IN THE
TENTH COURT OF APPEALS
No. 10-00-144-CR
JOSE MEDINA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 265th District Court
Dallas County, Texas
Trial Court # F99-02585
O P I N I O N
A jury convicted Jose Medina of possession of amphetamine with intent to deliver in an amount of one gram or more but less than four grams. After making an affirmative deadly weapon finding, the court sentenced him to thirty years’ imprisonment. Medina claims in four points that: 1) the evidence is insufficient to prove he was in possession of amphetamine; 2) the court erred in making an affirmative deadly weapon finding; 3) the court erred by allowing a witness’s testimony in contravention of his motion in limine; and 4) the jury committed misconduct by considering evidence that the court had instructed it not to consider.
Background
Medina and passenger Jessica Darnell were asked to leave “Club 2551" in Dallas, Texas in April 1998. An eyewitness noticed Medina standing at his open trunk for a few minutes before he drove away with Darnell. As Medina was driving past the club, he allegedly fired several shots from a handgun into the air. Officers Campopiano and Grall stopped Medina and arrested him for deadly conduct. During an inventory search of the car, the police located a loaded .40-caliber Glock handgun and multiple shell casings on the floorboard of the car. The police also located in the trunk two small bags containing a white powder inside an open safe, scales, a handgun holster, and Vitamin B powder. The white powder tested positive for amphetamine.
Legal Sufficiency
Medina’s brief does not indicate whether he is challenging the legal or factual sufficiency of the evidence. Counsel should clearly specify the type of sufficiency challenge being made and state the applicable standard of review. See Brown v. State, 35 S.W.3d 183, 188 (Tex. App.—Waco 2000, pet. granted). If counsel fails to do so, we may require re-briefing under Rule of Appellate Procedure 38.9. See Tex. R. App. P. 38.9. However, if we are satisfied that the briefing rules have not been flagrantly violated, we will construe the issue presented. The argument and authorities presented in the brief may dictate whether an issue challenges the legal or factual sufficiency of the evidence or both. See Purvis v. State, 4 S.W.3d 118, 120 (Tex. App.—Waco 1999, no pet.). Otherwise, we will construe a general sufficiency challenge as a challenge to only the legal sufficiency of the evidence. See Brown, 35 S.W.3d at 188.
In Hoffman v. State, we concluded that the appellant's sufficiency point constituted a factual sufficiency challenge because he requested reversal and remand in his discussion of the relief required in the event of a favorable ruling on that point. 922 S.W.2d 663, 671 & n.6 (Tex. App.—Waco 1996, pet. ref'd). Because Medina’s brief requests relief in the form of dismissal on the sufficiency point, we construe Medina’s point to challenge the legal sufficiency only. See Id.; See Brown, 35 S.W.3d at 188.
We review a legal sufficiency challenge by considering the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)).
Affirmative Links
In his first point, Medina argues that the evidence is insufficient to affirmatively link him to the amphetamine found in the trunk of the car. He claims the State failed to introduce evidence linking him to the car he was driving and to the safe where the amphetamine was located.
The Health and Safety Code provides that a person commits an offense if the person knowingly or intentionally possesses amphetamine with intent to deliver. See Tex. Health & Safety Code Ann. §§ 481.103(a)(3), 481.113(a) (Vernon Supp. 2001). In order to establish the unlawful possession of a controlled substance, the State must prove that the accused knowingly possessed the contraband in question. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Harris v. State, 994 S.W.2d 927, 933 (Tex. App.—Waco 1999, pet. ref’d). The state accomplishes this task with “affirmative links” demonstrating he was conscious of his connection with the controlled substance and knew what it was. Id. Affirmative links tend to establish “that the accused’s connection with the contraband was more than just ‘fortuitous’” Harris, 994 S.W.2d at 993 (quoting Brown, 911 S.W.2d at 747).
Factors that may establish affirmative links between the accused and contraband include whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the contraband was in a place owned by accused; (4) the contraband was in a car driven by accused; (5) the contraband was found on the same side of the car as accused; (6) the contraband was found in an enclosed space; (7) the odor of the contraband was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct of the accused indicated a consciousness of guilt; (10) the accused had a special relationship to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; and (13) affirmative statements connect the accused to the contraband. Hurtado v. State, 881 S.W.2d 738, 745 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d.). The number of factors present is not as important as the "logical force" or the degree to which the factors, alone or in combination, tend affirmatively to link the accused to the contraband. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref'd).
Ray Vasquez, manager of Club 2551, testified that after Medina was asked to leave the club he went to a gold four-door sedan and opened the trunk. He further testified that Medina looked inside the trunk for several minutes, closed the trunk, got in the car with Darnell and left the scene. Vasquez testified that, as Medina was driving away, he fired several rounds from a handgun into the air. The record reflects that Darnell owned the gold sedan Medina was driving. Officer Grall testified that an inventory search of the trunk of the car produced several items, including the amphetamine. Grall located an open safe and a holster for a semi-automatic handgun in plain view on top of several articles of clothing. He could see several plastic bags and a soup can with another plastic bag protruding from it inside the safe. Grall testified that the holster was an exact match for the handgun found under the passenger seat of the car.
The record indicates that Medina initially opened the trunk where the amphetamine and drug paraphernalia lay in plain view, and then drove the vehicle. Applying the affirmative links factors, the record indicates that Medina: 1) exercised control over the trunk where the contraband was located; 2) exercised control over the amphetamine by driving the car; 3) knew that the matter possessed was amphetamine; and 4) viewed the paraphernalia. After reviewing this evidence in the light most favorable to the verdict, we find the evidence is legally sufficient to affirmatively link Medina to the amphetamine. Accordingly, point one is overruled.
Deadly Weapon Finding
Medina claims in his second point that the evidence is insufficient to support the court’s finding that he “used or exhibited” a deadly weapon. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2001). He contends that his possession of a handgun is in no way connected to the amphetamine found in the trunk of the car.
When the judge is the trier of fact at the punishment stage of the trial, he has the authority to make an affirmative finding if the facts show, and he believes, that the defendant himself used or exhibited a deadly weapon, even if the jury has not answered a special issue. See Fann v. State, 702 S.W.2d 602, 604 (Tex. Crim. App.1985) (opinion on reh'g); Flores v. State, 690 S.W.2d 281, 283 (Tex. Crim. App.1985); Adams v. State, 40 S.W.3d 142, 146 (Tex. App.— Houston [14th Dist.] 2000, pet. ref’d). Due course of law requires the State to give notice to an accused of its intention to seek a deadly-weapon finding. See Ex parte Patterson, 740 S.W.2d 766, 776 (Tex. Crim. App. 1987); Jordan v. State, 1 S.W.3d 153, 158 (Tex. App.—Waco 1999, pet. ref'd). "The State may give notice of its intent to seek a deadly weapon finding in one of two ways: (1) by pleading the use or exhibition of a deadly weapon in the indictment; or (2) by filing a separate pleading giving notice of such intent." Rachuig v. State, 972 S.W.2d 170, 177 (Tex. App.—Waco 1998, pet. ref'd). Here, the State filed a separate pleading to give notice to Medina of the intent to seek a deadly weapon finding.
The offense of illegal possession of a controlled substance is susceptible to an affirmative finding that the defendant used or exhibited a deadly weapon. See Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). The term “used” extends to any employment of a deadly weapon, even simple possession, if such possession facilitates the associated felony. Id. A deadly weapon is “exhibited” where it is consciously displayed during the commission of the offense. Id. The Court of Criminal Appeals has stated that “one can ‘use’ a deadly weapon without exhibiting it, but it is doubtful that one can exhibit a deadly weapon during the commission of a felony without using it.” Id. A deadly weapon is “used” during the commission of the offense of possession of contraband if it protects and facilitates the defendant’s care, custody, and management of the contraband. Id.; see also Dimas v. State, 987 S.W.2d 152, 155 (Tex. App.—Fort Worth 1999, pet. ref’d.).
In this case, the police located a loaded handgun under the passenger seat of the automobile which Medina was driving. The police also located a holster for a handgun near the amphetamine, Vitamin B powder (cutting powder), and digital scales in the trunk of the car. Further, an eyewitness saw Medina discharge the weapon. Viewing the evidence in the light most favorable to the verdict, we find that the evidence is legally sufficient to support the court’s finding that the handgun found under the passenger seat was used to facilitate Medina’s care, custody, and management of the amphetamine as well as its distribution. See id.; Gale v. State, 998 S.W.2d 221, 225-26 (Tex. Crim. App. 1999). Point two is overruled.
Motion in Limine
Medina argues in point three that the trial court improperly allowed Officer Grall to testify about statements Medina made at the time of the arrest. The court granted Medina’s motion in limine which prohibited any “alleged confession or statement of the defendant” without first approaching the bench and obtaining a ruling as to their admissibility. During direct examination of Officer Grall by the State, the following exchange took place:
Q: You didn’t make any effort to ask if the car was his or if it was here or anything like that, correct?
A: I asked Mr. Medina about the car and they said it was their car. And he also made mention that that was his wife.
MR. HOWARD: Your honor, may we approach?
THE COURT: Yes
(At the bench, off the record)
THE COURT: Ladies and gentlemen, don’t consider the last portion of the officer’s answer. The portion about his wife, don’t consider that.
Medina argues that the court improperly allowed Officer Grall’s testimony. We disagree. The proper method of preserving error is objection and ruling by the court where testimony is allegedly inadmissible or an answer is nonresponsive. See Tex. R. App. P. 33.1. In this case, we find no objection by Medina on the record. Therefore, he has failed to preserve any error in the admission of Officer Grall’s testimony. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). Point three is overruled.
Jury Misconduct
Medina argues in his fourth point that the jury improperly disregarded the trial judge’s instruction not to consider Officer Grall’s testimony about Medina’s relationship with the passenger of the car. Medina presented an affidavit from juror Christen Caudle in support of his motion for new trial. Caudle states in an affidavit that the jury discussed testimony by Officer Grall that the court specifically instructed them not to consider. Medina argues that Caudle’s affidavit is sufficient proof of jury misconduct to warrant a new trial. We disagree.
A motion for new trial based on jury misconduct must be supported by a juror's affidavit alleging "outside influences" were brought to bear upon the jury. See Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex.1987); Brantley v. State, 48 S.W.3d 318, 329 (Tex. App.—Texarkana 1999, pet. ref’d.). Texas Rule of Evidence 606(b) states that “a juror may not testify as to any matter or statement occurring during the jury’s deliberations.” Tex. R. Evid. 606(b). Rule 606(b) also prohibits any testimony of this nature from jurors by affidavit. Id. Under Rule 606(b), a juror may only testify: “1) whether any outside influence was improperly brought to bear upon any juror; or 2) to rebut a claim that the juror was not qualified to serve.” Id. No “outside influence” or juror qualification issues are raised by Medina. Accordingly, we find insufficient proof of juror misconduct to warrant a new trial. Point four is overruled.
The judgment of the trial court is affirmed.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed December 5, 2001
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[CRPM]
Nonetheless, when the trial court sustains an objection and grants a request for an instruction for the jury to disregard but denies the motion for mistrial, the issue becomes whether the trial court erred in denying the mistrial. Carlock v. State, 8 S.W.3d 717, 723 (Tex. App.—Waco 2000, no pet.); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet. ref’d). The trial court’s decision is error only if the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and was thus so inflammatory that its prejudicial effect cannot be reasonably removed from the minds of the jury by an instruction to disregard. Carlock, 8 S.W.3d at 723; Washington v. State, 822 S.W.2d 110, 118 (Tex. App.—Waco 1991), rev’d on other grounds, 856 S.W.2d 184 (Tex. Crim. App. 1993). See also Trent v. State, 925 S.W.2d 130, 133 (Tex. App.—Waco 1996, no pet.).
If the instruction cured any prejudicial effect caused by the improper argument, the reviewing court should find that the trial court did not err. Carlock, 8 S.W.3d at 723-724. If the instruction did not cure the prejudicial effect, error results, and the reviewing court proceeds with a harm analysis. Id. at 724; Washington, 822 S.W.2d at 118. Although not expressly adopted as exhaustive or definitive, the Court of Criminal Appeals has relied on the following factors to determine whether an instruction to disregard cured the prejudicial effect:
1. The nature of the error;
2. The persistence of the prosecution in committing the error;
3. The flagrancy of the violation;
4. The particular instruction given;
5. The weight of the incriminating evidence; and
6. The harm to the accused as measured by the severity of the sentence.
Veteto v. State, 8 S.W.3d 805 (Tex. App.—Waco 2000, pet. ref’d).
Applying the foregoing factors to this case, any prejudice caused by the prosecution’s argument was immediately cured by the trial court’s instruction. The prejudicial effect of the argument was not of such a nature that it could not be cured by an instruction to disregard. The jury was instructed to not consider the prosecution’s argument for any purpose. Furthermore, it cannot be argued that the prosecution was persistent in committing the error because the argument was only mentioned once. The argument was not so flagrant or offensive that the timely instruction to disregard did not cure the prejudicial effect, if any. Thus, I conclude that the court’s instruction was sufficient. I would overrule Ward’s second issue.
Conclusion
Having resolved both issues against Ward, I would affirm the judgment of the trial court. Because the majority does not, I respectfully dissent.
TOM GRAY
Justice
Dissenting opinion delivered and filed on May 23, 2001
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