Danny Scott Carter v. State

Carter v. State

NO. 10-89-061-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

          DANNY SCOTT CARTER,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

* * * * * * * * * * * * *

From 66th Judicial District Court

Hill County, Texas

Trial Court # 29,112

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

           A jury convicted Appellant of theft and assessed his punishment at eighteen years in prison and a $5,000 fine. We must decide if he was convicted of felony theft, misdemeanor theft or if he is entitled to an acquittal. See Tex. Penal Code Ann. § 31.03(e) (Vernon Supp. 1991). We will acquit Appellant.

          The indictment charged Appellant with third-degree felony theft by alleging that he unlawfully appropriated property of another "under the value of $750" and that he had been convicted two or more times of theft. See id. at § 31.03(e)(4)(E). The indictment also alleged a prior burglary conviction by way of enhancement. The State presented no evidence of the prior theft convictions during the guilt-innocence stage of the trial. At the end of the testimony, the court charged the jury:

Now if you find from the evidence beyond a reasonable doubt that on or about... in Hill County, Texas, the [Appellant]... did unlawfully appropriate from [complainant], the owner, one (1) AM-FM stereo and one (1) eight inch vise, without the effective consent of said owner with intent to deprive the owner of said property and that the value of said property was less than $750.00, then you will find the [Appellant] guilty as charged in the indictment.

The charge did not mention the prior theft convictions and did not contain a charge on lesser-included offenses. The jury returned a guilty verdict. During the punishment phase, the court charged the jury on the punishments applicable if the jury found that Appellant had been convicted of all three prior offenses, if he had only been convicted of the prior theft offenses, or if he had been convicted of no prior offenses. The jury returned a verdict that Appellant had been convicted of all three prior offenses and assessed his punishment accordingly.

          Appellant complains of the court's failure to require the jury to find that he was convicted of the prior theft offenses at the guilt-innocence phase of the trial and alleges that the evidence was insufficient to sustain the judgment.

          We note in passing that the district court of Hill County has concurrent jurisdiction of misdemeanor offenses, so that a misdemeanor offense could be tried in the district court. See Tex. Gov't Code Ann. § 24.168 (Vernon 1988). That fact did not, however, determine our disposition of this case.

          Since the adoption of the statute authorizing third-degree felony punishment for theft of property under the value of $200 (now $750) when the defendant has been convicted two or more times of any grade of theft, confusion has surrounded the use of the term "enhancement" when describing the role of the prior theft offenses required in the indictment to charge the offense. Tex. Penal Code Ann. § 31.03(e)(4)(E) (Vernon Supp. 1991); Gant v. State, 606 S.W.2d 867, 869 n.2 (Tex. Crim. App. [Panel Op.] 1980). Strictly speaking, the allegations of prior theft offenses in indictments for this purpose are not "enhancements," but are "elements of the offense" and are "jurisdictional" in the sense that they must be included in an indictment to allege the third-degree felony theft proscribed by the statute. Gant, 606 S.W.2d at 871-72 n.9. Because the prior theft offenses are elements of the offense, that portion of the indictment alleging them should be read to the jury at the beginning of the guilt-innocence phase of the trial, evidence of them should be permitted during that phase, and the guilt-innocence charge must require the jury to find the prior theft offenses before returning a general guilty verdict of third-degree felony theft. Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon Supp. 1991); Gant, 606 S.W.2d at 871-72 n.9.

          Gant teaches that Appellant must be acquitted because (1) there was no finding during the guilt-innocence stage that he had been twice convicted of theft, (2) there is no proscription against theft of property "under the value of [$750]," and (3) no lesser-included offense was submitted for the jury's consideration. See Tex. Penal Code Ann. § 31.03(e)(1),(2),(3) (Vernon Supp. 1991); Gant 606 S.W.2d at 872 n.10. Gant does not explicitly hold that there are no lesser-included offenses within this variety of third-degree felony theft, although the opinion may be subject to that interpretation. See Gant 606 S.W.2d at 872 n.10

          We hold that the State, by failing to prove the prior theft convictions during the guilt-innocence stage of the trial, failed to prove all the elements of the offense of third-degree felony theft. See Tex. Penal Code Ann. § 31.03(e)(4)(E) (Vernon Supp. 1991).

          Because our understanding of the Gant decision forecloses any result other than an acquittal, we do not reach Appellant's other points. See Gant, 606 S.W.2d 867. We reverse the judgment and remand the case to the trial court with instructions to enter a judgment of acquittal.

 

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas, Justice Cummings,

          and Justice Vance

Reversed and remanded

Opinion delivered and filed February 14, 1991

Publish

 

n:justify;line-height:200%'>AFFIRMATIVE LINKS

To establish the offense of unlawful possession of a controlled substance, the State must show that the accused exercised actual care, custody, control, or management over the contraband and knew that what he possessed was contraband.  Humason v. State, 728 S.W.2d 363, 365 (Tex. Crim. App. 1987).  The control over the contraband need not be exclusive, but can be jointly exercised by more than one person.  Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986).  When the accused is not in exclusive control of the place where the contraband is found, the State must show additional affirmative links between the accused and the contraband to show his or her knowledge of or control over the contraband.  Id.

            "Affirmative links" is a shorthand expression to identify what must be proven in a prosecution for the possession of illegal drugs.  Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  An accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was.  Evidence which affirmatively links him to it suffices for proof that he possessed it knowingly.  Id.  This evidence may be direct or circumstantial.  Id.  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.  Id.  This is the whole of the so-called "affirmative links" rule.  Id.  It is a shorthand expression of what must be proven to establish that a person possessed some kind of drug "knowingly or intentionally."  Id.

            The affirmative links analysis also applies to possession of firearms.  Bollinger v. State, 224 S.W.3d 768, 773 (Tex. App.—Eastland 2007, pet. filed) (“When the firearm is not found on the accused's person or is not in the accused's exclusive possession, additional facts must affirmatively link the accused to the firearm.”).

APPLICATION

            With these standards in mind, we turn to Jason’s contentions that the evidence that he was in possession of the gun or cocaine is legally or factually insufficient to sustain the convictions, considering the evidence presented at trial.

Jason points to the testimony of members of his family, the fact that the investigation prior to the search was focused on Kevin (officers testified that they never received any information about Jason prior to the search), the search warrant that contained only Kevin’s name, the absence of Jason’s fingerprints in the second bedroom, the fact that neither the gun nor the cocaine was found on Jason’s person, and the fact that Jason was in the living room at the time the search began to demonstrate that a rational jury could not have determined possession beyond a reasonable doubt.  He further says the evidence shows that the cocaine was not in plain view, no conduct indicating a consciousness of guilt, no special relationship with the cocaine, and no recent consumption of drugs.

The State maintains that the evidence that Jason lived at the residence and exercised care, custody, and control over the gun and cocaine is “overwhelming,” saying “the jury simply rejected his theory.”

As we have noted, in a legal sufficiency review, we do not resolve conflicts of fact or assign credibility to the witnesses, and inconsistencies in the evidence are resolved in favor of the verdict.  See Curry, 30 S.W.3d at 406; Dewberry, 4 S.W.3d at 740.  Applying this standard, we find that a rational jury could have credited the evidence showing that Jason lived at 1321 Spring Street and disregarded the contrary evidence to find that he exercised joint control over the cocaine and the gun and find him guilty beyond a reasonable doubt.  Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789; Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (We are in the position of a final, due process safeguard, ensuring only the rationality of the fact finder.); Cude, 716 S.W.2d at 47.  We thus reject his contentions that the evidence is legally insufficient.

            Related to factual sufficiency, our task is to review the evidence weighed by the jury that tends to prove the existence of the elemental fact of knowing possession and compare it with the evidence that tends to disprove that fact.”  Johnson, 23 S.W.3d at 7.  Again, we do not indulge in inferences or confine our view to only the evidence favoring one side of the case.  Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment.  Id.  Utilizing this standard in a neutral review, we cannot find that the evidence demonstrates either that the proof tending to show that Jason was affirmatively linked to the cocaine and the gun is so weak or that conflicting evidence that he had little connection to the residence is so strong as to render the jury’s verdict clearly wrong and manifestly unjust.  Watson, 204 S.W.3d at 414-15; see also Bollinger, 224 S.W.3d at 774-75; Brown, 911 S.W.3d at 747.  Thus, we reject Jason’s factual sufficiency complaints.

            We overrule issues one and two.

CONCLUSION

            Having rejected Jason’s issues, we affirm the judgment.

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 1, 2007

Do not publish

[CR25]

---

[1] Kevin identified a bill in Jason’s name from the city of Waco for water and sewer service at the residence.  He said he gave Jason the money to turn the lights, water, sewer, and cable service on and that the phones were in his cousin’s name.