Kevin Simmons v. State

IN THE
TENTH COURT OF APPEALS

No. 10-11-00212-CR

KEVIN SIMMONS,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 13th District Court
Navarro County, Texas
Trial Court No. 31924-CR

MEMORANDUM OPINION

Appellant, Kevin Alan Simmons, appeals from his conviction for unlawful

possession of a controlled substance over four grams but less than 200 grams with

intent to deliver, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. §

481.112(a), (d) (West 2010). In four issues, Simmons argues that: (1) the evidence is

insufficient to support his conviction; (2) the trial court erred in denying his request for

an instruction on a lesser-included offense; (3) the trial court erred in denying his
motion to suppress; and (4) the trial court erred in overruling his objection to the State’s

closing argument. We affirm.

I. BACKGROUND

At approximately 8:30 p.m. on February 25, 2008, Corsicana Police Department

Sergeant Paul Jock observed a maroon, four-door Honda sedan roll through a stop sign

in Navarro County, Texas. Sergeant Jock activated the overhead lights on his police

cruiser and subsequently stopped the vehicle. Sergeant Jock made contact with the

driver of the vehicle, Simmons. When he approached the driver’s-side window,

Sergeant Jock smelled burnt marihuana. Simmons testified that he and his passenger,

William Henry, were smoking a joint at the time of the alleged traffic violation and that

he threw the joint out of the window just prior to being stopped by Sergeant Jock.

Because he smelled burnt marihuana emanating from the vehicle, Sergeant Jock ordered

Simmons and Henry to exit the vehicle so that the vehicle could be searched. However,

prior to searching the vehicle, Sergeant Jock patted down Simmons and Henry and

called for backup. No weapons or drug paraphernalia was found on either Simmons’s

or Henry’s person. When Officer Scott Tidwell arrived at the scene, Sergeant Jock

searched Simmons’s vehicle. In the front passenger-side floorboard, Sergeant Jock

found a Doritos bag that had a rubber band around the top. Inside the Doritos bag was

a plastic bag which contained a white, powdery substance that Sergeant Jock believed

to be cocaine. Sergeant Jock field-tested the substance and determined that the weight

of the substance, including the packaging, was approximately seven grams. Simmons

Simmons v. State Page 2
claimed ownership of the cocaine and later gave a written statement confirming that

fact.

Simmons was charged by indictment with unlawful possession of a controlled

substance over four grams but under 200 grams with intent to deliver. See id. §

481.112(a), (d). Prior to trial, Simmons orally moved to suppress evidence obtained as a

result of the traffic stop. In particular, Simmons argued that there was no probable

cause for the traffic stop and that Sergeant Jock failed to properly warn Simmons prior

to taking his written statement. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005).

The trial court denied Simmons’s motion to suppress, and the jury trial in this matter

commenced. At the conclusion of the evidence, the jury found Simmons guilty of the

charged offense and assessed punishment at twenty years’ incarceration in the

Institutional Division of the Texas Department of Criminal Justice. The trial court

certified Simmons’s right to appeal, and this appeal followed.

II. MOTION TO SUPPRESS

In his third issue, Simmons asserts that the trial court erred in denying his

motion to suppress the written statement he made to police. In particular, Simmons

argues that the written statement he made to police was not voluntary because it was

obtained as a result of a threat or promise to not arrest the other passenger in the car—

Henry.

Prior to trial and outside the presence of the jury, Simmons orally moved to

suppress evidence obtained as a result of the traffic stop. Both Simmons and the

arresting officer, Sergeant Jock, testified at the hearing on Simmons’s oral motion to

Simmons v. State Page 3
suppress. At the conclusion of the testimony, Simmons argued that the complained-of

evidence should be suppressed because the evidence did not demonstrate that: (1) a

traffic violation occurred, which amounted to an invalid traffic stop; and (2) Sergeant

Jock read Simmons the required warnings enumerated in article 38.22 of the code of

criminal procedure prior to taking his written statement. See TEX. CODE CRIM. PROC.

ANN. art. 38.22.

Simmons did not argue in the trial court that his written statement was

involuntary because it was obtained as a result of Sergeant Jock’s alleged threat or

promise to arrest Henry. Thus, Simmons’s complaint on appeal does not comport with

his objection in the trial court. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d

346, 349 (Tex. Crim. App. 2002) (stating that a complaining party must make a timely

and specific objection to preserve error for appellate review); see also Wright v. State, 154

S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d) (noting that points of error on

appeal must correspond or comport with objections and arguments made at trial)

(citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998))). “Where a trial

objection does not comport with the issue raised on appeal, the appellant has preserved

nothing for review.” Wright, 154 S.W.3d at 241; see Ibarra v. State, 11 S.W.3d 189, 197

(Tex. Crim. App. 1999). Accordingly, we overrule Simmons’s third issue.

III. SUFFICIENCY OF THE EVIDENCE

In his first issue, Simmons argues that the evidence supporting his conviction is

insufficient. We disagree.

A. Applicable Law

Simmons v. State Page 4
 The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2792-93. Further, direct and circumstantial evidence are treated equally:

"Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the

factfinder is entitled to judge the credibility of witnesses and can choose to believe all,

some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991).

Simmons v. State Page 5
 The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically-correct jury charge,

the State was required to prove beyond a reasonable doubt that Simmons: (1)

knowingly (2) possessed, (3) with intent to deliver, (4) four grams or more but less than

200 grams of cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d).

In satisfying its burden of proof, the State was required to prove beyond a

reasonable doubt that Simmons exercised actual care, custody, control, or management

over the cocaine and knew the material possessed was contraband. See Taylor v. State,

106 S.W.3d 827, 830 (Tex. App.—Dallas 2003, no pet.). The State was also required to

prove beyond a reasonable doubt that Simmons possessed the cocaine with intent to

deliver. Id. Intent to deliver may be established by expert testimony, such as testimony

from experienced law enforcement, and circumstantial evidence, such as evidence of an

accused’s possession of the contraband. See Moreno v. State, 195 S.W.3d 321, 325 (Tex.

App.—Houston [14th Dist.] 2006, pet. ref’d); Patterson v. State, 138 S.W.3d 643, 650 (Tex.

App.—Dallas 2004, no pet.) (stating that “intent to deliver” can be proved by

circumstantial evidence, such as the quantity of drugs possessed, the manner of

packaging, and the presence of the accused on the premises); see also Terrell v. State, No.

10-11-00022-CR, 2011 Tex. App. LEXIS 5605, at *7 (Tex. App.—Waco July 20, 2011, pet.

ref’d) (mem. op., not designated for publication). Further, intent to deliver is a fact

question for the trier of fact to resolve, and it may be inferred from the acts, words, or

conduct of the accused. See Taylor, 106 S.W.3d at 831.

Simmons v. State Page 6
B. Discussion

Here, Simmons admitted that the cocaine was his. Moreover, Sergeant Jock

testified that he field-tested the cocaine seized from Simmons’s vehicle and that the

cocaine, including the packaging, weighed approximately seven grams. Starla

Copeland, a forensic scientist with the Texas Department of Public Safety (“DPS”)

Crime Laboratory in Waco, Texas, noted that the cocaine seized by Sergeant Jock was

sent to her crime laboratory and that Kerry O’Brick conducted several tests on the

substance. O’Brick is no longer an employee at the crime lab; instead, Copeland

testified about the testing of the cocaine while relying on O’Brick’s notes. As a result of

the testing, it was determined that the substance was 6.33 grams of cocaine. O’Brick’s

notes allegedly contained a notation that “a plastic bag, plastic packaging, Dorito’s [sic]

bag, then a plastic bag, and then it would be the rock substance” were received from

Sergeant Jock. Copeland specifically stated that it was against the policy of DPS to

include the packaging when weighing the substance, though she admitted that she did

not have personal knowledge whether O’Brick included the packaging when weighing

the substance.

Despite Sergeant Jock’s testimony that the cocaine and the packaging weighed

approximately seven grams and Copeland’s testimony that the cocaine itself weighed

6.33 grams, Simmons argues that the evidence is insufficient to establish that the cocaine

weighed more than four grams. In making this assertion, Simmons speculates that

O’Brick may have included the packaging when weighing the cocaine and that the

cocaine could have possibly weighed less than four grams. We do not find any

Simmons v. State Page 7
evidence in the record to support Simmons’s speculations. Copeland clearly testified

that it was against DPS policy to include the packaging when weighing the cocaine and

that the cocaine weighed 6.33 grams. Furthermore, Sergeant Jock stated that the cocaine

and the packaging weighed approximately seven grams together. The testimony of

Sergeant Jock and Copeland undermines Simmons’s assertion that the cocaine could

have weighed less than four grams. Nevertheless, to the extent that there is a conflict in

the testimony, we must presume that the jury resolved the conflicts in favor of its

verdict and therefore defer to that determination. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2792-93.

Simmons also asserts that the evidence is insufficient to demonstrate that he had

intent to deliver the cocaine found in the vehicle. Elmer Tanner, a Captain with the

Criminal Investigation Division, including narcotics, for the Navarro County Sheriff’s

Department, testified as an expert witness regarding narcotics investigations and

possession-with-intent-to-deliver cases in Navarro County. Captain Tanner stated that,

based on the amount alone and his thirteen years of narcotics enforcement, 6.33 grams

of cocaine would be a dealer amount in Navarro County. Captain Tanner further noted

that the plastic bag seized from Simmons’s vehicle contained several different sizes of

cocaine rocks, which led him to believe that the bigger rocks were going to be cut and

sold in smaller quantities. Captain Tanner opined that the amount possessed by

Simmons was “not something that somebody is just going to possess for their own

personal use” and that Simmons likely intended to deliver the cocaine.

Simmons v. State Page 8
 Simmons called his own expert witness—Coy West—on the issue of whether the

amount of cocaine seized from Simmons’s vehicle indicated an intent to deliver. West,

now employed by SynTech Forensic Consultants, previously served as Chief Deputy of

the Hill County Sheriff’s Department and testified that it was his responsibility to

supervise narcotics detectives for approximately nine years. Based on his brief

examination of the case file, West disagreed with Captain Tanner’s conclusion that the

amount of cocaine seized indicated an intent to deliver. West pointed out that police

did not obtain any other evidence indicating an intent to deliver, including, among

other things, ledgers, scales, money, and cutting instruments. Based on his review of

the evidence, West believed that Simmons was not guilty of the charged offense, a first-

degree felony; instead, West noted that Simmons was guilty of a second-degree felony,

unlawful possession of a controlled substance greater than four grams but less than 200

grams. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (d), 481.115(d) (West 2010).

As noted earlier, it is within the province of the jury to resolve conflicts in the

evidence, and we are to defer to the jury’s resolution of those conflicts. See Chambers,

805 S.W.2d at 461; see also Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93; Lancon v. State, 253

S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—

Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s decision

regarding what weight to give contradictory testimonial evidence because the decision

is most likely based on evaluation of credibility and demeanor, which the jury is in a

better position to judge.”). In convicting Simmons of the charged offense, the jury

clearly believed Captain Tanner’s testimony and did not believe West’s assessment of

Simmons v. State Page 9
the situation; as such, we must defer to the jury’s resolution of the conflict in the

evidence. See Chambers, 805 S.W.2d at 461; see also Jackson, 443 U.S. at 326, 99 S. Ct. at

2792-93; Lancon, 253 S.W.3d at 706; Render, 316 S.W.3d at 859.

Based on Captain Tanner’s testimony and the testimony that the cocaine

weighed 6.33 grams, and because “intent to deliver” can be established by

circumstantial evidence of, among other things, the quantity of drugs possessed, we

conclude that a rational juror could have concluded that the State proved beyond a

reasonable doubt that Simmons unlawfully possessed more than four grams but less

than 200 grams of cocaine with an intent to deliver. See TEX. HEALTH & SAFETY CODE

ANN. 481.112(a), (d); see also Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We

therefore hold that the evidence is sufficient to support Simmons’s conviction. See

Lucio, 351 S.W.3d at 894; see also Hooper, 214 S.W.3d at 13. Accordingly, we overrule his

first issue.

IV. LESSER-INCLUDED-OFFENSE INSTRUCTION

In his second issue, Simmons alleges that the trial court erred in refusing to give

an instruction on the lesser-included offense of possession of a controlled substance

over one gram but less than four grams because the evidence adduced at trial

demonstrated that the amount of the cocaine seized may have been less than four

grams.

A. Applicable Law

An offense qualifies as a lesser-included offense of the charged offense if: (1) it is

established by proof of the same or less than all the facts required to establish the

Simmons v. State Page 10
commission of the offense charged; (2) it differs from the offense charged only in that a

less serious injury or risk of injury to the same person, property, or public interest

suffices to establish the commission of the offense; (3) it differs from the offense charged

only in that a less culpable mental state suffices to establish its commission; or (4) it

consists of an attempt to commit the offense charged or an otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). To determine whether a defendant

is entitled to an instruction on a lesser-included offense, the court conducts a two-

pronged test. See Ex parte Watson, 306 S.W.3d 259, 272-73 (Tex. Crim. App. 2009); Hall v.

State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first prong of the test requires

the court to use the “cognate pleadings” approach to determine whether an offense is a

lesser-included offense of another offense. The first prong is satisfied if the indictment

for the greater-inclusive offense either: “(1) alleges all of the elements of the lesser-

included offense, or (2) alleges elements plus facts (including descriptive averments,

such as non-statutory manner and means, that are alleged for purposes of providing

notice) from which all of the elements of the lesser-included offense may be deduced.”

Ex parte Watson, 306 S.W.3d at 273.

Both statutory elements and any descriptive averments alleged in the
indictment for the greater-inclusive offense should be compared to the
statutory elements of the lesser offense. If a descriptive averment in the
indictment for the greater offense is identical to an element of the lesser
offense, or if an element of the lesser offense may be deduced from a
descriptive averment in the indictment for the greater-inclusive offense,
this should be factored into the lesser-included-offense analysis in asking
whether all of the elements of the lesser offense are contained within the
allegations of the greater offense.

Id. This inquiry is a question of law. Hall, 225 S.W.3d at 535.

Simmons v. State Page 11
 The second prong asks whether there is evidence that supports giving the lesser-

included-offense instruction to the jury. Id. at 536. A defendant is entitled to a

requested instruction on a lesser-included offense when the proof for the charged

offense subsumes the proof required to establish the lesser-included offense and some

evidence in the record would permit a rational jury to find that if the defendant is

guilty, he is guilty only of the lesser-included offense. Id. Anything more than a

scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. A

lesser-included-offense instruction is required when the evidence establishes the lesser-

included offense as a valid, rational alternative to the charged offense. Id. Moreover, in

analyzing the second prong, “[t]he evidence must be evaluated in the context of the

entire record.” Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).

B. Discussion

As noted earlier, there is no evidence to support Simmons’s speculation that the

cocaine weighed more than four grams because of the packaging. In fact, there is no

evidence in the record separately indicating the weight of the packaging. Furthermore,

Copeland stated that it was against DPS policy to weigh the packaging with the cocaine

and that the cocaine weighed 6.33 grams. Because there is no evidence demonstrating

that the cocaine weighed less than four grams and because we have affirmed

Simmons’s conviction for unlawful possession of a controlled substance more than four

grams but less than 200 grams with intent to deliver, we cannot conclude that the trial

court erred in denying Simmons’s request for an instruction on the lesser-included

offense of unlawful possession of a controlled substance over one gram but less than

Simmons v. State Page 12
four grams. See Ex parte Watson, 306 S.W.3d at 272-73; Hall, 225 S.W.3d at 535-36.

Accordingly, Simmons’s second issue is overruled.

V. THE STATE’S CLOSING ARGUMENT

In his fourth issue, Simmons contends that the trial court erred in overruling his

objection to the State’s closing argument, which allegedly touched on evidence outside

the record and insinuated that Simmons had been using children to sell drugs for him.

The State counters that its closing argument was a reasonable deduction from the

evidence because the prosecutor merely mentioned to the jury that Simmons, a

convicted drug dealer, had access to children.

A. Applicable Law

Proper jury argument must encompass one of the following: (1) a summation of

the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3)

an answer to the opposing counsel’s argument; or (4) a plea for law enforcement. Brown

v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Guidry v. State, 9 S.W.3d 133, 154

(Tex. Crim. App. 1999). To determine whether a party’s argument properly falls within

one of these categories, we must consider the argument in light of the entire record.

Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); see

Brown, 270 S.W.3d at 570 (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App.

1988)). “It is the duty of trial counsel to confine their arguments to the record; reference

to facts that are neither in evidence nor inferable from the evidence is therefore

improper.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973); see Brown, 270

S.W.3d at 570.

Simmons v. State Page 13
B. Discussion

Simmons’s fourth complaint centers on the following statements made by the

prosecutor during closing argument at the punishment phase:

[The State]: He’s around kids. That’s another thing I want to talk
to you about. People may not know him—I mean,
and there’s very, very good families out there that
have bad people, and no one’s saying the Henrys are
bad people and no one’s definitely saying the
Simmonses are bad people. They love their—their—
their relatives. But they can’t be held responsible for
what their relatives [do]. They’re a good family. But
that doesn’t change the fact that good families have
bad people in them. And good families do what they
can to help. And that’s what they did when they got
up on the stand.

But I submit to you that, they presented it as a
good thing that he was working with the youth
basketball, like that was some kind of benefit to his
character that was good. A drug dealer working
around kids is a bad thing no matter what. We don’t
know what he was doing with those kids. He was
coaching them. We don’t know that he wasn’t getting
them to work for him.

[Defense counsel]: Your Honor, I’m going to object, that’s an argument
way beyond the evidence.

[The State]: That’s a reasonable deduction from the evidence,
Judge.

[THE COURT]: I’ll—I’ll overrule the objection.

[The State]: Thank you, Judge. We don’t know that he wasn’t
getting those kids out there to work for him. But he
argues like being around kids is a good thing.

During the punishment phase, Simmons called numerous friends and family

members to testify that he was a “good guy” and a family man. Several witnesses

Simmons v. State Page 14
stated that Simmons was an assistant coach for a Little Dribblers basketball team

comprised of eleven, twelve, and thirteen-year-old children to show that he is good

with children. The prosecutor’s statements during closing argument properly

summarized and provided an answer to the punishment-phase testimony that Simmons

was a “good guy” and a family man who is good with children. See Brown, 270 S.W.3d

at 570; see also Guidry, 9 S.W.3d at 154. Moreover, the jury had already convicted

Simmons of unlawful possession of a controlled substance with intent to deliver, and

the prosecutor’s statements also constituted a reasonable deduction from the

evidence—that Simmons has regular contact with children and that those children are

at risk in light of Simmons’s conviction. See Brown, 270 S.W.3d at 570, 572 (citing Gaddis

v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) (“Counsel is allowed wide latitude

without limitation in drawing inferences from the evidence so long as the inferences

drawn are reasonable, fair, legitimate, and offered in good faith.”)). We therefore

conclude that the prosecutor’s statements fall with the realm of proper jury argument.

See Brown, 270 S.W.3d at 570; see also Guidry, 9 S.W.3d at 154. We overrule Simmons’s

fourth issue.

VI. CONCLUSION

Having overruled all of Simmons’s issues on appeal, we affirm the judgment of

the trial court.

AL SCOGGINS
Justice

Simmons v. State Page 15
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 23, 2012
Do not publish
[CR25]

Simmons v. State Page 16