Ronnie Joe Mason v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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RONNIE JOE MASON, No. 08-07-00189-CR
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Appellant, Appeal from
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v. 371st District Court
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. (TC # 1027079D)
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OPINION

Ronnie Joe Mason appeals his convictions of possession of less than one gram of heroin and

possession of less than one gram of cocaine, enhanced by two prior felony convictions. After the

jury found Appellant guilty, the trial court found both enhancement allegations true, and assessed

punishment of twenty years’ imprisonment. We reform the judgment to delete the possession of

cocaine conviction, and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

On June 17, 2006, around 7:30 p.m., Officer S.T. Nguyen of the Forth Worth Police

Department responded to a dispatch call regarding a possible drunk driver. When Officer Nguyen

arrived at the location described in the call, he observed a blue Saturn traveling in the center lanes

of the freeway. Upon further observation, Officer Nguyen watched the Saturn swerve, twice into the

right lane and then a third time, almost causing an accident with another vehicle. Officer Nguyen

initiated a traffic stop and approached the vehicle. As Nguyen requested Appellant’s driver’s license

and proof of insurance, he noticed Appellant’s eyes were bloodshot and watery. Officer Nguyen

smelled alcohol in the vehicle and on Appellant, and observed an open twelve ounce can of
Bud Light beer in the center console. Appellant, wearing a traveling pouch across his chest, was

arrested after he failed three separate field sobriety tests. A syringe was found in the pouch during

a subsequent search incident to Appellant’s arrest. After he placed Appellant under arrest, Officer

Nguyen kept the pouch in the front seat of his patrol car.

Nguyen transported Appellant to the Mansfield holding facility, where he was booked and

his property was inventoried. Officer Nguyen was present during the entire booking and inventory

phase; he had possession and control of the pouch for the duration of the process.

Demetria Wise, a correction officer with Mansfield Law Enforcement who inventoried

Appellant’s property, found two clear capsules containing a brown substance and the syringe in

Appellant’s pouch. Officer Wise gave the items to Officer Nguyen after notifying him that she was

not allowed to keep them. Wise did not mark the capsules before handing them over. Nguyen

placed the capsules and syringe in a clear plastic tube and marked it with the police department

report number. He put the tube in an envelope and placed it in the secured evidence locker in the

property room. Once an officer puts items into the evidence locker, that officer and property room

personnel are the only people able to remove them.

Lori Speaker, a forensic scientist with the Fort Worth crime lab assigned to Appellant’s case,

retrieved the envelope from property room personnel and brought it back to the laboratory. She

analyzed the capsules and found that they contained a total of .2 grams of a mixture of heroin and

cocaine. At trial, Officer Nguyen and Officer Wise identified the capsules as the same ones that

were discovered during Appellant’s property inventory. Wise confirmed that the capsules were the

same ones that she turned over to Officer Nguyen.

A jury found Appellant guilty of possession of a controlled substance, heroin of less than a

gram and cocaine of less than a gram. The trial court found both enhancement allegations true and
sentenced Appellant to twenty years’ imprisonment. This appeal follows.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, Appellant complains that the evidence presented at trial was not

legally or factually sufficient to support a guilty verdict. Specifically, Appellant contends that the

State failed to prove that: (1) Officer Nguyen had probable cause to stop Appellant’s vehicle; and

(2) the heroin and cocaine found by Officer Wise belonged to Appellant.

Standards of Review

In reviewing the legal sufficiency of evidence, we consider all evidence in the light most

favorable to the verdict and determine 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, 318-

19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). We look at “events occurring before, during

and after the commission of the offense and may rely on actions of the defendant which show an

understanding and common design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007), quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985). We

must account for “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper,

214 S.W.3d at 13 quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. 2181.

Appellate courts are constitutionally empowered to review the judgment of the trial court to

determine the factual sufficiency of the evidence used to establish the elements of an offense.

Johnson v. State, 23 S.W.3d 1, 6 (Tex.Crim.App. 2000), citing Clewis v. State, 922 S.W.2d 126,

129-30 (Tex.Crim.App. 1996). In examining the factual sufficiency of the elements of the offense,

all evidence is viewed in a neutral light, favoring neither party. Clewis, 922 S.W.2d at 129. In

performing our review, due deference is given to the fact finder’s determinations. See Johnson, 23
S.W.3d at 8-9. Evidence may be factually insufficient if it is so weak that it would clearly be wrong

and manifestly unjust for the verdict to stand, or “the adverse finding is against the great weight and

preponderance of the available evidence.” Johnson, 23 S.W.3d at 11. The question that must be

answered when reviewing factual sufficiency is 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 proof of guilt, although ample if taken alone, is greatly

outweighed by contrary proof. Id.

Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong”

or “manifestly unjust” simply because, on the amount 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 cannot declare that a conflict in the evidence justifies a new

trial simply because we disagree with the jury’s resolution of the conflict. Id. In order to find that

evidence is factually insufficient to support a verdict, 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.

Probable Cause & Traffic Violations

As noted by the State, the issue of probable cause is not an element of the charged possession

offenses and the trial court did not submit an Article 38.23 instruction to the jury. Therefore,

Appellant is not entitled to legal and factual sufficiency review of the probable cause issue.

Contraband

Where the accused is charged with unlawful possession of a controlled substance, the State

must show that: (1) the accused exercised care, control, and management over the contraband; and

(2) the accused knew he was in possession of contraband. Martin v. State, 753 S.W.2d 384, 386
(Tex.Crim.App. 1988). Possession involves more than simply being where the action is; it requires

exercise of “dominion and control” over the thing allegedly possessed. McGoldrick v. State, 682

S.W.2d 573, 578 (Tex.Crim.App. 1985). Evidence must affirmatively link the accused to the

contraband by a showing that indicates knowledge and control of the contraband. Menchaca v. State,

901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref’d), citing Waldon v. State, 579 S.W.2d 499,

501 (Tex.Crim.App. 1979). The burden of showing the affirmative link rests on the State.

Menchaca, 901 S.W.2d at 651, citing Damron v. State, 570 S.W.2d 933, 935 (Tex.Crim.App. 1978).

Proof of knowledge is an inference drawn by the jury from all circumstances. Dillon v. State, 574

S.W.2d 92, 94 (Tex.Crim.App. 1978). Knowledge may arise from the conduct of and remarks by

the accused or from circumstances surrounding the acts engaged in by the accused. Sharpe v. State,

881 S.W.2d 487 (Tex.App.--El Paso 1994, no pet.).

The “affirmative links” doctrine is the appropriate means of applying the Jackson rationality

standard of review. Lassaint v. State, 79 S.W.3d 736, 740 (Tex.App.--Corpus Christi 2002, no pet.).

An affirmative link, which may be shown by either direct or circumstantial evidence, “must

establish, to the requisite level of confidence, that the accused’s connection with the drug was more

than just fortuitous.” Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Factors that may

affirmatively link the accused to contraband include whether: (1) the contraband was in plain view

or recovered from an enclosed place; (2) the accused was the owner of the premises or the place

where the contraband was found; (3) the accused was found with a large amount of cash; (4) the

contraband was conveniently accessible to the accused; (5) the contraband was found in close

proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused

possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or

found on the accused; (9) the physical condition of the accused indicated recent consumption of the
contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the

accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special

connection to the contraband; (14) the occupants of the premises gave conflicting statements about

relevant matters; (15) the accused made incriminating statements connecting himself to the

contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious

area under suspicious circumstances. Lassaint, 79 S.W.3d at 740-41. Any list of affirmative links

is non-exclusive. Castellano v. State, 810 S.W.2d 800, 805 (Tex.App.--Austin 1991, no pet.). The

logical force the factors play in establishing the elements of the offense is more important than the

number of factors. See Jones v. State, 963 S.W.2d 826, 830 (Tex.App.--Texarkana 1998, pet. ref’d).

In Menchaca, inspectors found marijuana hidden throughout the defendant’s station wagon

and he was the sole occupant of the vehicle. Menchaca, 901 S.W.2d at 652 (holding that appellant

exercised dominion or control over the station wagon because he was alone in the vehicle).

Knowledge of the presence of contraband may be inferred from control over the vehicle in which

the contraband is concealed. Id. In Lassaint, police found cocaine hidden in a speaker box located

in the hatchback area of a Geo. Lassaint, 79 S.W.3d at 741. The defendant, a passenger in a rental

car the Geo had been following, was arrested, charged with, and later convicted of possession of

cocaine. Lassaint, 79 S.W.3d at 742-43. The Corpus Christi Court of Appeals examined the facts,

considered whether any factors affirmatively linked appellant to the cocaine, and reversed the

conviction. Id. at 743-46 (holding that evidence was insufficient to establish appellant’s possession

of contraband because the cocaine was not in close proximity to him and not conveniently accessible,

no paraphernalia was found on him, and appellant was not intoxicated).

Here, the evidence is both legally and factually sufficient to show Appellant’s unlawful

possession of a controlled substance. Like the driver in Menchaca, Appellant was the driver and sole
occupant of his vehicle. Because Appellant exercised control over his vehicle, and knowledge of

the presence of contraband may be inferred by this control, the first element of unlawful possession

of a controlled substance is satisfied. Menchaca, 901 S.W.2d at 652. The evidence is likewise

sufficient to establish Appellant’s possession of contraband. Officer Nguyen discovered a syringe

in a pouch Appellant was wearing at the time of his arrest. In the same pouch, Officer Wise found

two capsules containing a brown substance. Laboratory analysis established that the brown

substance was a mixture of cocaine and heroin. The contraband was in close proximity to Appellant

and conveniently accessible, as the pouch was near his pocket. Nguyen believed Appellant was

intoxicated based on clues the officer observed during Appellant’s attempted completion of field

sobriety tests. The logical force the links play in establishing the elements of the offense is more

important than the number of links. See Jones v. State, 963 S.W.2d 826, 830 (Tex.App.--Texarkana

1998, pet. ref’d). These affirmative links establish, to a requisite level of confidence, that

Appellant’s connection with the drug was more than just fortuitous. Brown, 911 S.W.2d at 747.

Therefore, Appellant knew that he was in possession of contraband; the second element of unlawful

possession of a controlled substance is satisfied. Menchaca, 901 S.W.2d at 652. Because the

evidence is legally and factually sufficient to prove the essential elements of unlawful possession of

a controlled substance beyond a reasonable doubt, we overrule Point of Error One.

CHAIN OF CUSTODY

In his second point of error, Appellant alleges that the evidence submitted by the State is

insufficient to establish the chain of custody. He argues that because Officer Wise did not mark the

capsules at the time of seizure, the State cannot prove the substances seized from Appellant were the

same ones analyzed and submitted into evidence.

Standard of Review
 We review a trial court’s decision regarding the admissibility of evidence for an abuse of

discretion. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.Crim.App. 2006). This standard requires

an appellate court to uphold a trial court’s decision to admit evidence decision when that decision

is within the zone of reasonable disagreement. Id. The trial court does not abuse its discretion when

the evidence admitted is based on a belief that a reasonable juror could find the evidence has been

authenticated or identified. Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Crim.App. 1996).

Evidentiary Foundation

The Texas Rules of Evidence do not specifically address a chain of custody issue, but they

provide that the authentication or identification as a condition precedent to admissibility is satisfied

if the evidence is sufficient to support a finding that the matter in question is what the proponent

claims. TEX .R.EVID . 901(a). Where proof of chain of custody is necessary, the State must provide

proof to establish that the evidence is what the State says it is. Simmons v. State, 944 S.W.2d 11,

12-13 (Tex.App.--Tyler 1996, pet. ref’d). The chain of custody may still be sufficiently shown, even

when a State witness is unable to identify evidence. See Salinas v. State, 507 S.W.2d 730, 731

(Tex.Crim.App. 1974).

In Simmons, an undercover narcotics agent purchased rock cocaine from the defendant, took

the contraband back to her office, and placed it in a sealed envelope. Simmons, 944 S.W.2d at 12.

She initialed the envelope and placed it in the evidence locker at the sheriff’s office. Id. At trial, she

identified the envelope as the same one that she placed in the evidence locker. Id. A deputy sheriff

took the envelope from the evidence locker and transported it to a laboratory for analysis, where the

contents were tested and confirmed to be cocaine. Id. (holding that the State established the identity

of the cocaine through evidence of its proper chain of custody and the cocaine was contraband seized

from the defendant, in part because defendant offered no evidence of tampering that might affect
admissibility). The defendant in Salinas challenged the admissibility of heroin into evidence,

arguing that the chain of custody had not been established because undercover agents could not

identify a substance presented at trial as the same one that was purchased from the defendant.

Salinas, 507 S.W.2d at 731 (holding that the chain of custody was sufficiently shown because

defendant’s objection would be to the weight rather than the admissibility of evidence, and defendant

presented no evidence of tampering).

Although Officer Wise did not mark the capsules at the time they were discovered, a proper

chain of custody was established. Both Officer Nguyen and Officer Wise identified the capsules,

State’s Exhibit No. 2, as the same ones that were discovered during Appellant’s property inventory.

Wise confirmed that the capsules were the same ones that she turned over to Officer Nguyen.

Appellant offered no evidence tampering at trial, nor has he argued such in his appellate brief.

Appellant simply argues that the “State cannot be successful in showing that the chain was not

broken.” The failure of the State’s witness to identify an exhibit does not affect its admissibility into

evidence. Salinas, 507 S.W.2d at 731. Appellant’s objection would be to the weight of the

evidence, not its admissibility. Id. Because the evidence is sufficient to establish a proper chain of

custody for the capsules, we overrule Point of Error Two.

EXTRANEOUS OFFENSE EVIDENCE

Appellant asserts in his third point of error that the trial court erred in allowing the State to

introduce evidence regarding Appellant’s alleged DWI stop on June 16, 2006. Specifically,

Appellant contends that the “probative value of the DWI did not outweigh the prejudicial effect on

the APPELLANT.”

Rule 404(b)

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. TEX .R.EVID . 404(b). However, it may be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, or

knowledge. Id. Absent an abuse of discretion, a trial court’s evidentiary ruling will not be reversed.

Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996).

Same Transaction Contextual Evidence

“Same transaction contextual evidence” is evidence that reflects the context in which a

criminal act occurred. McDonald v. State, 148 S.W.3d 598, 601 (Tex.App.--Houston [14th Dist.]

2004, pet. granted). In order to realistically evaluate evidence, a jury has a right to hear what

occurred immediately before and after an offense. Id. To be admissible under Rule 404(b), same

transaction contextual evidence must be necessary to the jury’s understanding of the charged offense.

Id. at 602. Thus, necessity is the “other purpose” for which same transaction contextual evidence

is admissible. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993). Necessity may exist either

because: (1) several offenses are so intermixed or connected as to form a single, indivisible criminal

transaction, such that in narrating one, it is impracticable to avoid describing the other; or (2) the

same transaction contextual evidence tends to establish some evidentiary fact, such as motive or

intent. McDonald, 148 S.W.3d at 602. This evidence provides the jury information essential to

understanding the context and circumstances of events which, although legally separate offenses, are

blended or interwoven. Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993). The

evidence is not admissible for the purpose of showing character conformity, but rather to illuminate

the nature of the alleged crime. Id.

Upon timely request, the State must give notice of its intent to introduce “other purpose”

extraneous offense evidence “other than that arising in the same transaction.” See TEX .R.EVID .

404(b). Although necessity is required for same transaction contextual evidence to be relevant under
Rule 404(b) for a purpose other than character conformity, it is not required if evidence arises from

the same transaction; this evidence is exempt from the Rule 404(b) notice rule. McDonald, 148

S.W.3d at 602.

In McDonald, the defendant challenged his conviction of indecency with a child, arguing that

the trial court erred in admitting testimony regarding an extraneous offense because the State failed

to give adequate notice of its intent to use the evidence at trial. McDonald, 148 S.W.3d at 600. The

victim testified that on the same day of the offense, during the same visit, and a short time after the

offense, appellant: (1) pulled down a cousin’s clothes and exposed her; and (2) asked the cousin to

touch him inappropriately. Id. at 602. But the trial court properly exercised its discretion to

conclude that the evidence arose from the same transaction and notice was not required because the

evidence was closely related in time, location, and subject matter with the charged offense.

In Webb v. State, the defendant was arrested and charged with unauthorized use of a motor

vehicle. Webb v. State, No. 08-02-00142-CR, 2003 WL 22162337 at *1 (Tex.App.--El Paso 2003,

no pet.)(not designated for publication). While questioning a man later identified as Ricky White,

an officer observed drug paraphernalia and contraband inside White’s motel room. Id. White

attempted to flee from the police, eventually ending up in the defendant’s vehicle, and both were

arrested after a high-speed chase. Id. The trial court’s decision to allow the jury to hear officer

testimony related to the events leading up to the defendant’s arrest was found to be within the zone

of reasonable disagreement. Id. at *4 (holding that testimony related to officer observations at the

motel provided information essential to understanding the context and circumstances of appellant’s

involvement with White). For the State to adequately describe the events leading to appellant’s

arrest, they were allowed to fully explain how and why Ricky White entered the defendant’s vehicle.

Id.
 The trial court did not abuse its discretion in admitting Officer Nguyen’s testimony regarding

Appellant’s alleged DWI stop. Testimony regarding his observations of Appellant before, during,

and after the traffic stop gave the jury information essential to understanding the context and

circumstances of Appellant’s arrest and subsequent charges. Webb, 2003 WL 22162337 at *4.

Nguyen described Appellant’s erratic driving that led to the stop, his physical condition during the

stop, and his behavior during the field sobriety tests. For the State to describe the events leading to

Appellant’s arrest, Nguyen was allowed to explain how and why Appellant was stopped. Id.

Appellant further contends that the testimony was inadmissible because the State did not give

notice of its intent to introduce the evidence. However, the traffic stop was closely related in time,

location, and subject matter with Appellant’s charged offense; Officer Nguyen’s testimony arose

from the same transaction and was exempted from the Rule 404(b) notice requirement. McDonald,

148 S.W.3d at 602. Appellant was taken directly to the Mansfield holding facility after his arrest,

and the pouch he was wearing during the stop contained the contraband related to his charges.

Appellant also argues that the testimony should have been excluded because its probative

value is substantially outweighed by its prejudicial effect. See TEX .R.EVID . 403 (“Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .”). If the trial court overrules an objection to the admissibility of the evidence under

Rule 404(b), the objecting party must also make a Rule 403 objection, explaining that the prejudicial

potential substantially outweighs the probative value of the evidence, in order to preserve error.

TEX .R.EVID . 403; Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App. 1990)(op. on

reh’g). Appellant made a relevance objection at trial, but he did not object based on Rule 403. We

overrule Point of Error Three.

CHARGE ERROR
 In his final point of error, Appellant challenges the trial court’s ruling on his request for jury

instructions. He complains that the trial court erred in denying his requests for instructions regarding

reasonable suspicion, probable cause, and article 38.23 of the Texas Code of Criminal Procedure.

Specifically, he maintains that Officer Nguyen’s traffic stop amounted to an illegal seizure “made

without any reasonable suspicion that he was engaged in criminal activity.”

Article 38.23

Article 38.23 of the Texas Code of Criminal Procedure prohibits the introduction of illegally

obtained evidence against the accused at a criminal trial. TEX .CODE CRIM .PROC.ANN . art. 38.23(a)

(Vernon 2005). A jury is instructed to disregard the evidence if that jury believes, or has a

reasonable doubt, that the evidence was illegally obtained. Id. An instruction under article 38.23

must be included in a jury charge only if there is a factual dispute about how the evidence was

obtained. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004). A fact issue about whether

evidence was illegally obtained may be raised from any source, and the evidence may be strong,

weak, contradicted, unimpeached, or unbelievable. Id.

The trial court did not err in denying Appellant’s request. A defendant who fails to present

or elicit testimony that raises a question of fact is not entitled to an Article 38.23 instruction. Id. at

85. A defendant’s disagreement with the conclusion that probable cause was shown as a matter of

law is not the same as a defendant controverting the facts. Id. at 86. (holding that vague suggestions

by the defendant’s counsel that the officers were on a “fishing expedition,” without more, did not

create a fact issue). The evidence at trial showed that Appellant violated the Texas Transportation

Code1 when he failed to use a turn signal as he swerved into a separate lane and nearly caused an

1
Subtitle C of Title 7 of the T exas Transportation Code contains the “Rules of the Road,” which govern
conduct of motor vehicle operators. Section 104(a) of Chapter 545 states that an operator “shall use the signal authorized
by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.” T EX .T RAN SP .C O D E
accident. When a traffic violation is committed within an arresting officer’s view, the officer may

lawfully stop and detain the person for the violation. Krug v. State, 86 S.W.3d 764, 765 (Tex.App.--

El Paso 2002, pet. ref’d). Because Officer Nguyen observed the violation, he had probable cause

to stop and detain Appellant. Krug, 86 S.W.3d at 765-67. Appellant did not present or elicit any

testimony that raised a question of fact concerning the stop. Defense counsel simply argued that the

requested instructions be given based on what was “believe[d] to be Officer Nguyen’s contradiction

of his own testimony.” And in his brief, Appellant has failed to direct us to any evidence raising a

question of fact. Because we conclude that the trial court did not err in denying the jury instruction

we overrule Point of Error Four.

REFORMATION OF THE JUDGMENT

In its brief, the State requests that we modify the judgment to delete Appellant’s conviction

of possession of cocaine. The indictment contained a single count but alleged two separate offenses

in two paragraphs. Paragraph 1 alleged that Appellant possessed less than a gram of heroin and

Paragraph 2 alleged that he possessed less than a gram of cocaine. The charge contained an

application paragraph for each offense and separate verdict forms. When multiple offenses are

properly joined in a single indictment, each offense should normally be alleged in a separate count.

Owens v. State, 96 S.W.3d 668, 672 (Tex.App.--Austin 2003, no pet.), citing TEX.CODE CRIM . PROC.

ANN . art. 21.24(a)(Vernon 2006). A count may contain as many separate paragraphs charging the

same offense as necessary. Id., citing TEX .CODE CRIM .PROC.ANN . art. 21.24(b). As a general rule,

a “count” is used to charge the offense itself and a “paragraph” is that portion of a count which

alleges the method of committing the offense. Id. at 673. When confronted with a single count that

A N N . § 545.104(a)(Vernon 1999). An operator required to give a turn signal shall do so by: (1) using the hand and arm;
or (2) lighting signal lamps. Id. § 545.106.
contains multiple allegations that are really separate offenses, the trial judge should protect the rights

of both parties by submitting the separate allegations to the jury, but in such a way as to ensure that

each allegation is decided unanimously. Martinez v. State, 225 S.W.3d 550, 555 (Tex.Crim.App.

2007). The simplest way to do that is to submit separate verdict forms, as was done in the present

case. See id. The trial court was not authorized to render judgment on both of the offenses

submitted to the jury because an indictment cannot authorize more convictions that there are counts.

Id. at 554-55. The indictment in this case is a single count indictment with two paragraphs.

Consequently, the indictment authorized only one conviction. Id. We therefore reform the judgment

to delete the conviction of possession of cocaine. We affirm the judgment as so reformed.

August 26, 2009
ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating

(Do Not Publish)