied that the pills belonged to his wife. Appellant offered
to have his wife bring the prescription to the scene, but Officer Orozco was
never provided with a copy of her prescription. Appellant was arrested for
2
… 542 U.S. 296, 124 S. Ct. 2531 (2004).
2
possession of hydrocodone. At trial, Appellant’s wife testified that the
hydrocodone pills found in the car did not belong to her.
Appellant’s defense at trial was that although he was the sole occupant
of the car, he was driving a vehicle that his wife often drove. Appellant said
that the hydrocodone belonged to his wife. He alternatively suggested that
another man, Coyle Goodall, had dropped the hydrocodone under the seat. The
State offered evidence of Appellant’s subsequent possession of hydrocodone
to rebut this defense.
Approximately three months after the offense for which Appellant was
tried in the case now before this court, he was again pulled over for a traffic
violation, and a drug-sniffing dog discovered hydrocodone tablets in a cigarette
pack inside a bag owned by Appellant. In the jury charge on guilt, the trial
court provided,
You are instructed that if there is any testimony before you
in this case regarding the defendant having committed offenses,
other than the offense alleged against him in the indictment in this
case, you cannot consider said testimony for any purpose unless
you find and believe beyond a reasonable doubt that the defendant
committed such other offenses, if any were committed. Even if
you find and believe beyond a reasonable doubt that the defendant
committed such other offenses, then you may only consider the
same in determining the motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident of the
defendant, if any, in connection with the offense, if any, alleged
against him in the indictment in this case, and for no other purpose.
3
In his first point, Appellant argues that the trial court erred in admitting
evidence of the extraneous offense because Blakely requires that a jury make
determinations of fact when a defendant requests a jury trial. He argues that
because no jury had ever found him guilty of the extraneous offense, it was
improper to submit it to the jury in the case now before this court. Appellant
misunderstands the holding in Blakely, which simply requires that
determinations of fact be made by a jury in a jury trial and that a trial judge not
usurp the province of a jury in making determinations of fact.3
Evidence of other wrongful acts is admissible to defeat a defense offered
by a defendant at trial.4 As the State points out, although evidence of wrongful
acts is generally not admissible to prove the character of the accused or to
establish that he acted in accordance with that character, extraneous offenses
may be admissible to show motive, opportunity, intent, or absence of mistake
or accident.5 Appellant argued below that he was unaware that the
hydrocodone was in the car and that it belonged either to his wife or to
Goodall. The trial court properly admitted evidence to defeat that defense, the
3
… Id. at 303, 124 S. Ct. at 2537.
4
… Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); Moses
v. State, 105 S.W.3d 622, 626 & n.4 (Tex. Crim. App. 2003).
5
… Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 377
(Tex. Crim. App. 1990) (op. on reh'g).
4
evidence was probative under rule 404 of the rules of evidence, the probative
value was not substantially outweighed by the danger of unfair prejudice, and
therefore the evidence was not subject to exclusion under rule 403.6
Additionally, we note that the jury charge contains a proper reasonable
doubt instruction; that is, the jury was asked to determine Appellant’s guilt of
the extraneous offense beyond a reasonable doubt and instructed not to
consider the evidence of the extraneous offense unless they found him guilty
of that offense beyond a reasonable doubt. We overrule Appellant’s first point.
In his second point, Appellant argues that the evidence is legally
insufficient to support the verdict, relying on the absence of evidence that he
physically possessed the drugs, including the absence of fingerprint evidence
tying him to the drugs. As the Texas Court of Criminal Appeals has held,
When deciding whether evidence is sufficient to support a
conviction, a reviewing court must assess all the evidence in the
light most favorable to the verdict to determine whether any
rational trier of fact could find the essential elements of the crime
beyond a reasonable doubt. To prove unlawful possession of a
controlled substance, the State must prove that: (1) the accused
exercised control, management, or care over the substance; and (2)
the accused knew the matter possessed was contraband. Whether
this evidence is direct or circumstantial, “it must establish, to the
requisite level of confidence, that the accused’s connection with
6
… See Tex. R. Evid. 403, 404.
5
the drug was more than just fortuitous. This is the whole of the
so-called ‘affirmative links’ rule.” 7
Appellant was the driver and sole occupant of the vehicle at the time of
his arrest. The hydrocodone was discovered under the driver’s seat, where he
had been sitting. His offer to the police officer to get his wife to bring a copy
of “her prescription” shows that he knew the pills in the bottle were
prescription drugs. The absence of the prescription from evidence at trial,
Appellant’s wife’s testimony that the hydrocodone found in the vehicle was not
hers, the subsequent arrest of Appellant for again possessing hydrocodone, and
his proximity to the drugs at the time of their discovery establish that he
exercised care, custody, and control over the drugs. Consequently, we
conclude that a rational trier of fact could have found beyond a reasonable
doubt that Appellant exercised care, custody, control, and management over
the pills and that he knew the pills were contraband.8 Therefore, we hold that
the evidence is legally sufficient to support his conviction. We overrule
Appellant’s second point.
7
… Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App.
2005) (citations omitted).
8
… See id.
6
In his third point, Appellant contends that the evidence is factually
insufficient to support the verdict. Appellant relies on the evidence that he was
not found in physical possession of the hydrocodone and that his fingerprints
were not on the bottle. But viewing all the evidence presented to the jury in a
neutral light, favoring neither party,9 we hold that the evidence is factually
sufficient to support the verdict. We overrule Appellant’s third point.
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 5, 2009
9
… See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008);
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).
7