COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00196-CR
JOHNNY ROY WALLACE JR. A/K/A APPELLANT
JOHNNY R. WALLACE JR.
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
A jury convicted Appellant Johnny Roy Wallace Jr. a/k/a Johnny R.
Wallace Jr. of possession of more than four but less than 200 grams of cocaine,
and the trial court sentenced him to twenty years’ confinement. In two points,
1
See Tex. R. App. P. 47.4.
Wallace argues that the evidence is insufficient to support his conviction and that
the trial court erred by admitting certain evidence. We will affirm.
II. BACKGROUND
Around 1:00 a.m. on June 30, 2009, Wallace made an illegal U-turn in the
vehicle that he was driving in front of the marked patrol car that Officer Francis
Anderson was driving. Officer Anderson hit her brakes, turned on the emergency
lights, parked her patrol car, and approached Wallace, who was the only person
in his vehicle. Officer Anderson had a “good view” inside of Wallace’s vehicle
and asked him for his driver license and insurance. Wallace told Officer
Anderson that he had some “weed” in the car, and Officer Anderson observed a
plastic baggie that contained what appeared to be a white, powdery substance
as Wallace was “trying to fidget” with his right hand. Officer Anderson proceeded
to open the door and asked Wallace to get out of the vehicle. When Wallace
exited the vehicle, a plastic baggie containing a white substance dropped onto
the ground, and Wallace shoved Officer Anderson and ran off. With the help of
another officer, Officer Anderson pursued Wallace and eventually caught and
arrested him.
Officer Anthony Taylor responded to provide assistance and arrived at the
scene within a minute or two of the call. He approached Wallace’s vehicle and
observed a clear plastic bag that contained a white substance lying on the
ground near the driver’s side door. Subsequent testing showed that the
substance weighed .72 grams and contained cocaine. Officer Taylor searched
2
Wallace’s vehicle and found what tests later confirmed to be (1) 39.93 grams of
marijuana in the glove box and (2) 6.36 grams of cocaine (in “cookie” form) in the
driver’s side door pocket. Officer Taylor released the narcotics to Officer
Anderson when she returned to the scene.
III. EVIDENTIARY SUFFICIENCY
In his first point, Wallace challenges the sufficiency of the evidence to
support the “possession” element of the charged offense, arguing that the
evidence is insufficient to affirmatively link him to the 6.36 grams of cocaine
discovered in his vehicle.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). This standard gives full play to the
responsibility of the trier of fact 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, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. 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 (West 1979); Brown v. State, 270 S.W.3d
564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). We must
presume that the factfinder resolved any conflicting inferences in favor of the
3
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Clayton, 235 S.W.3d at 778.
To support Wallace’s conviction, the State had to show that he intentionally
or knowingly “possessed” between four and 200 grams of cocaine. See Tex.
Health & Safety Code Ann. § 481.115(a), (d) (West 2010). To prove possession,
the State was required to show that Wallace (1) exercised actual care, custody,
control, or management over the substance and (2) knew that the matter
possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex.
Crim. App. 2005); see also Tex. Health & Safety Code Ann. § 481.002(38) (West
2010); Tex. Penal Code Ann. § 6.01(b) (West 2011) (defining when possession is
voluntary). Wallace does not argue that he did not know that the 6.36 grams of
cocaine was contraband; therefore, we focus on the evidence demonstrating his
actual care, custody, control, or management of the cocaine. See Poindexter,
153 S.W.3d at 405.
When the accused does not have actual possession of the controlled
substance or exclusive possession of the locale where the controlled substance
was found, it cannot be concluded or presumed that the accused had possession
over the contraband unless there are additional independent facts or
circumstances that tend to connect or link the accused to the knowing
possession of the contraband. Id. at 406 (quoting Deshong v. State, 625 S.W.2d
327, 329 (Tex. Crim. App. [Panel Op.] 1981)). This is because, whether the
evidence is direct or circumstantial, it must establish that the defendant’s
4
connection with the contraband was more than fortuitous. Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006). Relevant non-exclusive links tending to
connect the defendant to knowing possession include (1) the defendant’s
presence when the search is conducted; (2) whether the contraband was in plain
view; (3) the defendant’s proximity to and the accessibility of the narcotic;
(4) whether the defendant possessed other contraband or narcotics when
arrested; (5) whether the defendant attempted to flee; (6) whether the defendant
made furtive gestures; (7) whether the defendant owned or had the right to
possess the place where the drugs were found; and (8) whether the conduct of
the defendant indicated a consciousness of guilt. Id. at 162 n.12. It is not the
number of links that is dispositive but the logical force of all of the evidence. Id.
at 162.
Here, notwithstanding that Wallace exclusively possessed the vehicle
where the cocaine was found, numerous facts link him to the 6.36 grams of
cocaine discovered in the driver’s side door pocket of his vehicle. Specifically,
Wallace was the sole occupant of his vehicle; Wallace told Officer Anderson that
he had “weed” in his vehicle; Wallace made furtive gestures when Officer
Anderson asked for his driver license and proof of insurance; Officer Anderson
observed a plastic baggie containing a white, powdery substance when Wallace
fidgeted his hand while seated in his vehicle; Officers Anderson and Taylor both
observed a plastic baggie containing cocaine on the ground outside of the
driver’s side door of Wallace’s vehicle; Officer Taylor found marijuana in the
5
vehicle’s glove compartment; Wallace shoved Officer Anderson and fled after
exiting his vehicle; and Officer Taylor discovered the 6.36 grams of cocaine in the
driver’s side door pocket, located in close proximity to where Wallace sat to
operate the vehicle.
Viewing all of the evidence in the light most favorable to the prosecution, a
rational jury could have found beyond a reasonable doubt that Wallace
intentionally or knowingly possessed the 6.36 grams of cocaine discovered in the
driver’s side door pocket of his vehicle. See Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778; Evans, 202 S.W.3d at 162 n.12.
Accordingly, we hold that the evidence is sufficient to support Wallace’s
conviction, and we overrule his first point.
IV. EVIDENCE DISCOVERED IN WALLACE’S VEHICLE
In his second point, Wallace argues that the trial court “erred by admitting
into evidence the baggies that were seized from [his] vehicle.” He contends that
the cocaine was discovered pursuant to a “search incident to arrest” but that the
search ran afoul of Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), and
that none of the exceptions to the warrant requirement were present.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d
235, 238–39 (Tex. Crim. App. 2009). Thus, a general or imprecise objection may
6
be sufficient to preserve error for appeal, but only if the legal basis for the
objection is obvious to the court and to opposing counsel. Buchanan v. State,
207 S.W.3d 772, 775 (Tex. Crim. App. 2006). Further, a party’s argument on
appeal must comport with his objection in the trial court. Guevara v. State, 97
S.W.3d 579, 583 (Tex. Crim. App. 2003).
The record shows that when the State first offered the cocaine “cookie”
that was found in the driver’s side door pocket of Wallace’s vehicle into evidence
(State’s Exhibit 4), defense counsel took the witness, Officer Anderson, on voir
dire. Defense counsel questioned Officer Anderson about the chain of custody
relevant to the exhibit and the role that another officer, Officer Torres, played in
assisting Officer Anderson. After questioning Officer Anderson, defense counsel
stated, “I would like to object to the State having the evidence entered. That - -
Exhibits . . . 2 through 5 being entered into evidence, Your Honor.” The trial
court then questioned Officer Anderson before “conditionally receiv[ing]” State’s
Exhibit 4 “until the State proves up the - - through the criminalist the controlled
substances.” Defense counsel did not subsequently assert an objection when
the State questioned Officer Taylor about the cocaine “cookie” or when the State
offered the cocaine into evidence “for all purposes” during its questioning of the
forensic analyst.
The record thus demonstrates that Wallace never objected that the
cocaine discovered in his vehicle was obtained through an improper search.
Although Wallace asserted an objection to the cocaine after questioning Officer
7
Anderson on voir dire, he asserted only a general objection, and it was neither
apparent nor obvious from its context that he was objecting on the basis of an
illegal search. To the extent that the general objection’s legal basis was
apparent to the trial court, it related only to chain of custody and Officer Torres’s
involvement.2 We hold that Wallace failed to preserve this point for appellate
review. See Tex. R. App. P. 33.1(a)(1); Buchanan, 207 S.W.3d at 775; Guevara,
97 S.W.3d at 583. We overrule Wallace’s second point.
V. CONCLUSION
Having overruled Wallace’s two points, we affirm the trial court’s judgment.
BILL MEIER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 22, 2011
2
Nonetheless, the trial court impliedly sustained the objection because it
did not admit the evidence for all purposes until the State re-offered it during the
forensic analyst’s testimony, and Wallace did not assert an objection at that time.
8