IN THE
TENTH COURT OF APPEALS
No. 10-08-00017-CR
Samuel Loy Graham, Jr.,
Appellant
v.
The State of Texas,
Appellee
From the County Court at Law No. 1
Brazos County, Texas
Trial Court No. 05-02232-CRM-CCL1
MEMORANDUM Opinion
A jury found Samuel Loy Graham, Jr. guilty of possession of marijuana in an amount less than two ounces. The trial court sentenced Graham to 180 days in jail and a $2,000 fine, with the sentence being suspended for one year of community supervision and $1,500 of the fine probated.
Graham’s appellate counsel filed an Anders brief presenting two potential issues that he determined are without merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Although informed of his right to do so, Graham did not file a pro se brief or response. The State did not file a brief. We will affirm.
In an Anders case, we must, “after a full examination of all the proceedings, [] decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000, pet. ref’d); see generally Villanueva v. State, 209 S.W.3d 239, 243-44 (Tex. App.—Waco 2006, no pet.). An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988). Arguments are frivolous if they “cannot conceivably persuade the court.” Id. at 426, 108 S. Ct. at 1901. An appeal is not frivolous if based on “arguable grounds.” Stafford, 813 S.W.2d at 511.
Appellate counsel first addresses whether the evidence is legally and factually sufficient to support the conviction and concludes that it is sufficient. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23 S.W.3d at 7.
The State was required to prove beyond a reasonable doubt that Graham knowingly or intentionally possessed a usable quantity of marijuana in an amount of two ounces or less. See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003). The Court of Criminal Appeals has provided the following explanation for the “so-called ‘affirmative links’ rule”:
[I]n a possession of a controlled substance prosecution, “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.” Regardless of whether the evidence is direct or circumstantial, it must establish that the defendant’s connection with the drug was more than fortuitous. This is the so-called “affirmative links” rule which protects the innocent bystander—a relative, friend, or even stranger to the actual possessor—from conviction merely because of his fortuitous proximity to someone else’s drugs. Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs. However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., “links”), may well be sufficient to establish that element beyond a reasonable doubt. It is, as the court of appeals correctly noted, not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial.
Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (quoting Evans v. State, 185 S.W.3d 30, 34 (Tex. App.—San Antonio 2005)) (footnotes omitted). Thus, there must be direct or circumstantial evidence establishing that Graham exercised control, management, or care over the controlled substance and knew it was contraband. See id. at 161-62.
The evidence showed that Bryan police officers were attempting to serve warrants on a person who, according to an anonymous tip, was at Graham’s residence. After the officers knocked, a small child opened the door. Sergeant Thane testified that he immediately noticed the odor of burnt marijuana. Although Graham refused consent for the officers to enter and search the residence, they entered and found a half-smoked marijuana cigar on the entertainment center. Sergeant Thane said that Graham admitted that the marijuana cigar was his. At trial, Graham testified that the marijuana did not belong to him, but he admitted that it was in his home and that he had admitted to the officers that it belonged to him.
We agree with counsel that sufficiency of the evidence is not an issue that might arguably support an appeal.
Graham’s appointed counsel next addresses whether prosecutorial misconduct caused reversible error. During Sergeant Thane’s testimony, the prosecutor asked the trial judge if she could “have just a moment to inform the officer of a needed fact” and that she needed to “take him outside for a second.” Graham’s trial attorney did not object to this action, and the record does not indicate what the conversation was between the prosecutor and witness. Prosecutorial misconduct must be preserved by a timely objection for appellate review. See Tex. R. App. P. 33.1(a); Perkins v. State, 902 S.W.2d 88, 96 (Tex. App.—El Paso 1995, no pet.). Because the possible misconduct was not preserved, we agree with counsel that it is not an issue that might arguably support an appeal.
We have also conducted an independent review of the record, and because we find this appeal to be wholly frivolous,[1] we affirm the judgment. Counsel must send Graham a copy of our decision by certified mail, return receipt requested, at Graham’s last known address. Tex. R. App. P. 48.4. Counsel must also notify Graham of his right to file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s motion to withdraw, effective upon counsel’s compliance with the aforementioned notification requirement as evidenced by “a letter [to this Court] certifying his compliance.” See Tex. R. App. P. 48.4.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the judgment to the extent it grants the motion to withdraw and affirms the judgment of the trial court. He does not join the opinion. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed October 28, 2009
Do not publish
[CR25]
[1] We note that trial counsel’s failure to object to the possible prosecutorial misconduct does not arguably support an appeal asserting ineffective assistance of counsel because the appellate record in this case does not evidence the reasons for trial counsel’s conduct, and because the possible deficiency could have been the subject of trial strategy not revealed by the record. See Jones v. State, 170 S.W.3d 772, 776-77 (Tex. App.—Waco 2005, pet. ref’d).
rchterm1>evidence, as in the instant case, the admission of the hearsay is properly deemed harmless and does not constitute reversible error.” Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986); Shaw v. State, 122 S.W.3d 358, 364 (Tex. App.—Texarkana 2003, no pet.); see Lane, 151 S.W.3d at 193. Any error in admitting Matthews’s testimony was harmless. See Anderson, 717 S.W.2d at 627.
Jury Instruction
In Garner’s third point, he takes issue with the following jury instruction:
You are instructed that an “accomplice,” as the term is here used, means anyone connected with the crime charged, as a party thereto, and includes all persons who are connected with the crime by unlawful act or omission on their part transpiring either before or during the time of the commission of the offense, and whether or not they were present and participated in the commission of the crime.
(emphasis added). The court overruled Garner’s objection to the term “omission.”
An accomplice “participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental state.” Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006); Johnson v. State, No. 08-05-00165-CR, 2007 Tex. App. Lexis 1081, at *22 (Tex. App.—El Paso Feb. 15, 2007, no pet.). Participation includes an “affirmative act or omission” that “promotes the commission of the offense with which the defendant is charged.” Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998); Cocke, 201 S.W.3d at 748; Johnson, 2007 Tex. App. Lexis 1081, at *22. The court’s definition comports with this meaning of “accomplice” and is a proper accomplice-witness instruction. See Hardie, 79 S.W.3d at 629.
Improper Jury Argument
In his fourth and fifth points, Garner complains of improper jury argument. Garner did not object to the specific statements that he challenges and has failed to preserve his complaint for appeal. See Tex. R. App. P. 33.1(a); see also Bible v. State, 162 S.W.3d 234, 248 (Tex. Crim. App. 2005); Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).
Testimony of Sergeant Charles Peters
Garner’s sixth point challenges three portions of Peters’s testimony as hearsay.
STATE: Okay. And -- I just want to back up for one second. In that first interview, did the defendant ever make a statement that Donovan was trying to say that he, Mr. Garner, helped him rob the store?
PETERS: Yes, sir. He made a statement that indicated the defendant here -- if you’ll give me just a minute.
DEFENSE COUNSEL: Judge, I ask that he testify from his own recollection and not read from a report.
COURT: Well, you’re going to get to look at whatever he’s reviewing.
DEFENSE COUNSEL: Okay. Yes, sir.
Because Garner did not object to this testimony as hearsay, his objection does not comport with his complaint on appeal. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
Peters also addressed whether Mills explained Garner’s role in the robbery:
PETERS: They will. He indicated that they had rode over to the store together and that Mr. Garner had said something about knowing places where he could get some money. And when I asked Mr. Mills about what he meant by “getting money,” he said that he meant robbing the place.
STATE: Okay. Did he say anything else about Mr. Garner’s involvement in terms of the actual job that they were supposed to do, the duties that each one had, or how he was supposed to discard of his clothes?
PETERS: He indicated that Mr. Garner had said that he knew some folks --
DEFENSE COUNSEL: I object to hearsay at this point, if we’re going to have the actual witness to testify to what that person said.
STATE: Your Honor, under 803, statement against interest, the statement by the declarant is admissible not only against the declarant but against any coconspirator.
COURT: Objection overruled.
STATE: You can go ahead.
PETERS: He indicated that he knew some folks that were doing -- had done some other robberies. And he said that you could -- all you had to do was take and act like nothing happened and get rid of your clothes and everything.
Garner contends that this testimony constitutes hearsay, introduced evidence of extraneous acts, and violates the Confrontation Clause. Garner has not preserved his extraneous offense or Confrontation Clause complaints. See Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (Rule 404 objection required to preserve extraneous offense complaint); see also Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (hearsay objection does not preserve complaint for Confrontation Clause claim).
Mills later testified to similar facts, without objection. The State asked Mills whether Garner had thought of a “better way to get money,” to which Mills responded, “robbing a store.” Mills testified that Garner told him to burn his clothes in order to get away with the robbery and that Garner mentioned that someone he knew committed robbery without getting caught. In light of Mills’s unobjected to testimony, any error in admitting Peters’s testimony would be harmless. See Anderson, 717 S.W.2d at 627; see also Lane, 151 S.W.3d at 193; Shaw, 122 S.W.3d at 364.
Finally, Garner complains of one other portion of Peters’s testimony. However, he did not object to this testimony; thus, no complaint is preserved. See Tex. R. App. P. 33.1(a); see also Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999).
Extraneous Offenses
Garner’s seventh and eighth points challenge portions of Mills’s testimony as extraneous offense evidence. Mills testified that Garner offered him $300 to keep his “mouth shut,” that he and Garner were “smoking some drugs” on the day of the robbery, and that they sometimes “smoke weed, drink some beer, hang out.” However, Garner did not object to this testimony; thus, no complaint is preserved. See Tex. R. App. P. 33.1(a); see also Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999); Tucker, 990 S.W.2d at 262.
Hearsay, Speculation, and Extraneous Offenses
Garner’s ninth point lists over fifty citations to the record, complaining that his conviction was obtained by inadmissible hearsay, speculation, extraneous offense evidence, and uncorroborated accomplice witness testimony.[1] Much of this testimony was elicited by Garner’s own counsel. Of the objected to testimony, the court sustained one objection and we addressed the other in Garner’s sixth point. Garner lodged no objections to the remaining testimony; his complaint is not preserved. See Tex. R. App. P. 33.1(a); see also Medina, 7 S.W.3d at 643; Tucker, 990 S.W.2d at 262.
Deadly Weapon Finding
Garner’s tenth point contends that the evidence is insufficient to show that he used or exhibited a firearm or knew that a firearm would be used; thus, the court erred by making an affirmative deadly weapon finding. [2]
“[W]hen there is an ‘affirmative finding’ by the fact-finder that during the offense, ‘the defendant used or exhibited [a] deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited,’ the trial court must enter that finding in the judgment, and if the deadly weapon is a firearm, that fact shall also be entered.” Parker v. State, 119 S.W.3d 350, 358 (Tex. App.—Waco 2003, pet. ref’d) (quoting Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon 2006)). If a jury is the finder of fact, the trial court may enter an affirmative finding on the use of a deadly weapon where: (1) the indictment includes an allegation of a “deadly weapon,” and the verdict states the defendant is guilty as charged in the indictment; (2) the indictment does not allege “deadly weapon,” but does allege a weapon that is a deadly weapon by design, and the verdict states the defendant is guilty as charged in the indictment; or (3) the jury has affirmatively answered a special charge issue on “deadly weapon” use or exhibition. Id. (quoting LaFleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003); Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985)).
The indictment alleges that Garner committed aggravated robbery by using or exhibiting a deadly weapon, “to wit-a firearm.” The court instructed the jury that an aggravated robbery is one committed by a person who “uses or exhibits a deadly weapon.” The court also instructed the jury on the law of the parties. The application paragraph instructed that Garner could be found guilty of aggravated robbery if he possessed the requisite intent and conduct. The jury found Garner “guilty of the offense of Aggravated Robbery as charged in the indictment.” Thus, it essentially found that Garner was a party to the robbery and knew a deadly weapon would be used during the robbery. Accordingly, “the jury necessarily made the factual finding to support the entry of an affirmative finding of the use or exhibition of a deadly weapon upon the judgment.” Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see Bell v. State, 169 S.W.3d 384, 398-99 (Tex. App.—Fort Worth 2005, pet. ref’d). The court did not err in entering the affirmative finding in the judgment. See id; see also Parker, 119 S.W.3d at 358-59.
In summary, having addressed each of Garner’s ten points of error, we find that Garner has not presented any issues of arguable merit. See Bledsoe, 178 S.W.3d at 827; see also Villanueva, 209 S.W.3d at 243.
Independent Review
We have conducted an independent review of the record to determine whether any other arguable grounds for appeal exist. The record contains several objections lodged by Garner, none of which give rise to any issues of arguable merit. Accordingly, we agree with counsel that Garner’s appeal presents no issues of arguable merit. Counsel must advise Garner of the disposition of this appeal and of his right to file a pro se petition for discretionary review. See Villanueva, 209 S.W.3d at 249; see also Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006). We grant counsel’s motion to withdraw as Garner’s appellate counsel, effective upon his notifying Garner of our decision and of his right to file a pro se petition for discretionary review. See Villanueva, 209 S.W.3d at 249; see also Meza, 206 S.W.3d at 689.
The judgment is affirmed.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed May 30, 2007
Do not publish
[CR25]
[1] Although Garner states his ninth point as “the trial court erred when it failed to protect the Defendant’s Sixth Amendment right to effect assistance of counsel,” the substance of his argument does not address this claim.
[2] Garner’s tenth point states that “the trial court erred in its instruction to the jury in regard to the ‘use’ of a deadly weapon; necessary elements weren’t proven.” However, the substance of his argument addresses the court’s authority to enter the finding.