In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00050-CR ______________________________
JEFFERY FOWLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 00F0522-202
Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross
O P I N I O N
Jeffery Fowler appeals his conviction for felony driving while intoxicated. A jury found Fowler guilty and assessed punishment at twenty years' confinement. (1) Tex. Pen. Code Ann. §§ 49.04, 49.09(b) (Vernon Supp. 2002). Fowler contends the trial court erred by admitting evidence of an extraneous offense at the guilt/innocence phase of his trial. He contends the admission of this extraneous offense prevented the jury from considering the full range of punishment during the punishment phase of his trial.
On May 28, 2000, Fowler drove his vehicle over the yellow center lines on FM 922, forcing an oncoming pickup truck, driven by New Boston Chief of Police Kerry Pinkham, off the road. Pinkham turned around and followed Fowler while calling for police assistance regarding a suspected drunk driver. Pinkham followed Fowler until Fowler stopped on the side of the road. Fowler then exited the vehicle with a beer in his hand. His female passenger also exited the vehicle. Thinking they were switching drivers, Pinkham identified himself and requested Fowler to wait on the side of the road until a patrol unit arrived, which he did. After the patrol unit arrived, Fowler was arrested for driving while intoxicated. A breath test revealed Fowler's breath alcohol concentration was 0.21. (2)
The standard of review of a trial court's decision to admit or exclude evidence is abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 122 S. Ct. 127, 151 L. Ed. 2d 82 (2001). We review the trial court's ruling admitting the extraneous offense evidence under an abuse of discretion standard, meaning we will uphold the trial court's decision if it is within "the zone of reasonable disagreement." Id.
The evidence of an extraneous offense, admitted at the guilt/innocence phase of trial, came during the testimony of Shey Gray, a witness for the State. Gray testified on redirect examination that, "He [Fowler] pulled a gun on me." Fowler immediately objected to the evidence and requested it be stricken from the record as an extraneous offense which may not be entered during the guilt/innocence phase of the trial under Texas Rule of Evidence 404(b). (3)
Fowler is correct; this evidence is not properly admissible under Rule 404(b). However, the trial court did not err in admitting the evidence. A review of the record surrounding the admission of the testimony shows the trial court properly admitted the usually inadmissible testimony because Fowler opened the door to the testimony.
At trial, the State called Gray, the female passenger in Fowler's car on the night of the incident, as a witness. On cross-examination, Fowler's counsel asked Gray:
Q. And you've recently broken up with Mr. Fowler?
A. Yes, sir.
Q. And you're not on good terms with Mr. Fowler?
A. I was up until two days ago, yes, sir.
Q. And so you really don't want to see Mr. Fowler any more?
A. No, sir, not after everything he's done.
Immediately on redirect, the prosecutor asked:
Q. Let me follow up on a question that defense counsel just asked you. You said you were on good terms with him up until two days ago. What happened two days ago?
A. He pulled a gun on me.
Defense counsel objected:
[DEFENSE COUNSEL]: Your Honor, I would object to that and ask that it be stricken from the record. That's obviously an extraneous offense that they're trying to get in during the guilt/innocence phase.
THE COURT: I think it's fairly responsive to the question that was asked by defendant, so I'm going to overrule your objection.
When a defendant "opens the door" on an issue by attempting to present an incomplete picture of an incident, the state is permitted to complete the picture with evidence that would have otherwise been inadmissible. Lucas v. State, 791 S.W.2d 35, 53-54 (Tex. Crim. App. 1989); Skillern v. State, 890 S.W.2d 849, 864 (Tex. App.-Austin 1994, pet. ref'd). In this case, Fowler opened the door by asking Gray, "And you're not on good terms with Mr. Fowler," followed by, "And so you really don't want to see Mr. Fowler any more?"
We find it is within the zone of reasonable disagreement whether Fowler opened the door to this testimony and therefore find the trial court did not abuse its discretion in admitting the extraneous offense evidence.
Even if Fowler did not open the door to the introduction of this evidence, any error was harmless. A violation of the evidentiary rules that results in the erroneous admission of evidence is a nonconstitutional error governed by Texas Rule of Appellate Procedure 44.2(b). (4) Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Rule 44.2(b) requires we disregard an error if it does not affect the appellant's substantial rights.
In this case, Fowler does not complain the introduction of this evidence harmed him during the guilt/innocence phase of his trial, but rather argues it so tainted the jury that it was unable to consider the full range of punishment, which is shown by his receiving twenty years' confinement. He contends the harm occurred during the punishment phase of the trial. Evidence of extraneous bad acts may be admissible during the punishment phase, so this evidence could have properly been admitted by the State during the punishment phase. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2002). Because the State could have properly admitted the evidence during the punishment phase and Fowler contends the harm occurred during the punishment phase, we find Fowler has not shown he suffered egregious harm. Even if the trial court erred, it was harmless error.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: January 7, 2002
Date Decided: February 7, 2002
Do Not Publish
1. Fowler was subject to enhancement of his punishment based on one prior felony conviction for escape.
2. The indictment charged that Fowler operated a motor vehicle in a public place while he was intoxicated by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body and by having an alcohol concentration of at least 0.08.
3. Evidence of other crimes, wrongs, or acts is inadmissible for the purpose of proving action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that on timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the state's case-in-chief such evidence other than that arising in the same transaction. Tex. R. Evid. 404(b).
4. Tex. R. App. P. 44.2(b).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00053-CR
______________________________
TED PATRICK CAMMACK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 15,013
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Ted Patrick Cammack was convicted by a jury of possessing methamphetamine with intent to deliver in an amount of four grams or more but less than 200 grams. Cammack appeals this conviction and sentence of thirty years imprisonment, arguing that the trial court erred in failing to suppress the evidence obtained from an allegedly illegal traffic stop and that the evidence is legally insufficient to support his conviction. Because (1) the trial court could have believed the officers testimony over Cammacks and (2) sufficient evidence supported Cammacks conviction, we affirm the trial courts judgment.
(1) The Trial Court Could Have Believed the Officers Testimony over Cammacks
We review a trial courts decision on a motion to suppress evidence by applying a bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.Texarkana 2010, pet. refd); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.Texarkana 2009, pet. refd). While we defer to the trial court on its determination of historical facts and credibility, we review de novo its application of the law and determination on questions not turning on credibility. Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Graves, 307 S.W.3d at 489. We also afford deference to a trial courts application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Since all the evidence is viewed in the light most favorable to the trial courts ruling, we are obligated to uphold the denial of Cammacks motion to suppress if it was supported by the record and was correct under any theory of law applicable to the case. Carmouche, 10 S.W.3d at 32728; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Cammacks motion to suppress challenged only the legality of the traffic stop.
An officer conducts a lawful stop when he or she has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead to the reasonable conclusion that a particular person actually is, has been, or soon will be engaged in criminal activity. Id.; Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Ford, 158 S.W.3d at 492. If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop. Graves, 307 S.W.3d at 489; Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.Texarkana 2000, pet. refd); see Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005).
The Texas Transportation Code provides [a]n operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position. Tex. Transp. Code Ann. § 545.104(a) (West 2011). The signal shall be used continuously for not less than the last 100 feet of movement of the vehicle before the turn. Tex. Transp. Code Ann. § 545.104(b) (West 2011).
At the suppression hearing, Deputy David Thompson testified that he was traveling northbound on State Highway 271 at the intersection of Red Hen Road in the afternoon when he passed Cammacks vehicle as it was approaching the intersection. Even though the vehicle was approximately 75 feet from the intersection, Cammack failed to signal before the turn. Thompson testified, [W]henever I passed himpassed the Red Hen Road I watched the vehicle through my mirrors and when Mr. Cammack turned left on to 271 I noticed that he did not even turn on his blinker at all. Thats when I made a U-turn and went back.
Cammack argues that it would be improbable for Thompson, who was driving approximately fifty-five miles per hour, to have had sufficient time to observe whether Cammack used his turn signal. Thompson admitted that he would only have one second within which to make the observation while passing Red Hen Road.[1] Thompson reiterated, however, that, as he passed the intersection, he was able to observe that [t]he blinker was not on. In opposition, Cammack offered his own testimony swearing that he properly employed a turn signal.
As the finder of fact, the trial court was free to disregard Cammacks testimony as self-serving in favor of Thompsons testimony that he observed a failure to employ a turn signal in violation of Section 545.104 of the Texas Transportation Code. Favoring Thompsons testimony, the trial court could have concluded that Thompson had a reasonable basis for suspecting that Cammack committed a traffic offense. Therefore, the court could have properly found that the traffic stop was legal. See Zervos, 15 S.W.3d at 151.
We overrule this point of error.
(2) Sufficient Evidence Supported Cammacks Conviction
In evaluating legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jurys verdict to determine whether any rational jury could have found the essential elements of possession of four or more but less than 200 grams of methamphetamine with intent to deliver beyond a reasonable doubt.[2] Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.Texarkana 2010, pet. refd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We are to rigorously review legal sufficiency focusing on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 31819).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Cammack was in possession of methamphetamine with intent to deliver as charged in the indictment if he: (1) knowingly (2) possessed, (3) with intent to deliver, (4) four grams or more but less than 200 grams (5) of methamphetamine. Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2010). 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.[3] Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Tex. Health & Safety Code Ann. § 481.115(a), (d) (West 2010). Cammack challenges only the element of knowing possession.
Mere presence at a location where drugs are found is 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). When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406 (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)); Jones v. State, 963 S.W.2d 826, 830 (Tex. App.Texarkana 1998, pet. refd). The links rule is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone elses drugs. Poindexter, 153 S.W.3d at 406.
A nonexclusive list of factors that can be sufficient, either singly or in combination, to establish Cammacks possession of contraband include: (1) Cammacks presence when a search is conducted, (2) whether the contraband was in plain view, (3) Cammacks proximity to and the accessibility of the narcotics, (4) whether he was under the influence of narcotics when arrested, (5) whether he possessed other contraband or narcotics when arrested, (6) whether he made incriminating statements when arrested, (7) whether he attempted to flee, (8) whether he made furtive gestures, (9) whether there was an odor of contraband, (10) whether other contraband or drug paraphernalia were present, (11) whether Cammack 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 Cammack was found with a large amount of cash, (14) whether his conduct indicated a consciousness of guilt, (15) whether he made incriminating statements connecting himself to the contraband, (16) the quantity of the contraband, and (17) whether Cammack was observed in a suspicious area under suspicious circumstances. Evans, 202 S.W.3d at 162 n.12; Hargrove v. State, 211 S.W.3d 379, 38586 (Tex. App.San Antonio 2006, pet. refd); Muckleroy v. State, 206 S.W.3d 746, 748 n.4 (Tex. App.Texarkana 2006, pet. refd); Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.Houston [1st Dist.] 2005, no pet.); Kyte v. State, 944 S.W.2d 29, 31 (Tex. App.Texarkana 1997, no pet.); see Jones, 963 S.W.2d at 830. The number of links is not dispositive; rather, we look to the logical force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.
At trial, Thompson identified Red Hen Road as a hot bed for drug activity in the county, suggesting that Cammack was found in a suspicious area. Thompson testified that Cammack was the only person in the vehicle and described Cammacks demeanor as nervous. Before giving consent to search the vehicle,[4] Cammack advised me that he didnt want me to search his vehicle due to that he might have had a friend earlier that was a diabetic might have left a needle. On obtaining consent, Thompson located a needle concealed inside of a magnet mounted on to the center console by the drivers feet. The center console contained digital scales dusted with white crystal residue, another needle, and a plastic baggy that was filled with methamphetamine with a street value of $800.00. Although Thompson testified he had to obtain a screwdriver to open the side of that console, the fact-finder could have determined that Cammack was in close proximity and had access to the drugs. Thompson believed that Cammacks knowledge of the concealed needles demonstrated that he knew methamphetamine was also present in the console. Thus, factors 1, 3, 10, 11, 12, 14, 15, 16, and 17 of the links test were met.
To rebut these factors, Cammack points to factors 2, 4, 5, 6, 7, 8, 9, and 13. Specifically, the contraband was not in plain view; he was not under the influence of drugs when arrested; did not possess other narcotics; did not make incriminating statements, furtive gestures, or attempt to flee; there was no odor of contraband; and he did not have a large sum of money.
It was within the purview of the jury to weigh credibility and conflicts in the evidence referenced above. Viewing the evidence and outcome of the links analysis in the light most favorable to the verdict, we hold that the jury could, beyond a reasonable doubt, rationally find Cammacks knowing possession of the methamphetamine. Therefore, the evidence was legally sufficient.
We overrule this point of error.
We affirm the trial courts judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 14, 2011
Date Decided: December 14, 2011
Do Not Publish
[1]Thompson also agreed that he could not have seen the blinkers on the drivers side of [Cammacks] vehicle if he was turning left and that he wouldnt know if the blinkers were engaged when he was at the stop sign. Thompson later stated that, whenever I approached the intersection and Mr. Cammack was coming up I slowed down at that time. So whenever he come across and turned left thats when I noticed on the back of his vehicle that the turn signal was not working.
[2]Cammack does not challenge that the amount of methamphetamine was four or more but less than 200 grams.
[3]Possession is defined as actual care, custody, control, or management. Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2011).
[4]Cammack was driving a borrowed vehicle, which indicated he had a right to temporarily possess the vehicle where the cocaine was found. See Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App.El Paso 1995, pet. refd) (holding appellants control over borrowed vehicle raised inference he knew of drugs in vehicle).