NO. 07-11-0080-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 22, 2012
______________________________
MARTIN PECINA HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL DISTRICT COURT NO. 6 OF DALLAS COUNTY;
NO. F09-61549-X; HONORABLE DON METCALFE, JUDGE SITTING FOR THE
HONORABLE JEANINE HOWARD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant pled guilty in open court to the second degree felony offense of
possession of a controlled substance, cocaine, in an amount of four grams or more but
less than two hundred grams1 and was sentenced to sixteen and one-half years
1
See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010).
confinement.2 Appellant asserts that (1) the trial court erred by not withdrawing
Appellant’s guilty plea when there was insufficient evidence of criminal conduct; (2)
there was legally insufficient evidence to find him guilty of criminal conduct; and (3) the
trial court erred by informing the jury during voir dire that he had pled guilty and the trial
court would later instruct the jury to find him guilty. By cross-point, the State asks that
we modify the judgment by striking “481.112 Health and Safety Code” from the
judgment and substituting “481.115(d) Health and Safety Code” as the “Statute for
Offense.” We modify the judgment and affirm the judgment as modified.
BACKGROUND
In January 2010, a grand jury returned an indictment against Appellant alleging
that, on or about November 21, 2009, Appellant unlawfully and knowingly possessed
with intent to deliver a controlled substance, to-wit: cocaine, in an amount of four grams
or more but less than two hundred grams, a first degree felony.3 The indictment also
contained an enhancement paragraph alleging that Appellant had a prior conviction for
the felony offense of manufacturing a controlled substance in June 2006. On the
State’s motion, the trial court subsequently amended the indictment and struck the
words “intent to deliver” and the enhancement paragraph, making the offense a second
degree felony.4
2
Following Appellant's plea of guilty this proceeding became a "unitary trial" to determine the remaining
issue of punishment. See State v. Davis, 349 S.W.3d 535, 538 (Tex.Crim.App. 2011).
3
See Tex. Health & Safety Code Ann. § 481.112(d) (West 2010).
4
See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010).
2
After Appellant pled guilty in open court to the indictment as amended, the State
offered the testimony of Dallas City Police Officer David Crowley. Crowley testified that,
on November 1, 2009, he observed a car stopped at a traffic light at 6:00 a.m. When
the light changed to green, the car did not move. Officer Crowley pulled behind the car
and sounded his air horn. There was no response. When he approached the car, he
observed Appellant asleep with the front seat reclined. Officer Crowley rapped on the
window and Appellant awoke sleepily and groggily. He appeared disoriented and, when
Officer Crowley opened his car door, Appellant appeared intoxicated and smelled of
alcoholic beverage. After getting out of the car, Appellant had difficulty walking at a
steady balance. Officer Crowley placed Appellant under arrest for public intoxication
and impounded Appellant’s car. Prior to the car being towed, Officer Crowley
performed an inventory search and discovered a plastic bag containing cocaine in the
front passenger seat map case within a couple of inches from where Appellant’s head
was located with the front driver’s seat reclined. The bag was in plain view, i.e., halfway
in and halfway out of the map case pocket.
Written stipulations of evidence were admitted, without objection, wherein
Appellant stipulated that the plastic bag contained eighteen blue zip lock bags
containing 8.3 grams of 52 percent pure cocaine. Appellant also stipulated that, prior to
the incident, he had four prior felony convictions for drug-related offenses between 2000
and 2006.5
5
The four prior drug-related felony convictions were for unlawful delivery of a controlled substance,
cocaine, in June 2006; unlawful possession with intent to deliver a controlled substance, cocaine, in
November 2004; unlawful possession with intent to deliver a controlled substance, cocaine, in February
2003; and unlawful possession of a controlled substance, cocaine, in March 2000.
3
On cross-examination, Officer Crowley testified that, when he ran the car’s
registration, it did not come back to Appellant although the address where Appellant
was living matched the address on the car’s registration. Officer Crowley also testified
that he did not have the plastic bag tested for fingerprints and the cocaine was not
found in Appellant’s personal belongings. Appellant did not testify and called no further
witnesses.
Thereafter, the jury convicted Appellant for possession of a controlled substance,
cocaine, in an amount of four grams but less than two hundred grams and sentenced
him to sixteen and one-half years confinement. This appeal followed.6
SUFFICIENCY OF THE EVIDENCE7
Appellant contends the State failed to provide sufficient proof of his guilt in
support of his plea because there was no evidence he owned the car or that his
fingerprints were on the plastic bag. We disagree.
Where a defendant knowingly, intelligently, and voluntarily pleads guilty or nolo
contendere to a felony, the appellate standards of review for evidentiary sufficiency do
not apply. Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Crim.App. 1988); O’Brien v.
State, 154 S.W.3d 908, 910 (Tex.App.—Dallas 2005, no pet.). Although the State must
introduce evidence into the record establishing the defendant’s guilt; see Tex. Code
6
Originally appealed to the 5th Court of Appeals, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See Tex. Gov=t Code Ann. ' 73.001 (West
2005). We are unaware of any conflict between precedent of the 5th Court of Appeals and that of this
Court on any relevant issue. See Tex. R. App. P. 41.3.
7
Logic dictates that we consider Appellant’s second point of error first. See Clark v. Jenkins, 248 S.W.3d
418, 427 (Tex.App.—Amarillo 2008, pet. denied), cert. denied, ___ U.S. ___. 103 S.Ct. 52, 175 L.Ed.2d
21 (2009).
4
Crim. Proc. Ann. art. 1.15 (West 2005), there is no requirement that the supporting
evidence prove the defendant’s guilt beyond a reasonable doubt. McGill v. State, 200
S.W.3d 325, 330 (Tex.App.—Dallas 2006, no pet.). Rather, the supporting evidence
must simply embrace each essential element of the offense charged. Stone v. State,
919 S.W.2d 424, 427 (Tex.Crim.App. 1996); McGill, 200 S.W.3d at 330.8
A person commits the offense of possession of a controlled substance if he or
she knowingly or intentionally possesses it. Tex. Health & Safety Code Ann. §
481.115(a) (West 2010). The State must prove the accused exercised actual care,
custody, control, and management over the contraband and that he knew the substance
he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.
1995). These elements may be established by circumstantial evidence. McGoldrick v.
State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985). When the accused is not in
exclusive possession or control of the place where the contraband is found, the State
must prove independent facts and circumstances linking him to the contraband—the
evidence must establish the accused’s connection with the contraband was more than
just fortuitous. Brown, 911 S.W.2d at 747.
Here, Appellant was in exclusive possession of the automobile where the
cocaine was found. He was the driver and only occupant. He was also asleep in a car
stopped in a traffic lane in “park,” his seat was reclined and his head was only inches
8
“A deficiency of one form of proof—say, a deficient written stipulation of evidence (as we have in this
case) or written judicial confession—may be compensated for by other competent evidence in the
record.” Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App. 2009); Dinnery v. State, 592 S.W.2d 343,
st
352 (Tex.Crim.App. 1980). See Parks v. State, 960 S.W.2d 234, 236-38 (Tex.App.—Houston [1 Dist.]
1998, pet. ref’d) (holding evidence sufficient to support plea where evidence other than stipulation
showed guilt).
5
away from a plastic bag containing cocaine that was halfway in and halfway out of the
passenger seat map case--in plain view. Moreover, there was evidence entered,
without objection, that Appellant had four drug-related felony convictions prior to this
incident giving rise to an inference that he knew the substance in the plastic bag was
cocaine. Accordingly, we find the supporting evidence embraced each essential
element of the offense charged. Appellant’s second point of error is overruled and his
first point of error is pretermitted.9
VOIR DIRE
Appellant next asserts the trial court erred by informing the jury during voir dire
that he had pled guilty and he would later instruct them to find Appellant guilty.
When Appellant was arraigned on the amended indictment, the trial court
informed him without objection that “if [he] persist[ed] in [his] plea, [he would] instruct
the jury to find [him] guilty and to affix your punishment.” During voir dire, the trial court
informed the jury without objection that “before you came in here, the defendant entered
his plea of guilty to the indictment” and “[y]our’re not going to be submitted the
questions of is he guilty or not . . . . His plea of guilty admits that.”10 At the beginning of
his trial, Appellant pled guilty before the jury and, without objection, the trial court
instructed the jury “to find the Defendant guilty as charged in the indictment.”
9
A court is not required to address issues that become moot because of the resolution of other issues.
State v. Plembeck, 182 S.W.3d 365, 367 n.10 (Tex.Crim.App. 2008) (citing Hull v. State, 67 S.W.3d 215,
217 n.3 (Tex.Crim.App. 2002)).
10
Furthermore, at the conclusion of voir dire, the trial judge asked whether there was anything else the
lawyers wanted to cover and counsel for both parties answered: “No.”
6
To preserve error on appeal, a party must make a timely, specific objection or
motion to the trial court that states the grounds for the ruling sought with sufficient
specificity and complies with the rules of evidence and procedure, and that the trial
court “ruled on the request, objection, or motion, either expressly or implicitly . . . .” See
Tex. R. App. P. 33.1(a). See Gutierrez v. State, 36 S.W.3d 509, 511 (Tex.Crim.App.
2001). Appellant did not do so, and we overrule his third point of error. See Dhillon v.
State, 1318 S.W.3d 583, 587-88 (Tex.App.—Houston 2004, no pet.).
STATE’S CROSS-POINT
Although the amended indictment reflects that Appellant was charged with
possession of a controlled substance rather than possession of a controlled substance
with intent to deliver, Appellant pled guilty to the amended indictment, the jury’s verdict
form indicates he was found guilty of possession of a controlled substance, and the trial
court’s judgment states he was convicted of possession of a controlled substance, the
judgment cites the “Statute for Offense” as Section 481.112 of the Texas Health and
Safety Code (possession with intent to deliver) rather than Section 481.115(d)
(possession). Accordingly, we sustain the State’s cross-point and order that the
judgment be modified to reflect the correct statutory provision, Section 481.115(d), as
the “Statute for Offense.” See Tex. R. App. P. 43.2, 43.6.
7
CONCLUSION
Having modified the trial court’s judgment to reflect the "Statute for Offense" as
“481.115(d) Health and Safety Code,” the judgment, as modified, is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
8