Simmons, Oliver v. State ( 2002 )


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  • Opinion issued August 1, 2002

























    In The

    Court of Appeals

    For The

    First District of Texas  




    NO. 01-01-00219-CR

    ____________



    OLIVER SIMMONS, Appellant



    V.



    THE STATE OF TEXAS, Appellee




    On Appeal from the 180th District Court

    Harris County, Texas

    Trial Court Cause No. 832,925




    O P I N I O N  

       A jury found appellant, Oliver Simmons, guilty of the felony offense of possession of cocaine, weighing more than four grams and less than 200 grams. After appellant pleaded true to two enhancement paragraphs, alleging prior felony convictions, the jury assessed punishment at 28 years confinement. We affirm.

    Facts

    While on patrol on January 7, 2000, at approximately 10:00 p.m., Houston Police Officers Robert Speckman and Stephen Guerra saw a single-cab pick-up truck parked in front of a house at 9310 Ashville. The officers saw appellant and Joe Green leave the house, a known location for the sale of crack cocaine, and get into the passenger's side of the truck, which was driven by Vincent Hopkins.

    As the men drove from the house, the officers saw that the truck's right brake light was out. They followed the truck for a couple of blocks, and stopped it. Officer Guerra shone a spotlight on the truck to see what the men were doing. Because the truck's rear window was not tinted, the officers could see into it. Officer Speckman saw appellant, who was sitting between Hopkins and Green, make "exaggerated movements" by lifting his body and placing his hands to his sides. Officer Guerra testified he saw appellant raise his body and make a quarter turn, "as if he were putting something underneath his body." Both officers observed that only appellant moved.

    Officer Speckman walked to the passenger's door, and, when he got to the door, he saw appellant quickly remove his right hand from behind his back and place it in his lap. Speckman then told appellant and Green to get out of the truck. When appellant got out of the truck, Speckman saw a .25 caliber pistol on the seat where appellant had been sitting. Speckman testified he told Officer Guerra, who was speaking to Hopkins, that there was a gun on the seat, and Guerra then told Hopkins to get out of the truck. Guerra recovered the gun and noticed "a clear plastic wrapper laying [sic] in between the seats near the gun."

    Both appellant and Green were handcuffed and placed in the back of the patrol car while Officer Guerra went to investigate the plastic wrapper he had seen in the truck. Guerra noted that about one and one-half inches of the plastic wrapper was sticking out of the crevice of the truck seat approximately two inches from where the gun was previously lying. After removing the plastic wrapper from the crevice of the seat, Guerra saw it contained a quarter "cookie" (1) of crack cocaine.

    Appellant was arrested for possession of the crack cocaine found in the truck and was also charged with possession of the pistol. The officers testified that they intended to release Green from custody because he was not suspected of any illegal activity. However, Officer Speckman, before he unhandcuffed Green, checked the back seat of the patrol car and found one-eighth of a crack cocaine cookie underneath the seat where Green had been sitting. Green was then arrested for possession of the crack cocaine found in the patrol car.

    In addition to the testimony of officers Guerra and Speckman, the State offered the testimony of Green at trial. Green testified that he told appellant he was going to the house to buy crack cocaine and that appellant went with him. Green stated that, when he bought cocaine, he saw appellant speak to a woman who sold cocaine, but he did not see appellant buy any cocaine. Green further testified that, when the officers stopped the truck, both he and appellant were moving inside the truck. Green stated that, when he saw the officers behind them, he immediately looked back, put his seatbelt on, and put a can of beer he had been holding on the floor of the truck.

    Sufficiency of the Evidence

    In his first point of error, appellant argues that the evidence was legally insufficient to show that he intentionally or knowingly possessed the cocaine found in the truck. In his second point of error, appellant argues that the evidence was factually insufficient to show that he intentionally or knowingly possessed the cocaine.

    Legal Sufficiency

    In reviewing a legal sufficiency challenge, we inquire whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

    In order to establish the unlawful possession of a controlled substance, the State must prove that (1) the defendant exercised actual care, control, custody, or management of it and (2) the defendant was conscious of his connection with it and knew what it was. Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a) (Vernon Supp. 2002); Gilbert v. State, 874 S.W.2d 290, 297 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

    When an accused is not in exclusive control of the place where contraband is found, the State must show additional affirmative links between the defendant and the contraband. Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Texas courts have identified several factors that are pertinent in determining whether affirmative links between a defendant and contraband exist. However, the number of factors met is not important. Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Rather, it is essential to evaluate the "logical force of the evidence," or the degree to which the factors affirmatively link the accused to the contraband. Id. Thus, our focus is on the proof of the elements of the crime, not on how many factors cited in previous cases are present here. The relevant factors include (1) whether the contraband was in plain view; (2) whether it was conveniently accessible to the accused; (3) whether it was found on the same side of the car as the accused; (4) whether it was found in an enclosed space; and (5) whether the conduct of the accused indicated a consciousness of guilt. Id. Each case must be examined on its own facts. Id. We, therefore, examine this case on its facts.

       Officer Guerra testified that the gun was found lying in the center of the truck's seat in the same location where appellant had been sitting. Guerra testified that the plastic wrapper containing the crack cocaine was in the crevice between the seat cushions, approximately two inches from the gun. Thus, there was evidence to support jury findings that the cocaine was conveniently accessible to appellant, that it was on the same side of the car as the accused, and that it was found in an enclosed space (the car).

    Officer Guerra added that appellant raised his body, turned, and was moving around as if he were putting something underneath him. Guerra testified that appellant reached underneath himself and then turned forward. Guerra stated that he took strong note of appellant's movements because the truck had just left a known drug house and that appellant was the only person in the truck whom he saw move. Officer Speckman testified that he saw appellant pull his hands from behind him. Appellant's movements thus tend to show that he was conscious of the crack cocaine and that he placed it in the crevice of the seat in an attempt to conceal it from the officers.

    After evaluating the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found, beyond a reasonable doubt, sufficient affirmative links between appellant and the crack cocaine found in the truck. See King, 29 S.W.3d at 562. We hold the evidence was legally sufficient to show appellant possessed the cocaine found in the truck. Id.

    We overrule appellant's first point of error.

    Factual Sufficiency

    In reviewing a factual sufficiency challenge, we inquire 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 confidence in the jury's determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 563. In conducting the analysis, we may disagree with the jury's determination, even if the probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. Id. Accordingly, we will reverse the fact finder's determination only if a manifest injustice has occurred. Id.

    Appellant specifically argues that the following evidence tends to show that Green, and not appellant, possessed the cocaine found in the truck: (1) appellant merely accompanied Green to the house; (2) Green did not see appellant buy any cocaine; (3) Hopkins and Green were in close proximity to the cocaine found in the truck; (4) police did not check the plastic bag containing the cocaine for fingerprints; and (5) the officers' testimony that appellant was moving in the truck is consistent with appellant's having hidden the gun, rather than the cocaine.

    There was no dispute that Green bought cocaine in the house on the same evening appellant was arrested. The evidence that Green bought cocaine, however, does not preclude a finding by the jury that appellant possessed cocaine. Furthermore, whether appellant knew why Green wanted to go to the house is also not determinative of whether appellant, too, purchased cocaine when he got there or whether appellant possessed the cocaine found in the truck. Green testified that appellant went into the house and spoke to a woman who sold narcotics, but Green did not see appellant buy any cocaine because Green went outside. Even though Green did not see appellant actually purchase any cocaine, his testimony showed that appellant had adequate opportunity to buy cocaine while in the house.

    The officers' testimony that they saw only appellant moving in the truck also tends to show that appellant, and not Green or Hopkins, hid the cocaine. The officers stated that appellant raised his body as if he were hiding something where he was sitting. Appellant does not dispute that his movements would have allowed him to conceal the pistol. Because the pistol was only two inches from where the cocaine was placed between the seat cushions, the jury was free to believe that appellant also placed the plastic bag containing the cocaine between the seat cushions and placed the pistol beneath him. See Collins v. Smith, 53 S.W.3d 832, 836 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (holding jury is sole judge of credibility of witnesses and weight to be given their testimony). The jury could also reasonably believe, because the officers testified that they saw only appellant moving inside the truck, that appellant, and not Hopkins or Green, hid the cocaine. Id. In addition, the jury could reasonably believe that Green did not hide the cocaine he had purchased in the truck, but took it with him to the patrol car. Finally, the fact that police did not check the bag for fingerprints does not make it more likely that Green, rather than appellant, hid the bag of cocaine behind the seat. After a neutral review of all of the evidence, we conclude that the evidence was factually sufficient to support appellant's conviction for possession of a controlled substance. King, 29 S.W.3d at 563.

    We overrule appellant's second point of error.

    Jury Charge

    In his third and fifth points of error, appellant argues that the trial court erred by not submitting a jury charge instruction that Green was an accomplice as a matter of law and erred by including an instruction on the law of parties. He argues that both errors caused him egregious harm.  

    In addressing appellant's argument, we first must determine whether error exists in the charge. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If error exists, we then must determine whether sufficient harm was caused by the error to require reversal of the conviction. Id. Error which has been properly preserved by objection will call for reversal unless the error is harmless. Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1984); Payne v. State, 33 S.W.3d 374, 375 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). When no proper objection was made at trial, a reversal is proper only when the error resulted in egregious harm. Id.; Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.--Houston [1st Dist.] 2001, no pet.).  

    Accomplice Testimony

    Appellant argues that Green was an accomplice witness as a matter of law because (1) Green was convicted of the same offense or a lesser included offense for which appellant was indicted; (2) appellant's indictment stated that Green was a co-defendant; (3) the charge included an instruction on the law of parties; and (4) the State referred to Green as appellant's co-defendant at trial.

    An accomplice witness is one who participates with a defendant before, during, or after the commission of a crime. Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999). The participation must involve an affirmative act committed by the witness to promote the commission of that offense. Id. In order to be an accomplice as a matter of law, the witness must be susceptible to prosecution for the same offense with which the accused is charged. Id. Only when there exists no doubt, or when the evidence clearly shows that a witness is an accomplice witness as a matter of law, is the trial judge under a duty to so instruct the jury. Id; Valencia v. State, 51 S.W.3d 418, 422 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). Conversely, if the witness is not an accomplice as a matter of law, no instruction is necessary. Valencia, 51 S.W.3d at 422. If there is a question of fact as to the witness's status, the court should instruct the jury to decide the question. Id. The testimony of an accomplice witness is insufficient to establish guilt, unless corroborated. Tex. Code Crim. Proc. Ann. art 38.14 (Vernon 1979); Valencia, 51 S.W.3d at 422.

    First, we observe that Green was not convicted of the same or a lesser included offense as was appellant. Although both Green and appellant were convicted of possession of cocaine, Green was convicted of possessing the cocaine found in the patrol car, and appellant was convicted of possessing the cocaine found in Hopkins's truck. Moreover, Green was listed as a "co-defendant" under the heading of appellant's indictment. The body of the indictment did not allege any facts implicating Green in appellant's possession of the cocaine found in the truck. Appellant argues, nevertheless, that the instruction on the law of parties and the State's reference to Green as a "co-defendant" made Green an accomplice as a matter of law. We disagree.

    The issue is whether there was any evidence that Green was an accomplice as a matter of law. Appellant has not directed us to any facts which indicate that Green was an accomplice to appellant's possession of the cocaine found in the truck. The State's references to Green as a "co-defendant" do not, by themselves, show that Green committed an affirmative act to promote the commission of appellant's possession of cocaine or that Green was susceptible to prosecution for the offense with which appellant was charged. See Kutzner, 994 S.W.2d at 187.

    We conclude that Green was not an accomplice as a matter of law. See Id. Therefore, appellant was not entitled to an accomplice witness instruction. See Id. Moreover, we observe that, even if Green was an accomplice witness, the testimony of Officers Guerra and Speckman and the evidentiary factors recited above were sufficient to convict appellant. Therefore, the failure to give an accomplice witness instruction, even if error, was harmless. See Almanza, 686 S.W.2d at 171-72.

    We overrule appellant's third point of error.

    Law of Parties

    Appellant argues the trial court erred in including an instruction on the law of parties because there was no evidence which showed that appellant was a party to Green's possession of the cocaine found in the patrol car.

    An instruction on the law of parties may be given to the jury whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999). A person is criminally responsible for an offense committed by the conduct of another if, among other things, he acted with intent to promote or assist the commission of the offense and he solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1994).

    We have already concluded that the evidence was sufficient to show that appellant possessed the cocaine found where he was sitting in the truck. Where the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless. Ladd, 3 S.W.3d at 564-65. Without deciding that the trial court erred by including a parties charge, we conclude that any error from such a charge would have been harmless. Almanza, 686 S.W.2d 171-72.

    We overrule appellant's fifth point of error.

    Ineffective Assistance of Counsel

    In his fourth, sixth, seventh, and eighth points of error, appellant argues that his trial counsel was ineffective. Specifically, appellant argues that his trial attorney was ineffective because: (1) he did not object to the trial court's reading testimony to the jury that exceeded the testimony in dispute; (2) he did not object to the inclusion of the parties charge; (3) he did not object to the admission of "highly prejudicial and irrelevant evidence," including Officer Speckman's testimony that cocaine users generally buy pieces or rocks of crack cocaine and that dealers buy larger portions of a crack cocaine cookie; and (4) he did not request an instruction on accomplice witness testimony.  

    To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Howland v. State, 966 S.W.2d 98, 104 (Tex. App.--Houston [1st Dist.] 1998), aff'd, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must show that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. The appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd).

    Here, no motion for new trial was filed to determine whether trial counsel's strategy was ineffective. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Reviewing the record, therefore, we must presume that appellant's trial counsel's strategy was sound. Gamble, 916 S.W.2d at 93.

    Appellant has not shown by a preponderance of the evidence that, but for his trial counsel's actions, the outcome of the trial would have been different. Howland, 966 S.W.2d at 104; Davis, 830 S.W.2d at 765.  

    We overrule appellant's fourth, sixth, seventh, and eighth points of error.











    Conclusion

    We affirm the judgment of the trial court.



    Evelyn V. Keyes

    Justice



    Panel consists of Justices Hedges, Jennings, and Keyes.

    Do not publish. Tex. R. App. P. 47.

    1.

    A "cookie" is a circular piece of crack cocaine that is generally broken down into smaller units for retail sale.