NOS. 12-06-00125-CR
12-06-00126-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JACOBY L. JONES, § APPEAL FROM THE 294TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Appellant Jacoby L. Jones of possession of more than four ounces but less than five pounds of marijuana, a state jail felony. The jury also found Appellant guilty of the state jail felony of evading arrest or detention in a vehicle. The indictments in both cases alleged that Appellant had been convicted of two felony offenses. Appellant pleaded “true” to the enhancement allegations, and the jury assessed his punishment in each case at imprisonment for twenty years and a $10,000 fine. Appellant contends that the convictions are not supported by legally or factually sufficient evidence. We affirm.
Background
Trooper Brady Lunceford stopped a car driven by Appellant on Interstate Highway 20 for twice failing to signal a change of traffic lanes. The only other occupant of Appellant’s car was a Mr. Ingram. Trooper Lunceford testified that in talking to Appellant and Ingram, he developed a suspicion that the automobile contained contraband. Both occupants told him they had driven from Illinois to Dallas to meet some strippers, but neither of them could tell how they had met the exotic dancers they had come so far to see. Appellant told Trooper Lunceford the car belonged to Ingram. But Ingram first stated that he did not know who owned the car, and then said it belonged to a friend of his cousin. Their stated destination was Chicago, but they were traveling on Interstate 20 rather than Interstate 30, the most direct route from Dallas to Illinois. Trooper Lunceford also noted that Appellant seemed abnormally nervous.
Trooper Lunceford told Appellant that he was giving him a warning ticket, but he also asked Appellant for consent to search the vehicle. Appellant refused. Trooper Lunceford then told Appellant to stand farther from the highway and wait while he called for a drug dog. Instead of waiting, Appellant ran to the car. Trooper Lunceford ordered Appellant to stop and chased him to his vehicle. Despite Trooper Lunceford’s warning, Appellant drove away. The officer returned to his patrol car, pursued Appellant, and stopped his vehicle some distance down the highway. Trooper Lunceford searched the vehicle where he discovered a brick of marijuana between the driver’s seat and the front passenger seat.
Sufficiency of the Evidence–Standard of Review
In four issues, Appellant challenges the legal and factual sufficiency of the evidence to support his convictions. The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). In reviewing factual sufficiency, we must ask 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 our confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).
Evading Arrest
In his first two issues, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction for evading arrest or detention in a vehicle.
A person commits an offense if (1) he intentionally flees (2) from a person he knows to be a peace officer (3) attempting lawfully to arrest or detain him. Tex. Penal Code Ann. § 38.04(a) (Vernon 2003). The offense is a state jail felony if the actor uses a vehicle while the actor is in flight. Id. § 38.04(b)(1).
A temporary investigative detention is reasonable, and therefore constitutional, if (1) the officer’s action was justified at the detention’s inception, and (2) the detention was reasonably related in scope to the circumstances that justified the initial interference. Terry v. Ohio, 392 U.S. 1, 18-19, 88 S. Ct. 1868, 1878, 20 L. Ed. 2d 889 (1968). To be justified, the officer must be able to point to specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Id., 392 U.S. at 21, 88 S. Ct. at 1880; Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). An investigative stop must be temporary and last no longer than is necessary to accomplish its purpose. Davis, 947 S.W.2d at 243 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983)). We review the reasonableness of the detention from the same standpoint as the officer: using an objective standard, we ask whether the facts available to him at the moment of detention would warrant a person of reasonable caution in the belief that the detention was appropriate. Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880; Davis, 947 S.W.2d at 243.
An officer’s decision to stop a motorist is reasonable if the officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). During a routine traffic stop, the officer is permitted to detain the individual to check for outstanding warrants. See id. In Kothe v. State, 152 S.W.3d 54 (Tex. Crim. App. 2004), the court of criminal appeals explained as follows:
On a routine traffic stop, police officers may request certain information from a driver, such as a driver’s license and car registration, and may conduct a computer check on that information. It is only after this computer check is completed, and the officer knows that this driver has a currently valid license, no outstanding warrants, and the car is not stolen, that the traffic-stop investigation is fully resolved. It is at this point that the detention must end and the driver must be permitted to leave.
Id. at 63-64. The court continued that
neither the Fourth Amendment nor the Supreme Court dictate that an officer making a Terry traffic stop must investigate the situation in a particular order. A traffic stop may involve both an investigation into the specific suspected criminal activity and a routine check of the driver’s license and car registration. Only if a license check “unduly prolongs” the detention is the officer’s action unreasonable under the circumstances.
Id. at 65. The officer may also request liability insurance information, the driver’s destination, and the purpose of the trip. See Veal v. State, 28 S.W.3d 832, 835 (Tex. App.–Beaumont 2000, pet. ref’d); see also Willis v. State, 192 S.W.3d 585, 590-91 (Tex. App.–Tyler 2006, no pet.). While the officer waits for the result of a computer warrant check, his questioning of the person detained about matters unrelated to the initial traffic stop does not violate the Fourth Amendment, because such questioning does not extend the duration of the detention. Haas v. State, 172 S.W.3d 42, 50 (Tex. App.–Waco 2005, pet. ref’d) (citing United States v. Sharpe, 470 U.S. 675, 687, 105 S. Ct. 1568, 1576, 84 L. Ed. 2d 605 (1985)). “The propriety of the stop’s duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly.” Davis, 947 S.W.2d at 245 (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605 (1985)). A prolonged interrogation exceeding the scope of the initial stop may cease to be an investigative stop. See Haas, 172 S.W.3d at 50. There is, however, no rigid time limitation. Herrera v. State, 80 S.W.3d 283, 288 (Tex. App.–Texarkana 2002, pet. ref’d).
A traffic stop may turn into a proper nonarrest investigatory detention, but the second stage of the seizure must be supported by the reasonable suspicion required for investigatory detentions. 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 10.23 (2d ed. 2001). In United States v. Brigham, 382 F.3d 500 (5th Cir. 2004), the en banc Fifth Circuit held that “a traffic detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion [regarding offenses other than that for which the stop was made], supported by articulable facts within the officer’s professional judgment, that emerges during the stop.” Brigham, 382 F.3d at 512. Once the investigation of the conduct that was the subject of the traffic stop is concluded, the continued detention of the subject is permissible only if the officer, on the basis of observations and information developed during the stop, reasonably suspects that the person detained had engaged, was engaging, or was soon to engage in criminal conduct. Le Blanc v. State, 138 S.W.3d 603, 605 (Tex. App.–Houston [14th Dist.] 2004, no pet.) (citing Woods v. State, 956 S.W.2d 33, 35, 38 (Tex. Crim. App. 1997)).
Analysis
Appellant does not challenge the validity of the initial traffic stop. Rather, he contends that Trooper Lunceford had already given him a warning citation for improper lane change. Therefore, he argues, the traffic stop investigation had concluded, and Trooper Lunceford’s effort to prolong his detention until the arrival of a drug dog was not justified or lawful. Since his continued detention was not warranted, Appellant claims, he was entitled to leave the scene of the initial stop despite Trooper Lunceford’s orders. Therefore, his flight was not while Trooper Lunceford was attempting to lawfully arrest or detain him.
The story told by Appellant and his passenger that they had driven for two days from Chicago to Dallas to meet some strippers was inherently implausible when considered with their inability to recall how they had first met the objects of their pilgrimage. The trooper observed no clothing or personal items in the car that would normally be taken on an extended trip. Neither Appellant nor Ingram, his passenger, knew to whom the car belonged. Their stated destination was Chicago, but they were not proceeding in that direction.1 Appellant was abnormally nervous.
Trooper Lunceford’s observations made and information gained during the initial traffic stop warranted a reasonable suspicion that the car Appellant was driving contained contraband. Summoning the drug dog was the quickest and best way to resolve that suspicion. Appellant’s continued detention under these circumstances was reasonable. Appellant admitted that he disregarded Trooper Lunceford’s order to stop and fled to avoid detection of the marijuana he knew was in the car. His intentional flight from the scene of the stop in the vehicle despite Trooper Lunceford’s order to wait beside the road until the arrival of the drug dog was an evasion of a lawful detention. The evidence is both legally and factually sufficient to support Appellant’s conviction for evading arrest or detention in a vehicle.
Possession of Marijuana
In his third and fourth issues, Appellant contends the evidence is both legally and factually insufficient to support his conviction for possession of marijuana.
To prove possession of a controlled substance, the State must establish (1) that the defendant exercised actual care, control, and management over the contraband, and (2) that the defendant knew that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). When an accused is not in exclusive possession and control of the place where the contraband is found, it cannot be concluded that he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex. Crim. App. 1995). The Brown court explained the application of the affirmative links doctrine, as follows:
[U]nder our law, 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, [and] evidence which affirmatively links him to it suffices for proof that he possessed it knowingly. Under our precedents, it does not really matter whether this evidence is direct or circumstantial. 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. This is the whole of the so-called “affirmative links” rule.
Id. at 747.
Appellate courts have developed a nonexclusive list of factors appropriate in determining whether the evidence is sufficient to affirmatively link the accused with the controlled substance. See, e.g., Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.–Corpus Christi 2002, no pet.). The number of applicable factors is not as important as the logical force those factors present have in establishing the elements of the offense. See Jones v. State, 963 S.W.2d 826, 830 (Tex. App.–Texarkana 1998, pet. ref’d). Whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.–Austin 1991, pet. ref’d).
Appellant testified that he knew marijuana was in the car, and that he fled in the vehicle to prevent discovery of the contraband. He maintains, however, that the evidence is both legally and factually insufficient to show that he had actual care, control, and management over the marijuana. He argues that the trooper found no marijuana on his person, nor did he find Appellant in possession of a suspiciously large amount of money. Further, Trooper Lunceford did not testify to facts from which it could be inferred that Appellant had recently consumed marijuana, and the marijuana was located as close to the passenger as to Appellant.
Trooper Lunceford testified that he discovered the brick of marijuana in plain view in the middle of the front seat equally and easily accessible to both Appellant and Ingram. Appellant was the driver of the car carrying the contraband back to Chicago. When confronted with the certainty that the contraband would soon be discovered, Appellant attempted to flee to prevent its discovery. We conclude that the logical force of these links is sufficient to connect Appellant to the contraband so that a rational fact finder could find beyond a reasonable doubt that Appellant exercised care, custody, control, or management over the contraband. Measured against the appropriate standards of review, the evidence is both legally and factually sufficient to support his conviction for the possession of marijuana. Appellant’s third and fourth issues are overruled.
Disposition
The judgment is affirmed.
BILL BASS
Justice
Opinion delivered May 16, 2007.
Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
(DO NOT PUBLISH)
1 Trooper Lunceford testified at the suppression hearing, but not at trial, that when he asked for a computer check for outstanding warrants, the dispatcher informed him that it would take some time because Appellant’s arrest record was thirty pages long. Trooper Lunceford then asked the dispatcher for the last five years. Appellant fled before the check was completed.