IN THE
TENTH COURT OF APPEALS
No. 10-06-00311-CR
In re Carl Long
Original Proceeding
MEMORANDUM Opinion
Carl Long seeks a writ of mandamus compelling Respondent, the Honorable John H. Jackson, Judge of the 13th District Court of Navarro County, to address and resolve certain issues identified in an order of the Court of Criminal Appeals. Specifically, Long contends that Respondent failed to address four of at least twelve issues the Court of Criminal Appeals identified in an order issued by that Court on December 7, 2005. See Ex parte Long, No. WR-34,986-06, 2005 WL 3307083 (Tex. Crim. App. Dec. 7, 2005) (not designated for publication). However, because Long had an adequate remedy at law, we will deny his mandamus petition.
The on-line case information for Long’s habeas proceeding in the Court of Criminal Appeals, docketed under cause no. WR-34,986-06, reflects that the Court received Long’s habeas application in October 2005. On December 7, the Court issued an order requiring Respondent to conduct a hearing and make findings on at least twelve issues so the Court could address the merits of the habeas application. See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(d) (Vernon 2005).
According to Long, Respondent conducted this hearing on March 2. The Court of Criminal Appeals received a reporter’s record and other supplemental documents in May, and the writ application was submitted for decision on May 23. Based on Respondent’s findings, the Court of Criminal Appeals denied Long’s writ application without a written order on June 14. The Court denied Long’s motion for reconsideration on June 27.
“Mandamus relief may be granted if the relator shows the following: (1) that the act sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law.” DeLeon v. Dist. Clerk, 187 S.W.3d 473, 474 (Tex. Crim. App. 2006) (per curiam) (quoting Winters v. Presiding Judge of Crim. Dist. Ct. No. 3, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003)).
Here, the issues Long raises in his mandamus petition could have been raised in the motion for reconsideration he filed with the Court of Criminal Appeals.[1] Thus, he had an adequate remedy at law.
Accordingly, we deny the mandamus petition.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the result without a separate opinion)
Petition denied
Opinion delivered and filed November 1, 2006
Do not publish
[OT06]
[1] Long may have raised these issues in the Court of Criminal Appeals, but we cannot determine this from the limited information available.
a sex offender with the Ellis County Sheriff every ninety days. See Penal Code, 63d Leg., R.S., ch. 883, § 1, sec. 21.03(a), 1973 Tex. Gen. Laws 883, 916 (amended 1981) (repealed 1983) (current version at Tex. Penal Code Ann. § 22.021(a) (Vernon Supp. 2007)). When Deputy Steve McKinney became the sheriff’s deputy responsible for registering sex offenders for Ellis County, he orally went over the registration requirements again with all of the county’s registrants and gave them written notice of the requirements; and they, including King, signed acknowledgments that they had received and understood the requirements. See Tex. Code Crim. Proc. Ann. art. 62.051(b)-(d) (Vernon 2006). King testified that he knew the registration requirements.
King last registered on October 3, 2006. When King then registered, he stated his residence as an address on East Pecan Tree Road, a trailer home outside the city limits of Waxahachie, in Ellis County. The ninetieth day thereafter was January 1, 2007. On January 1, 2007, Deputy Amy Ellison became the sheriff’s deputy responsible for registering sex offenders.
The ninety-eighth day, the last day on which King could register in compliance with the registration requirements, after King had last registered was January 9, 2007. Deputies McKinney and Ellison testified that King had not contacted them to register. Deputy Ellison first became aware of King when King’s parole officer contacted her to tell her of a warrant for King’s arrest for a violation of parole requirements. By the time of King’s arrest in February, 2007, he had not registered.
King testified that he was not certain that he had attempted to contact the sheriff’s office to register. King testified that he decided not to report to the sheriff’s office because he knew that he would be arrested for the parole violation if he reported. In order to avoid sheriff’s deputies, King was moving his possessions out of his residence on Pecan Tree Road and into a storage locker by night, and sleeping in the storage locker by day. When a deputy sheriff attempting to execute the arrest warrant on King did find him on Pecan Tree Road, King gave the deputy a false name and date of birth. King told that deputy that the “next time when [King] g[o]t[] out . . . they’d never find him again.” (4 R.R. at 55.)
Viewing the evidence in the light most favorable to the prosecution, we hold that a rational juror could have found beyond a reasonable doubt that King intentionally did not comply with the ninety-day sex-offender registration requirement. The evidence was legally sufficient.
We overrule King’s first issue.
Objections to Evidence. In King’s second issue, he contends that the trial court erred in overruling King’s objections to evidence. King complains generally of evidence of his possession of about three and a half grams of methamphetamine and some marihuana. See Tex. Health & Safety Code Ann. § 481.102(6) (Vernon Supp. 2007), §§ 481.112, 481.115, 481.120-481.121 (Vernon 2003).
“[A] trial court’s ruling admitting or excluding evidence is reviewed on appeal for abuse of discretion.” Ramos v. State, 245 S.W.3d 410, 417 (Tex. Crim. App. 2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (op. on orig. submission)); accord Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). The abuse-of-discretion “standard requires an appellate court to uphold a trial court’s admissibility decision when that decision is within the zone of reasonable disagreement.” Powell v . State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); accord Bigon v. State, Nos. PD-1769-06 & 1770-06, 2008 Tex. Crim. App. LEXIS 1, at *13-14 (Tex. Crim. App. Jan. 16, 2008); Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996); Montgomery at 391.
In the punishment phase of trial, evidence is admissible “as to any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2007). The scope of punishment evidence includes “any . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible . . . .” Id. Such evidence is admissible, “but only if the state can offer proof that would allow a reasonable fact-finder to conclude, beyond a reasonable doubt, that the appellant could be held criminally responsible for the act.” Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007) (citing Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999)).
King argues that “the evidence showed beyond a reasonable doubt that [he] was not present at the time of the search” of the premises where the methamphetamine and marihuana were found “and seizure” of that contraband. (Br. at 20; see id. at 21, 23.) We understand King to argue the lack of an affirmative link between himself and the contraband. “[T]he so-called ‘affirmative links’ rule . . . protects the innocent bystander—a relative, friend, or even a stranger to the actual possessor—from conviction merely because of his fortuitous proximity to someone else’s drugs.” Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (internal footnote omitted); see Duff v. State, 546 S.W.2d 283, 287 (Tex. Crim. App. 1977); Hineline v. State, 502 S.W.2d 703, 705 (Tex. Crim. App. 1973).
When a defendant is not in exclusive possession or control of the place where the drugs are found, the State must affirmatively link the defendant with the drugs. [Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.—Texarkana 2004, no pet.).] Factors which have been considered affirmative links include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) the accused being under the influence of contraband when arrested; 5) the accused’s possession of other contraband when arrested; 6) the accused’s incriminating statements when arrested; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) the accused’s right to possession of the place where contraband was found; and 12) drugs found in an enclosed place. Id.
Medina v. State, 242 S.W.3d 573, 576 (Tex. App.—Waco 2007, no pet.) (mem. op.); see Harris v. State, 994 S.W.2d 927, 933 (Tex. App.—Waco 1999, pet. ref’d); Foster v. State, 814 S.W.2d 874, 882 (Tex. App.—Beaumont 1991, pet. ref’d). “It is . . . not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.
Evidence that a defendant was not at a residence when contraband was found there does not conclusively show the absence of affirmative links to the contraband. See Salazar v. State, 87 S.W.3d 680, 684 (Tex. App.—San Antonio 2004, no pet.).
King testified that his address, and his only residence, was that on East Pecan Tree Road, where he lived with his son.
On January 2, 2007, law-enforcement officers went to the Pecan Tree Road address. King was not there at the time; his son and others were. The officers saw marihuana in plain view and smelled the odor of burnt marihuana. In a search pursuant to a search warrant, officers found, in plain view in King’s bedroom, methamphetamine and marihuana, along with a photograph of King.[1] The officers found other methamphetamine and drug paraphernalia such as syringes in King’s bedroom. Also in the trailer were documents from an employment agency addressed to King at the address on East Pecan Tree Road, and documents from the Board of Pardons and Paroles concerning the revocation of King’s parole. King’s son stated that King had been home earlier in the day.
King’s son called King on the telephone during the search, and King stated that he was in Oklahoma, though he was nearby at a friend’s house. For the reasons stated above in our determination of King’s first issue, King otherwise sought to avoid law-enforcement officers.
King’s sex-offender counselor testified that King’s “drugs of choice” included methamphetamine and marihuana. (6 R.R. at 104.) King’s parole officer testified that King’s parole had been revoked in the past, and King had received sanctions short of revocation, because of King’s use of controlled substances. The reason for King’s parole-revocation warrant in January, 2007, was his positive urinalysis for marihuana.
King had the right to possession of the premises on East Pecan Tree Road, where the contraband was accessible to him. King was known to possess the controlled substances found there. King sought to evade law-enforcement officers there. The trial court did not abuse its discretion in finding that reasonable jurors could have believed that King possessed the methamphetamine and marihuana.
We overrule King’s second issue.
Conclusion. Having overruled King’s issues, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed May 28, 2008
Do not publish
[CRPM]
[1] The State points to evidence of marihuana found in plain view in the common area of King’s residence and methamphetamine found in plain view in King’s bedroom, to which evidence King did not object. “An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.” Lane v. State, 151 S.W.3d 188, 192 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)) (alteration in Lane); see Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). We assume without deciding that the evidence admitted without objection did not cure any error in the admission of evidence to which King did object.