NO. 07-08-00205-CR; 07-08-00206-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 22, 2010
LYNN TAYLOR, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 55,385-D, 55,386-D; HONORABLE DAVID GLEASON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Lynn Taylor appeals his convictions for possession of cocaine1 and
unlawful possession of a firearm.2 Through two issues he challenges the legal and
factual sufficiency of evidence supporting the convictions and by a third issue he
contends the trial court denied his constitutional right to present a defense. We will
affirm.
1
Tex. Health & Safety Code Ann. ' 481.115(a),(d) (Vernon 2003).
2
Tex. Penal Code Ann. ' 46.04(a)(1) (Vernon Supp. 2009).
Background
On March 5, 2007, members of the Amarillo police department SWAT team
executed a Ano knock@ search warrant for crack cocaine at a city residence. According
to the warrant=s supporting affidavit, a confidential informant told police that within forty-
eight hours of March 5 appellant possessed crack cocaine at the residence and
represented to the informant that the substance was crack cocaine. When officers
entered the residence, they found appellant=s adult daughter Amber Richardson on a
living room couch. In the upstairs bedroom, they located appellant in bed with Christa
Morales.
Downstairs, off the living room, was what officers termed a bar area. There, in
shelving above the bar officers found two baggies containing, respectively, 19.5 grams
and 5.5 grams of a substance later identified as cocaine, and a loaded .25 caliber
handgun. The shelves contained three letters addressed to appellant at the residence.
From these envelopes, police obtained three finger prints matching appellant and one
unidentified print. Another letter was addressed to Morales at the residence. A digital
scale was found in a bank bag in a drawer below the bar. A finger print lifted from the
scale matched appellant. A cabinet yielded a gun holster, a box of .45 caliber
ammunition, and a box of .25 caliber ammunition. Among canned food items in a
kitchen cabinet, officers found 138 one-dollar bills. In kitchen trash, officers found
baggies with the corners removed. In the upstairs bedroom occupied by appellant and
2
Morales, officers found $1,500 cash in the pocket of appellant=s pants.3 Appellant=s
wallet contained his driver=s license, which listed the residence as his address. Also in
the bedroom was a glass crack pipe that officers attributed to Morales. It contained
residue.
Appellant was indicted for possession, with intent to deliver, of cocaine in an
amount four grams or more but less than two hundred grams and unlawful possession
of a firearm.4 The guilt-innocence phase of trial was by jury. Evidence revealed
appellant was on parole for a felony conviction at the time of the alleged unlawful
possession of a firearm. A Texas Department of Public Safety chemist testified to his
opinion, based on testing, that the substance in the two baggies was cocaine. A police
officer explained that small amounts of crack cocaine are sold in baggies with the
corners removed to better conceal the drug. Another officer explained that it is not
unusual to find large amounts of cash associated with illegal drug sales. In his opinion,
the sale of illegal drugs is a Acash and carry business.@ According to the officer,
narcotics are typically sold in amounts purchased with ten and twenty dollar bills. There
was also testimony from an officer that dealers of crack cocaine use digital scales to
weigh narcotics. And plastic bags configured in this manner as those found in the
kitchen trash are used in the sale of small amounts of narcotics. According to other
3
Photos show appellant’s pants lying folded on the floor next to the bed. The
cash consisted of seven $100 bills, one $50 bill, thirty-three $20 bills, seven $10 bills,
one $5 bill, and fifteen $1 bills.
4
Appellant refused court-appointed legal representation and appeared pro se in
the trial court proceedings. No appellate issue is raised with regard to his self-
representation at trial.
3
testimony, Richardson had children and children=s clothing and toys were located in the
residence, she was a Aresident@ of the residence, and mail bearing her name had been
delivered to the residence. There was testimony that the residence was owned jointly
by appellant and his siblings.
The jury convicted appellant of the lesser-included narcotics offense of
possession of cocaine in the amount alleged by the indictment and the firearm violation.
The sentencing range was enhanced by appellant=s prior felony convictions and a
deadly weapon finding. The court sentenced appellant to prison terms of twenty-five
years on the narcotics violation and twelve years on the firearm violation. This appeal
followed.
Discussion
In his first and second issues, appellant contends the evidence was legally or
factually insufficient to sustain his conviction for possession of a controlled substance
and unlawful possession of a firearm because of insufficient links connecting him with
the items of contraband.
When conducting a legal sufficiency review, we view the evidence in the light
most favorable to the verdict to determine whether a rational fact-finder could have
found each element of the offense beyond a reasonable doubt. Swearingen v. State,
101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197
(Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)). The trier of fact is the sole judge of the weight and credibility of
the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.
4
State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008), cert. denied, 129 S.Ct. 2075, 173
L.Ed.2d 1139 (2009). Accordingly, when performing a legal sufficiency review, we are
not free to re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740
(Tex.Crim.App. 1999). Rather, we Adetermine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16-17
(Tex.Crim.App. 2007). If, based on all the evidence, a reasonably-minded jury must
necessarily entertain a reasonable doubt of the defendant’s guilt, due process requires
that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95
(citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992)).
A factual sufficiency review of the evidence is Abarely distinguishable@ from the
legal sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618,
625 (Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence
supporting guilt, though legally sufficient, is so weak that the jury=s verdict seems clearly
wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury=s
verdict is against the great weight and preponderance of the evidence. Id.; 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 gravamen of appellant=s challenge is the sufficiency of evidence proving his
possession of the crack cocaine and a firearm. APossession means actual care,
custody, control, or management.@ Tex. Penal Code Ann. ' 1.07(a)(39) (Vernon Supp.
5
2009). A person commits a possessory offense only if he voluntarily possesses the
prohibited item. See id. ' 6.01(a) (Vernon 2003). APossession is a voluntary act if the
possessor knowingly obtains or receives the thing possessed or is aware of his control
of the thing for a sufficient time to permit him to terminate his control.@ Id. ' 6.01(b).
To prove unlawful possession of a controlled substance, the State must prove
the accused exercised actual care, custody, control, or management over the
contraband and he knew the matter possessed was contraband. Tex. Health & Safety
Code Ann. ' 481.002(38) (Vernon Supp. 2009) and ' 481.115(a) (Vernon 2003). Evans
v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d
402, 405 (Tex.Crim.App. 2005). To establish unlawful possession of a firearm by a
felon, the State must prove the accused was previously convicted of a felony offense
and possessed a firearm after the conviction and before the fifth anniversary of his
release from confinement or from supervision, whichever date is later. Tex. Penal Code
Ann. ' 46.04(a)(1) (Vernon Supp. 2009). We analyze the sufficiency of the evidence
proving unlawful possession of a firearm according to the same standards applied in
cases of unlawful possession of a controlled substance. Bates v. State, 155 S.W.3d
212, 216 (Tex.App.BDallas 2004, no pet.).
It is not necessary for the State to prove the accused maintained exclusive
possession of the contraband; rather, joint possession is sufficient to sustain a
conviction. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). If the accused did
not maintain exclusive control of the location of the contraband, however, the State
must offer additional, independent facts linking the accused to the contraband.
6
Poindexter, 153 S.W.3d at 406; Evans, 202 S.W.3d at 162. Thus, the defendant’s
presence or proximity to contraband, if combined with other evidence, may be sufficient
to establish his actual care, custody or control. Id. While not a litmus test, some of the
factors linking an accused to contraband that courts have found may circumstantially
show possession of contraband include: (1) the defendant=s presence when a search is
conducted; (2) whether the contraband was in plain view; (3) the defendant=s proximity
to and the accessibility of the contraband; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed other
contraband or narcotics when arrested; (6) whether the defendant made incriminating
statements when arrested; (7) whether the defendant attempted to flee; (8) whether the
defendant made furtive gestures; (9) whether there was an odor of contraband; (10)
whether other contraband or drug paraphernalia were present; (11) whether the
defendant owned or had the right to possess the place where the contraband was
found; (12) whether the place where the contraband was found was enclosed; (13)
whether the defendant was found with a large amount of cash; and (14) whether the
conduct of the defendant indicated a consciousness of guilt. Id. at 162 n.12. Our
analysis focuses not on the number of links shown but from the Alogical force@ of all the
evidence, direct and circumstantial. Id. at 161-62.
Evidence showed the residence was owned jointly by appellant and his siblings.
But appellant had lived there some six months at the time officers executed the search
warrant. His pants pocket contained a large amount of cash in denominations common
to drug transactions. Appellant was directly tied to possession of cocaine by the
evidence that, according to a confidential informant, appellant possessed crack cocaine
7
at the residence and told the informant the substance was crack cocaine.5 The jury
could also have linked appellant to the cocaine and firearm through evidence of mail
addressed to him at the residence and bearing his fingerprint, found in a shelf above the
bar where the firearm and drugs were found, and the digital scale, also bearing
appellant’s fingerprint.
When viewed in the light most favorable to the prosecution we find a rational trier
of fact could have found the essential elements of possession of a controlled substance
and unlawful possession of a firearm beyond a reasonable doubt.
Throughout trial appellant emphasized the presence of his adult daughter
Richardson. As noted, she had children and the residence contained children=s toys
and clothing. Relatives of appellant testified that Richardson resided and received mail
at that address. Despite the efforts of a court-approved investigator for appellant,
Richardson could not be located by the time of trial. As also noted, there was evidence
that a crack pipe, found in the bedroom occupied by appellant and Morales, belonged to
Morales.
While this evidence may point to occupancy of the residence by others, it does
not dilute the force of evidence linking appellant to the contraband. Viewing all the
evidence in a neutral light we find the evidence supporting conviction is not so weak that
the determination of the fact-finder is clearly wrong or unjust. The evidence was
5
This hearsay statement was admitted without objection. See Poindexter, 153
S.W.3d at 406 (Aonce the trier of fact has weighed the probative value of unobjected-to
hearsay evidence in its factfinding process, an appellate court cannot deny that
evidence probative value or ignore it in its review of the sufficiency of the evidence@).
8
factually sufficient to support conviction. We overrule appellant=s first and second
issues.
By his third issue, appellant contends the trial court erred by excluding his
proffered evidence attempting to tie Richardson more closely to the contraband. He
contends the court’s evidentiary ruling denied him his constitutional right to present to
the jury a defense asserting Richardson’s guilt.
For purposes of our disposition of his third issue, although appellant did not
articulate his constitutional theory to the trial court with any specificity, we will assume
the trial court was sufficiently aware of his contention to preserve it for our review.6
We review a trial court=s decision to admit or exclude evidence under an abuse of
discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007). A
trial court abuses its discretion when its decision is so clearly wrong as to lie outside
that zone within which reasonable persons might disagree. McDonald v. State, 179
S.W.3d 571, 576 (Tex.Crim.App. 2005).
Outside the presence of the jury, the trial court heard testimony from two Amarillo
police officers, neither of whom was involved in the March 2007 possession arrest for
which appellant was being tried. Their testimony concerned events that occurred in
January 2007. One officer testified he investigated a police report of an aggravated
6
Proper preservation of error requires a party make a timely and specific
objection as soon as the basis for the objection becomes apparent, and the complaint
on appeal must not vary from the trial court objection. See Tex. R. Evid. 103(a)(1); Tex.
R. App. P. 33.1(a)(1)(A); Heidelberg v. State, 144 S.W.3d 535, 536 (Tex.Crim.App.
2004). Even claims of constitutional error may be waived if not properly brought to the
attention of the trial court. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.
2000) (waiver of objection under Confrontation Clause).
9
assault that allegedly occurred in the parking lot of a convenience store on Amarillo
Boulevard. The report, dated January 2, 2007, told of a fight involving several people.
According to the report, the officer who authored it Awas told@ that someone named
AAmber Richards@ or AAmber Richardson@ had a .25 caliber handgun, may have fired it,
and put it in a trash dumpster in front of the store. Although a .25 caliber handgun was
recovered from the dumpster, the officer was not able to determine if the gun was fired
during the fight. He said police found no shell casings at the scene. The second officer
testified that he recovered the handgun from the dumpster. He explained that a
surveillance video recording from the store showed someone disposing of the weapon,
but he was not aware of the identity of this person. Police did not open a case on the
incident as none of the alleged complainants wished to pursue the matter. In support of
presenting this testimony before the jury, appellant argued it would show an AM.O.@ for
Richardson, that a .25 caliber gun was her Agun of choice,@ and that she planted the gun
and drugs in the residence in exchange for police dropping any charge against her from
the January 2 incident. The trial court ruled the proffered evidence was not relevant,
and did not allow the jury to hear the officers’ testimony.
[T]here are two distinct scenarios in which rulings excluding evidence
might rise to the level of a constitutional violation: 1) a state evidentiary
rule which categorically and arbitrarily prohibits the defendant from
offering otherwise relevant, reliable evidence which is vital to his defense;
and 2) a trial court’s clearly erroneous ruling excluding otherwise relevant,
reliable evidence which “forms such a vital portion of the case that
exclusion effectively precludes the defendant from presenting a defense.”
In the first category, the constitutional infirmity is in the arbitrary rule of
evidence itself. In the second category, the rule itself is appropriate, but
the trial court erroneously applies the rule to exclude admissible evidence
to such an extent that it effectively prevents the defendant from presenting
10
his defensive theory. In other words, the erroneous ruling goes to the
heart of the defense.
Wiley v. State, 74 S.W.3d 399, 405 (Tex.Crim.App. 2002) (footnotes omitted).
As we understand appellant’s argument, he does not challenge a Texas
evidentiary rule but argues the court’s ruling fits the second scenario described in Wiley
because it excluded his proffer of otherwise relevant, reliable evidence forming such a
vital part of his defensive theory that he effectively was precluded from presenting a
defense.
Relevant evidence is Aevidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.@ Tex. R. Evid. 401. AEvidence which is
not relevant is inadmissible.@ Tex. R. Evid. 402. Evidence is relevant if it is material and
probative. Steven Goode, Olin Guy Wellborn, III, and M. Michael Sharlot, 1 Texas
Practice: Guide to the Texas Rules of Evidence ' 401.1 (3d ed. 2002). To be material,
the evidence Amust be shown to be addressed to the proof of a material proposition, i.e.,
any fact that is of consequence to the determination of the action.@ Id. (internal
quotation marks omitted). Evidence is considered probative if it Atends to make the
existence of the fact more or less probable than it would be without the evidence.@ Id.
(internal quotation marks omitted).
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee an accused a meaningful opportunity to present a complete defense. Crane
11
v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986). It is
equally clear, however, that the exercise of that opportunity does not preclude a trial
court from excluding testimony that presents irrelevant or unreliable evidence. See
Crane, 476 U.S. at 689-90 (Constitution gives trial judges “wide latitude” to exclude
evidence that is only marginally relevant or poses undue risk of confusion of the issues);
Wiley, 74 S.W.3d at 407-08 (no constitutional violation from exclusion of proffered
testimony under Rule of Evidence 403). Accord, Montana v. Egelhoff, 518 U.S. 37, 42,
116 S.Ct. 2013, 2017, 135 L.Ed.2d 361 (1996) (quoting Taylor v. Illinois, 484 U.S. 400,
410, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988)) (“accused does not have an unfettered
right to offer [evidence] that is . . . inadmissible under standard rules of evidence@);
United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) (constitutional right to present
a defense Adoes not give criminal defendants carte blanche to circumvent the rules of
evidence@).
Without abusing its discretion, the trial court here could have regarded the layers
of hearsay included in appellant’s proffered testimony made it unreliable as proof
appellant’s daughter was the person who put the .25 caliber handgun in the dumpster in
January 2007. See Stevens v. State, No. 01-07-00111-CR, 2008 Tex. App. Lexis 5237,
at *15-16 (Tex.App.--Houston 1st Dist. July 10, 2008, no pet.) (mem. op.) (not
designated for publication) (hearsay evidence is unreliable because cross-examination
is not available to test the veracity of the declarant). Also without abusing its discretion
the court could have determined the facts purportedly shown by the evidence, that is,
that Richardson possessed and disposed of such a handgun in January 2007, were not
probative of any fact of consequence to the determination of appellant’s guilt. Further,
12
the trial court could have determined that any relevance the evidence possessed was
substantially outweighed by the danger of confusion of the issues involved in appellant’s
prosecution. See Tex. R. Evid. 403; Wiley, 74 S.W.3d at 407-08 (Rule 403 supported
exclusion of evidence of alternative perpetrator). Such a conclusion by the trial court
would have been supported by appellant’s assertion the evidence showed a likelihood
that police did not charge Richardson for her possession of the gun because she
agreed to plant the drugs found in March on appellant. Such speculation would not
have aided the jury’s determination of the issues properly before it in this case. For all
these reasons, we see no violation of appellant’s constitutional right to present a
defense from the trial court’s exclusion of appellant’s proffered testimony. See Wiley,
74 S.W.3d at 405 (violation may occur from erroneous exclusion of “otherwise relevant,
reliable evidence”). We overrule appellant=s third issue.
Conclusion
Having overruled appellant=s three issues, we affirm the judgment of the trial
court.
James T. Campbell
Justice
Do not publish.
13