Jeremy David Lummus v. State ( 2015 )

ACCEPTED
07-15-00120-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
9/21/2015 9:13:41 AM
Vivian Long, Clerk
IN THE COURT OF APPEALS FOR THE
SEVENTH DISTRICT OF TEXAS
FILED IN
7th COURT OF APPEALS
JEREMY DAVID LUMMUS, § AMARILLO, TEXAS
APPELLANT § 9/21/2015 9:13:41 AM
§ VIVIAN LONG
CLERK
V. § NO. 07-15-00120-CR
§
THE STATE OF TEXAS, §
APPELLEE §
APPEALED FROM CAUSE NUMBER 1394641D IN THE 297TH
DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE
DAVID HAGERMAN, PRESIDING.
§§§
STATE'S BRIEF
§§§
Oral argument is not requested.
SHAREN WILSON ANNE SWENSON, Assistant
Criminal District Attorney Criminal District Attorney
Tarrant County, Texas State Bar No. 19575500
401 W. Belknap Street
DEBRA WINDSOR, Assistant Fort Worth Texas 76196-0201
Criminal District Attorney (817) 884-1687
Chief, Post-Conviction FAX (817) 884-1672
COAAppellateAlerts@tarrantcounty.com
ALICIA COOPER AND
KIMBERLY V. MARTINEZ,
Assistant Criminal District
Attorneys
TABLE OF CONTENTS
INDEX OF AUTHORITIES ....................................................................... iv
STATEMENT OF THE CASE..................................................................... 1
STATEMENT OF FACTS ........................................................................... 2
SUMMARY OF THE ARGUMENT ............................................................ 6
STATE'S RESPONSE TO APPELLANT’S ISSUE ONE
(Denial of Motion for Mistrial) .................................................................... 8
I. Standard of Review -- Trial Court’s Denial of a Motion for
Mistrial ................................................................................................ 9
II. The presumption of cure applies to a witness’s reference to an
extraneous offense ............................................................................ 10
III. Speculation cannot transform mundane evidence into an
extraneous offense ............................................................................ 11
IV. Any harm was cured by the trial court’s prompt instruction to
disregard ........................................................................................... 15
STATE'S RESPONSE TO APPELLANT’S ISSUE TWO
(Lesser-Included Offense Instruction) ...................................................... 22
I. Appellant’s present complaint was not preserved .......................... 23
II. Standard of Review -- Lesser-Included Offense Instruction.......... 27
III. There was no affirmative evidence that Appellant possessed
less than four grams of methamphetamine, including any
adulterants and dilutants ................................................................ 30
ii
A. Appellant mischaracterizes Mr. Harris’s testimony by
presenting it out of context ..................................................... 32
1. Chemist Harris clearly testified, as a matter of
chemical analysis, that there were over 23 grams of
methamphetamine, including any adulterants and
dilutants ......................................................................... 32
2. The context of the testimony Appellant invokes is
Appellant's conflation of chemical analysis with
historical facts about the recovery of the drugs ........... 34
B. Even if Appellant’s out-of-context distortion of Mr.
Harris’s testimony were accepted, Appellant’s complaint
would still lack merit .............................................................. 36
STATE'S RESPONSE TO APPELLANT’S ISSUE THREE
(Trial Court’s Denial of Appellant’s (Oral) Motion to Suppress) ............ 39
I. Appellant’s state claims should be held waived ............................. 41
II. Appellant’s third issue should be found to have been
forfeited on appeal ............................................................................ 42
III. Appellant’s present complaint was forfeited at trial ...................... 45
IV. Appellant’s unchallenged arrest for driving without a license
entitled the police to search Appellant’s pockets as a search
incident to arrest .............................................................................. 45
CONCLUSION ........................................................................................... 48
PRAYER ..................................................................................................... 48
CERTIFICATE OF COMPLIANCE .......................................................... 48
CERTIFICATE OF SERVICE ................................................................... 49
iii
TABLE OF AUTHORITIES
CASE(S) PAGE(S)
Aguilar v. State, Nos. 05-07-00660-CR,
05-07-00661-CR, 2008 WL 3823992
(Tex.App. -- Dallas Aug. 18, 2008, pet. ref’d)
(not designated for publication) ....................................................... 18
Aguilar-Pineda v. State, No. 05-13-01517-CR, 2015 WL 1314657
(Tex.App. -- Dallas Mar. 20, 2015, no pet.)
(mem. op. not designated for publication) ....................................... 24
Archie v. State, 221 S.W.3d 695
(Tex. Crim. App. 2007) ....................................................................... 9
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710
(2009) ................................................................................................. 46
Arnold v. State, 873 S.W.2d 27
(Tex. Crim. App. 1993) ........................................................... 34,41,42
Austin v. State, 222 S.W.3d 801
(Tex.App. -- Houston [14th Dist.] 2007, pet. ref’d) ....................... 16n
Bankston v. State, No. 05-14-00076-CR, 2015 WL 2265675
(Tex.App. -- Dallas May 13, 2015, no pet.)
(mem. op., not designated for publication).................................... 25n
Bell v. State, 90 S.W.3d 301
(Tex. Crim. App. 2002) ..................................................................... 44
Belton v. State, 900 S.W.2d 886
(Tex.App. -- El Paso 1995, pet. ref’d) ............................................... 12
iv
Burleson v. State, No. 01-11-00866-CR, 2013 WL 772947
(Tex.App. -- Houston [1st Dist.] Feb. 28, 2013, pet. ref’d)
(mem. op., not designated for publication) ...................................... 11
Campos v. State, 589 S.W.2d 424
(Tex. Crim. App. 1979) ..................................................................... 15
Conrad v. Texas BAC Home Loan Servicing, ___ S.W.3d ___,
No. 07-12-00305-CV, 2014 WL 545726
(Tex.App. -- Amarillo Feb. 7, 2014, no pet.) (mem. op.) ................. 43
Davis v. State, No. 09-03-521-CR, 2005 WL 1907011
(Tex.App. -- Beaumont Aug. 10, 2005, pet. ref’d)
(mem. op., not designated for publication) ...................................... 33
DeBlanc v. State, 799 S.W.2d 701
(Tex. Crim. App. 1990) ..................................................................... 41
Dekneef v. State, 379 S.W.3d 423
(Tex.App. -- Amarillo 2012, pet. ref’d) ............................................. 14
Enriquez v. State, 21 S.W.3d 277
(Tex. Crim. App. 2000). .................................................................... 38
Farrakhan v. State, 247 S.W.3d 720
(Tex. Crim. App. 2008) ..................................................................... 28
Feldman v. State, 71 S.W.3d 738
(Tex. Crim. App. 2002) ..................................................................... 27
Finney v. State, No. 2-02-034-CR, 2003 WL 151972
(Tex.App. -- Fort Worth Jan. 23, 2003, pet. ref’d)
(mem. op., not designated for publication) ...................................... 25
Fuller v. State, 253 S.W.3d 220
(Tex. Crim. App. 2008) .................................................................. 16n
v
Gamboa v. State, 296 S.W.3d 574
(Tex. Crim. App. 2009) ..................................................................... 15
Garcia v. State, No. 05-00-01782-CR, 2002 WL 84403
(Tex.App. -- Dallas Jan. 23, 2002, no pet.)
(not designated for publication) ................................................ 17n,19
Gardner v. State, 730 S.W.2d 675
(Tex. Crim. App. 1987) ..................................................................... 15
Garza v. State, No. 03-04-00508-CR, 2006 WL 2706964
(Tex.App. -- Austin Sept. 21, 2006, pet. ref’d)
(mem. op., not designated for publication) ...................................... 20
Goad v. State, 354 S.W.3d 443
(Tex. Crim. App. 2011) ..................................................................... 29
Godsey v. State, 719 S.W.2d 578
(Tex. Crim. App. 1986) ..................................................................... 34
Green v. State, No. 01-10-01101-CR, 2012 WL 1143564
(Tex.App. -- Houston [1st Dist.] April 5, 2012, no pet.)
(mem. op., not designated for publication) ...................................... 12
Greer v. State, 783 S.W.2d 222
(Tex.App. -- Dallas 1989, no pet.) .................................................. 24n
Hall v. State, 225 S.W.3d 524
(Tex. Crim. App. 2007) ..................................................................... 27
Hall v. State, 62 S.W.3d 918
(Tex.App. -- Dallas 2001, pet. ref’d) ................................................. 34
Hampton v. State, 109 S.W.3d 437
(Tex. Crim. App. 2003) ................................................................ 28,33
vi
Hawkins v. State, 135 S.W.3d 72
(Tex. Crim. App. 2004) .................................................................. 9,10
Heitman v. State, 815 S.W.2d 681
(Tex. Crim. App. 1991) ..................................................................... 41
Hernandez v. State, 805 S.W.2d 409
(Tex. Crim. App. 1990) ..................................................................... 11
Jefferson v. State, Nos. 05-08-00943-CR, 05-08-00944-CR,
05-08-00945-CR, 2010 WL 2574202
(Tex.App. -- Dallas June 29, 2010, pet. ref’d)
(not designated for publication) ....................................................... 27
Kemp v. State, 846 S.W.2d 289
(Tex. Crim. App. 1992) ..................................................................... 10
Laca v. State, 893 S.W.2d 171
(Tex.App. -- El Paso 1995, pet. ref'd) ............................................... 13
Ladd v. State, 3 S.W.3d 547
(Tex. Crim. App. 1999) ..................................................................... 11
Longoria v. State, No. 13-12-00226-CR, 2013 WL 5675913
(Tex.App. -- Corpus Christi Oct. 17, 2013, no pet.)
(mem. op., not designated for publication) ...................................... 44
McKithan v. State, 324 S.W.3d 582
(Tex. Crim. App. 2010) ..................................................................... 28
Mapp v. Ohio, 367 U.S. 643
(1961) ............................................................................................ 40,42
Martinez v. State, No. 2-03-218-CR, 2004 WL 1700073
(Tex.App. -- Fort Worth July 29, 2004, no pet.)
(per curiam mem. op., not designated for publication) ................ 14n
vii
Moreno v. State, 858 S.W.2d 453
(Tex. Crim. App. 1993) ..................................................................... 11
Neidholt v. State, No. 08-11-00354-CR, 2013 WL 841624
(Tex.App. -- El Paso March 6, 2013, no pet.)
(not designated for publication) ................................................. 18,42
Norfleet v. State, Nos. 01-10-00429-CR,
01-10-00430-CR, 2011 WL 2436494
(Tex.App. -- Houston [1st Dist.] June 16, 2011, no pet.)
(mem. op., not designated for publication) .................................... 16n
Ortega v. State, No. 11-99-00259-CR, 2001 WL 34373377
(Tex.App. -- Eastland Sept. 27, 2001, no pet.)
(not designated for publication) ....................................................... 33
Plummer v. Reeves, 93 S.W.3d 930
(Tex.App. -- Amarillo 2003, pet. denied) ......................................... 44
Ramos v. State, 865 S.W.2d 463
(Tex. Crim. App. 1993) ................................................................ 30,34
Rice v. State, 333 S.W.3d 140
(Tex. Crim. App. 2011) ..................................................................... 30
In re R.M., No. 08-02-00105-CV, 2002 WL 31840968
(Tex.App. -- El Paso Dec. 19, 2002, no pet.) .................................... 13
Rodriguez v. State, No. 01-05-00589-CR, 2006 WL 2042513
(Tex.App. -- Houston [1st Dist.] July 20, 2006, no pet.)
(mem. op., not designated for publication) ................................. 19,20
Rojas v. State, 986 S.W.2d 241
(Tex. Crim. App. 1998) ..................................................................... 19
Russell v. State, 798 S.W.2d 632
(Tex.App. -- Fort Worth 1990, no pet.) ............................................ 19
viii
Schmidt v. State, 278 S.W.3d 353
(Tex. Crim. App. 2009) ..................................................................... 36
Seals v. State, 187 S.W.3d 417
(Tex. Crim. App. 2005) ..................................................................... 35
Segundo v.. State, 270 S.W.3d 79
(Tex. Crim. App. 2008) ...................................................... 27,28,29,37
Skinner v. State, 956 S.W.2d 532
(Tex. Crim. App. 1997) ................................................................ 28,30
Snowden v. State, 353 S.W.3d 815
(Tex. Crim. App. 2011) ..................................................................... 17
Solis v. State, No. 13-03-00262-CR, 2006 WL 2025154
(Tex.App. -- Corpus Christi July 20, 2006, no pet.)
(mem. op., not designated for publication)...................................... 18
State v. Reyes, No. WD-02-069, 2004 WL 937296
(Ohio Ct. App. April 30, 2004)
(not designated for publication) ....................................................... 12
Sullens v. State, No. 02-13-00364-CR, 2015 WL 3523143
(Tex.App. -- Fort Worth June 4, 2015, pet. ref’d)
(mem. op., not designated for publication)...................................... 11
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118
(Tex.App. -- Houston [1st Dist.] 2002, pet. denied) ................... 43,44
Threadgill v. State, 146 S.W.3d 654
(Tex. Crim. App. 2004) ..................................................................... 29
Thrift v. State, 176 S.W.3d 221
(Tex. Crim. App. 2005) ..................................................................... 10
ix
Tolbert v. State, 306 S.W.3d 776
(Tex. Crim. App. 2010) ..................................................................... 23
Turner v. State, 886 S.W.2d 859
(Tex.App. -- Beaumont 1994, pet. ref’d) .......................................... 41
United States v. Hastings, 461 U.S. 499, 103 S. Ct. 1974
(1983) ................................................................................................. 17
Upchurch v. State, 23 S.W.3d 536
(Tex.App. -- Houston [1st Dist.] 2000, pet. ref'd) ...................24n,25n
Wead v. State, 129 S.W.3d 126
(Tex. Crim. App. 2004) ....................................................................... 9
Wong Sun v. United States, 371 U.S. 471
(1963) .......................................................................................... 40n,42
Wood v. State, 18 S.W.3d 642
(Tex. Crim. App. 2000) .................................................................. 9,15
Wortham v. State, 412 S.W.3d 552
(Tex. Crim. App. 2013) ................................................................ 28,29
CONSTITUTIONS, CODES & RULES:
TEX. CODE CRIM. PROC. art. 36.14....................................................... 24
TEX. CODE CRIM. PROC. art. 37.09..................................................... 25n
TEX. CODE CRIM. PROC. art. 38.21....................................................... 43
TEX. CODE CRIM. PROC. art. 38.22....................................................... 43
TEX. CODE CRIM. PROC. art. 38.23..................................................... 36n
x
TEX. CONST. art. I, § 9 ............................................................................. 43
TEX. CONST. art. I, § 10 ........................................................................... 43
TEX. CONST. art. I, § 19 ........................................................................... 43
TEX. HEALTH & SAFETY CODE § 481.002(49) .................................... 32
TEX. HEALTH & SAFETY CODE § 481.112(a) .................................... 25n
TEX. HEALTH & SAFETY CODE § 481.115(a) .................................... 25n
TEX. R. APP. P. 9.4(i)(1)............................................................................ 48
TEX. R. APP. P. 33.1(a)(1)(A) .................................................................... 45
TEX. R. APP. P. 38.1(i) ............................................................... 19,42,43,44
TEX. R. EVID. 403 ................................................................................... 14n
TEX. R. EVID. 404(b) .................................................................................. 8
U.S. CONST. amend. I............................................................................... 43
U.S. CONST. amend. IV ............................................................................ 43
U.S. CONST. amend. V ............................................................................. 43
U.S. CONST. amend. VI ............................................................................ 43
U.S. CONST. amend. IX ............................................................................ 43
U.S. CONST. amend. XIV ......................................................................... 43
xi
IN THE COURT OF APPEALS FOR THE
SEVENTH DISTRICT OF TEXAS
JEREMY DAVID LUMMUS, §
APPELLANT §
§
V. § NO. 07-15-00120-CR
§
THE STATE OF TEXAS, §
APPELLEE §
APPEALED FROM CAUSE NUMBER 1394641D IN THE 297TH
DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE
DAVID HAGERMAN, PRESIDING.
TO THE HONORABLE SEVENTH COURT OF APPEALS:
STATEMENT OF THE CASE
THE CHARGE(S)..................POSSESSION OF METHAMPHETAMINE
WITH INTENT TO DELIVER 4-200 GRAMS
(COUNT ONE); POSSESSION OF METHAMPHETAMINE
4-200 GRAMS (COUNT TWO); AND REPEAT OFFENDER NOTICE
CR. I-6
THE PLEA(S)………………………………NOT GUILTY (EACH COUNT);
TRUE (REPETITION)
CR. I-83; RR. IV-11-12; RR. V-100
THE VERDICT(S) (Jury)……..............................GUILTY (COUNT ONE);
TRUE (REPETITION)
CR. I-79, 87-89; RR. V-90
THE SENTENCE (Jury)……………….........27 YEARS IMPRISONMENT
WITH $359 IN COURT COSTS
CR. I-83, 87-89; RR. VI-27-28
1
STATEMENT OF FACTS
On December 2, 2014, Tarrant County Narcotics Unit (TCNU)
investigators observed Appellant get into a motor vehicle and drive away.1
The investigators are aware that Appellant does not possess a valid
driver’s license.2 And they relay that information (along with the vehicle's
description and license plate number) to a nearby police patrol unit, who
proceeds to pull over Appellant’s vehicle.3
After Appellant’s vehicle finally pulls over and comes to a stop,4
Appellant and his passenger jump out.5 Appellant is subsequently
arrested for driving without a driver’s license.6 Incident to that arrest, the
police pat down Appellant's outer clothing,7 removing a digital scale (SX-
3),8 commonly used for weighing narcotics,9 and a cell phone (SX-4) from
1 RR. V-41-42; RR. IV-82-83 (investigators were working in an undercover
capacity). As part of an investigation involving Appellant, TCNU was
surveilling Appellant’s home. RR. IV-43, 78-80.
2 RR. IV-82; RR. V-41.
3 RR. IV-24-25, 83-84. SX-5 is a photograph taken off of Google Maps
showing where the traffic stop occurred. RR. IV-69-71.
4 RR. IV-23-24, 26.
5 RR. IV-28, 52, 74-75.
6 RR. IV-34-35, 90; SX-9 (“Stipulation of Testimony”).
7 RR. IV-35, 56-57.
8 RR. IV-36 (police removed the batteries from SX-3).
9 RR. IV-37; see also RR. V-53. Sergeant Tim Denison, who is with the
White Settlement Police Department (RR. IV-17), testified that while digital
2
Appellant's pocket(s).10 Next, the police place Appellant in the backseat of
a patrol car.11
While in the backseat of the patrol car, Appellant managed to move
his handcuffed hands from behind his back to the front of his body. 12
Appellant then wiggled around and removed plastic baggie(s) from
underneath his clothing.13
scales are not illegal “I would say better than 95 percent of the time that I come
across them it's involved in narcotics.” RR. IV-56; RR. V-53 (“Digital scales are
often used to ensure the amount that's being sold;” street users do not normally
carry around a scale.).
10 RR. IV-35, 55. Sergeant Denison testified that he removed the digital
scale from Appellant’s pants pocket. RR. IV-37-38.
11 RR. IV-35, 38. Once Appellant was placed in the backseat of the patrol
unit, the camera facing the back of that patrol unit was turned on. RR. IV-38;
SX-2 at 15:30:31 (patrol car camera starts recording).
SX-2 is a DVD containing the redacted version of the patrol car video. SX-
2 was introduced into evidence for all purposes. RR. IV-31-32. (For purposes of
citation, the State is using the counter that is visible on the bottom, right corner
of the DVD screen.)
12 Compare SX-2 at 15:30:07 (Appellant’s hands are handcuffed behind his
back as he is escorted to the patrol car) with SX-2 at 15:31:25 (Appellant’s hands
no longer appear to be behind his back); see also RR. IV-41-42 (“if they are
putting their hands in front of them, they -- you know, they -- you don't know
what the intentions of that -- that -- that action is for”). The handcuffs could be
used as a weapon. RR. IV-42-43.
13 SX-2 at 15:30:41-:35:27 (Appellant starts squirming and wiggling around
almost immediately. He is breathing heavily as he twists, turns and contorts his
body this way and that.).
3
Appellant ripped into the plastic baggie(s) with his hands (and
possibly his teeth)14 and spread a crystalline substance (later identified as
methamphetamine)15 all over the backseat area and floorboard(s) of the
patrol car.16 When the police noticed what was happening, they removed
14 SX-2 at 15:35:10-:11 (audible ripping/tearing sound); SX-2 at 15:35:34-
35:47 (audible spitting sounds); SX-2 at 15:38 (Appellant puts something in his
mouth); SX-2 at 15:43:10 (same); SX-2 at 15:39:46-45:50 (repeated foot
scraping/foot shuffling/spreading-with-feet noises can be heard followed by
spitting in the direction of the floorboard).
15 RR. IV-88-89 ("It looked like a chalk that had been smushed on the -- the
bottom of the floorboard of the police car."); SX-7 (chemist's report); RR. V-26
(chemist testifies that "23.78 grams is the bulk of crystalline substance")
(emphasis added); RR. V-27 (crystal substance contains methamphetamine); RR.
V-29 (same); RR. V-32 (after separating out debris, chemist was confident that
there was more than four grams of methamphetamine, including any
adulterants and dilutants, that went together to make crystallized substance);
see also SX-8 (two sandwich bags with handtied knots on one end recovered from
patrol vehicle); RR. V-50 (sandwich bags were wet to touch and torn when
Investigator David Mac Bennett recovered them from the backseat of the patrol
car; Investigator Bennett further testified that “[p]art of the baggies still had
white crystal substance in them that I removed as much as possible [of the white
crystal substance] and bagged” it in SX-6).
16 RR. IV-41 (“there was a large amount of crystal rock type substance that
was scattered all over the floorboard and backseat area of the patrol car”); RR. V-
40 (there was "a large amount of a white crystal substance in the floorboard and
specifically by the lower doorjamb molding"); SX-2 at 15:37:25-:45:50 (Appellant
can be seen and heard digging around the doorjamb of the patrol car;
spreading/rubbing/scraping/rustling/spitting sounds are also audible).
4
Appellant from the patrol car and placed him on the ground.17 They then
collected evidence from inside and outside the patrol car.18
Investigator Randy Baker19 testified that he did not ask Appellant for
consent to search Appellant’s person or property.20 Sergeant Denison
testified that he requested consent to search the trunk of Appellant's
vehicle, but was denied.21
17 RR. IV-41. Appellant is lying on the ground "crying and crying." RR. IV-
87. "He was upset." RR. IV-90.
18 RR. IV-59-60; RR. V-44-46; SX-2 at 15:36:40-37:00 (Appellant throws
something out of the patrol car); see also SX-6 (methamphetamine that was
gathered by police from the rear of the patrol car, as well as a scant amount that
police recovered from the treads of Appellant's shoes); RR. V-50.
Investigator Bennett, who handled the evidence (RR. IV-59; RR. V-44),
testified that he "used a Leatherman tool to loosen one bolt to get underneath
the lower door [molding], to raise it up and get around the rubber seal where a
lot of the suspected methamphetamine had been pushed." RR. V-45. "[I]t took
me approximately 30 to 40 minutes of meticulous time in the backseat of that
floorboard to try to get as much of the evidence as I could." RR. V-45. The
methamphetamine was gathered "[p]inch by pinch by pinch." RR. V-44.
19 RR. IV-76-78 (Investigator Baker, a veteran certified peace officer, is
employed by the Blue Mound Police Department and works as an
officer/investigator with TCNU).
20 RR. IV-93-94.
21 RR. IV-39.
5
SUMMARY OF THE ARGUMENT
STATE’S RESPONSE TO APPELLANT’S ISSUE ONE: The comment that
Appellant complains about was not extraneous-offense evidence and, even
if it was, it was cured by the trial court’s prompt instruction to disregard.
In addition, Appellant’s request that this Court “send a message” is not a
legitimate consideration.
STATE’S RESPONSE TO APPELLANT’S ISSUE TWO: Appellant’s
complaint was not preserved at trial as Appellant’s trial objection does not
comport with Appellant’s complaint on appeal. In the alternative, the trial
court did not err when it denied Appellant’s requested jury instruction on
the lesser-included offense of possession of methamphetamine in the
amount of one gram or more, but less than four grams. Appellant’s
argument relies upon a characterization of the record that (impermissibly)
plucks portions of Mr. Harris's testimony out of context. Appellant also
attempts to convert a witness’s lack of knowledge into affirmative evidence
raising a need for a jury instruction.
6
STATE’S RESPONSE TO APPELLANT’S ISSUE THREE: Appellant has
not argued his federal and state claims separately. Under these
circumstances, Appellant’s state claims should be held waived. The State
has no real idea what Appellant’s specific search and/or seizure complaint
might be, and for that reason, Appellant's third issue should be summarily
overruled as inadequately briefed. Whatever the search complaint
Appellant is attempting to present on appeal, it was not properly preserved
at trial. If the Court decides that Appellant is challenging the search
incident to Appellant’s arrest, Appellant’s unchallenged arrest for driving
without a license entitled the police to search Appellant’s pockets as a
search incident to arrest.
7
STATE'S RESPONSE TO APPELLANT’S ISSUE ONE
Denial of Motion for Mistrial
Appellant’s first issue complains that incurable harm was caused
when the trial court denied his motion for mistrial after a police
officer/TCNU investigator (Randy Baker) testified that he knew Appellant
“from a prior case.” Appellant’s br. at 4 (citing RR. IV-80). The premise of
Appellant’s complaint – that Appellant’s brief makes no real attempt to
justify – is that any testimony which might support an inference that the
defendant committed an extraneous offense triggers TEX. R. EVID. 404(b).
Appellant’s br. at 6 (arguing that Investigator Baker “either knew better,
or should have known better; or ignored the specific pre-trial instructions
of the prosecutor” and “put the skunk in the jury box”).22
22 Prior to the start of testimony, defense counsel stated that Appellant “had
filed a motion in limine not to go into extraneous matters . . . . “ RR. IV-7-8; see
generally CR. I-16 at #5 (“Defendant’s Motion in Limine Number One”). Defense
counsel further stated that he and the prosecutor had talked about this and that
it was defense counsel’s understanding from police reports “that there was a
[Confidential Informant] involved [who] claimed to have made multiple drug
transactions at [Appellant’s] residence prior to [the] date of this offense.” RR.
IV-8.
Defense counsel went on to state that his “understanding of what the State
is saying is we are not going to go into specific detail of the CI -- . . . previous
sales . . . .” RR. IV-8. “[J]ust that there was [a police] investigation, they did a
traffic stop, [Appellant] didn't have a driver's license [a fact that Appellant was
stipulating to], they placed him under arrest, and then we go on from there.”
8
The State will show that the comment Appellant complains about
was not extraneous-offense evidence and, even if it was, any error was
cured by the trial court’s prompt instruction to disregard. RR. IV-80. The
State will further show that Appellant’s request that this Court “send a
message”23 is not a legitimate consideration.
I. Standard of Review -- Trial Court’s Denial of a Motion for Mistrial
A trial court's refusal to grant a mistrial is reviewed under an abuse
of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.
App. 2004); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
The trial court ruling should be upheld if it is within the zone of reasonable
disagreement. Wead, 129 S.W.3d at 129.
A mistrial is required only in extreme circumstances where the
prejudice is incurable. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.
App. 2007); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)
RR. IV-8-9. To which the prosecutor responded: “I have admonished my
witnesses not to talk about any history, et cetera. Hopefully there will be no
mistakes.” RR. IV-9.
Defense counsel then clarified “And for the record, we're just asking the
Court to grant the motion in limine with respect to extraneous offense.” RR. IV-
9. The trial court “grant[ed] that motion in limine,” instructing the parties to
please approach the bench before getting into any extraneous offenses. RR. IV-9.
9
(mistrial is appropriate for only “highly prejudicial and incurable errors”).
A mistrial is the trial court’s remedy for improper conduct that is so
prejudicial that expenditure of further time and expense would be wasteful
and futile. Hawkins, 135 S.W.3d at 77.
II. The presumption of cure applies to a witness’s reference to an
extraneous offense.
“I[t] is well-settled that testimony [allegedly] referring to or implying
extraneous offenses can be rendered harmless by an instruction to
disregard by the trial judge, unless it appears the evidence was so clearly
calculated to inflame the minds of the jury or is of such damning character
as to suggest it would be impossible to remove the harmful impression
from the jury's mind.” Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim.
App. 1992). Furthermore, reviewing courts will presume that a jury
follows a trial court's instruction to disregard testimony, absent some proof
from the record that the jury did not or could not follow such an
instruction. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)
(presumption of cure was not rebutted; appellant failed to “point[ ] to
evidence that the jury failed to follow the trial court's instructions”).
23 See Appellant’s br. at 7.
10
Whether a witness's improper reference to an extraneous offense warrants
a mistrial depends on the particular facts of the case. Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999); Burleson v. State, No. 01-11-
00866-CR, 2013 WL 772947, at *9-10 (Tex.App. -- Houston [1st Dist.] Feb.
28, 2013, pet. ref’d) (mem. op., not designated for publication)
(unembellished reference to defendant’s involvement in arson of a church
was cured by trial court instruction).
III. Speculation cannot transform mundane evidence into an extraneous
offense.
If evidence fails to show that an offense was committed or that the
accused was connected to the offense then it is not evidence of an
extraneous offense. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.
1993). Speculative theories about why certain testimony amounted to a
reference to an extraneous offense are routinely rejected. See, e.g.,
Hernandez v. State, 805 S.W.2d 409, 413 (Tex. Crim. App. 1990)
(detective’s testimony that he worked in Crime Analysis Unit which kept
up with “active offenders” was not evidence that Appellant had committed
an extraneous offense); Sullens v. State, No. 02-13-00364-CR, 2015 WL
3523143, at *2 (Tex.App. -- Fort Worth June 4, 2015, pet. ref’d) (mem. op.,
11
not designated for publication) (rejecting theory that (1) domestic assault
victim’s testimony that she had a high pain threshold implied (2) that she
had previously been beaten by defendant).
The fact that Investigator Baker knew Appellant from a prior case is
not evidence that Appellant committed an extraneous offense. Green v.
State, No. 01-10-01101-CR, 2012 WL 1143564, at *2 (Tex.App. -- Houston
[1st Dist.] April 5, 2012, no pet.) (mem. op., not designated for publication)
(officer’s testimony that he knew defendant and knew his address was not
evidence of extraneous offense); Belton v. State, 900 S.W.2d 886, 900
(Tex.App. -- El Paso 1995, pet. ref’d) (officer’s testimony that he knew
appellant's address from “past dealings” was not evidence of an extraneous
offense); see also State v. Reyes, No. WD-02-069, 2004 WL 937296, at *8
(Ohio Ct. App. April 30, 2004) (not designated for publication) (all that
could be gleaned from arresting officer’s statement that he stayed out of
sight until the take down signal was given because defendant knew the
officer and if the officer’s face was seen it would all be over was that
defendant knew that the arresting officer was a police officer; officer never
said how defendant would have known him).
12
As the trial court observed (in a hearing outside the presence of the
jury, see RR. IV-100), Investigator’s Baker’s comment that he knew
Appellant from a prior case:
. . . can mean anything. [Appellant] could be a witness.
He could have been present. Yeah, he could have been
the target, but he could have been standing by. He could
have been just there merely present at a previous case.
RR. IV-103.
Appellant’s argument on appeal seems to assume that if Investigator
Baker knew Appellant from a previous case it must have been because
Appellant had committed an extraneous offense. See also RR. IV-104.
Thus, Appellant relies upon an assumption that Rule 404(b) is designed to
combat in order to claim a Rule 404(b) violation. See In re R.M., No. 08-02-
00105-CV, 2002 WL 31840968, at *3 (Tex.App. -- El Paso Dec. 19, 2002, no
pet.) (evidence that juvenile probation department employee visited
defendant’s home was not evidence that juvenile had committed an
extraneous offense).
Moreover and even if the police officer had testified that Appellant
had been a suspect in a prior case, such testimony would not amount to
evidence of an extraneous offense. Laca v. State, 893 S.W.2d 171, 186
13
(Tex.App. -- El Paso 1995, pet. ref'd) (evidence that the defendant had been
in detention without more is not evidence of an unadjudicated extraneous
offense); see also Dekneef v. State, 379 S.W.3d 423, 430 (Tex.App. --
Amarillo 2012, pet. ref’d) (vague testimony that defendant had been a
“suspect” in a prior case was cured by trial court’s instruction to disregard;
“[t]he fact that [the detective] used the word ‘suspect’ in his answer
without further explanation does not constitute a statement that is ‘clearly
calculated to inflame the minds of the jury and is of such character as to
suggest the impossibility of withdrawing the impression produced on their
minds’”).24
The testimony challenged by Appellant was not extraneous offense
evidence. Accordingly, there is no need to address whether there was
incurable error.
24 If the officer had testified that Appellant was a suspect in a prior case,
such testimony might be vulnerable to a Rule 403 objection. See Martinez v.
State, No. 2-03-218-CR, 2004 WL 1700073, at *3-4 (Tex.App. -- Fort Worth July
29, 2004, no pet.) (per curiam mem. op., not designated for publication)
(testimony that DWI defendant had taken sobriety tests twice before on night of
arrest was inadmissible under Rule 403, but was harmless). Neither at trial, nor
on appeal has Appellant lodged a Rule 403 complaint regarding the complained-
of evidence.
14
IV. Any harm was cured by the trial court’s prompt instruction to
disregard.
A reviewing court generally considers instructions given to the jury to
be sufficient to remedy most improprieties that occur during a trial and
presumes that a jury will follow the trial court’s instructions. Gamboa v.
State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); see Gardner v. State,
730 S.W.2d 675, 696 (Tex. Crim. App. 1987). Therefore, it is assumed that
the harm created by the error has been cured by the instruction to
disregard, “except in extreme cases where it appears that the question or
evidence is clearly calculated to inflame the minds of the jury and is of
such character as to suggest the impossibility of withdrawing the
impression produced on their minds.” Campos v. State, 589 S.W.2d 424,
428 (Tex. Crim. App. 1979); see also Wood, 18 S.W.3d at 648.
The trial court promptly instructed the jury to disregard the
testimony that Appellant complains about. RR. IV-80. While Appellant’s
briefing mentions that the trial court instructed the jury to disregard the
complained-of statement, see Appellant’s br. at 5, Appellant’s briefing
completely ignores the strong presumption of cure. See id. at 4-6. Instead
15
of attempting to rebut the presumption of cure, Appellant’s briefing offers
two non-legal arguments.
First, Appellant invokes the folksy skunk-in-the-jury-box slogan to
suggest that instructions to disregard never work. Appellant’s br. at 6. To
the extent that such a claim is any argument at all, it is an argument that
can only be addressed by the Court of Criminal Appeals. As set forth
previously, the well-settled law in Texas is that jurors are presumed to
follow the trial court’s instructions.25
25 Appellant’s brief also notes the trial court’s in limine ruling (RR. IV-9).
Appellant's br. at 3. But the curability of the complained-of comment has
nothing to do with the trial court’s in limine ruling.
A violation of an in limine ruling is a basis for a contempt finding – it
is not a basis for appellate relief:
As the Court of Criminal Appeals explained, “The violation of a
motion in limine may entitle a party to relief, but any remedies
available with regard to such a violation are with the trial court. If
its order has been violated, the trial court may apply the sanctions
of contempt or take other appropriate action.” Brazzell v. State, 481
S.W.2d 130, 131 (Tex.Crim.App.1972).
Norfleet v. State, Nos. 01-10-00429-CR, 01-10-00430-CR, 2011 WL 2436494, at
*3 (Tex.App. -- Houston [1st Dist.] June 16, 2011, no pet.) (mem. op., not
designated for publication); Austin v. State, 222 S.W.3d 801, 813-16 (Tex.App. --
Houston [14th Dist.] 2007, pet. ref’d) (where witness violated in limine ruling {in
injury to a child trial} by mentioning that another of defendant’s children had
died, appellate court looked solely to impact of evidence on jury in determining
whether a mistrial was required); see also Fuller v. State, 253 S.W.3d 220, 232
(Tex. Crim. App. 2008) (“A motion in limine . . . is a preliminary matter and
normally preserves nothing for appellate review.”) (italics in original); see
16
Second, Appellant urges the Court to find that the harm was not
cured so as to “send a message.” Appellant's br. at 6. Appellant’s punitive
theory of harm analysis has been expressly repudiated by the Court of
Criminal Appeals and the United States Supreme Court. United States v.
Hastings, 461 U.S. 499, 507, 103 S. Ct. 1974, 1979 (1983) (“the interests
preserved by the doctrine of harmless error cannot be so lightly and
casually ignored in order to chastise what the court viewed as prosecutorial
overreaching”); Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App.
2011) (“the harmless-error standard was never intended to satisfy any
punitive, deterrent, or remedial purpose”). Appellant’s request for the
Court to “send a message” should be seen for what it plainly is: a request
for an undeserved windfall.
Since Appellant makes no actual argument attempting to rebut the
presumption of cure, Appellant’s first issue should be overruled without
generally Garcia v. State, No. 05-00-01782-CR, 2002 WL 84403, at *1 (Tex.App.
-- Dallas Jan. 23, 2002, no pet.) (not designated for publication) (refusing to
address complaint that extraneous offense evidence violated trial court’s in
limine order because in limine orders preserve nothing for appeal and
appellant’s complaint on appeal did not comport with his relevancy trial
objection).
17
consideration of whether the alleged error was cured. Neidholt v. State,
No. 08-11-00354-CR, 2013 WL 841624, at *2 (Tex.App. -- El Paso March 6,
2013, no pet.) (not designated for publication) (because appellant failed to
brief issue of presumption that instruction to disregard cured harm when
deputy testified that he knew appellant from “past investigations,”
appellate court refuses to address merits of claim that mistrial was
required: “By failing to explain how Deputy Montanez’s comment was
incurable, Neidholt has inadequately briefed his issue and, since we have
no independent duty to make his arguments for him, presents nothing for
our review.”); Aguilar v. State, Nos. 05-07-00660-CR, 05-07-00661-CR,
2008 WL 3823992, at *9 (Tex.App. -- Dallas Aug. 18, 2008, pet. ref’d) (not
designated for publication) (appellate court holds seven issues
inadequately briefed where appellant did not explain or address why the
instructions to disregard did not suffice to cure the harm, if any, with
respect to the questions or statements complained about); see also Solis v.
State, No. 13-03-00262-CR, 2006 WL 2025154, at *5 (Tex.App. -- Corpus
Christi July 20, 2006, no pet.) (mem. op., not designated for publication)
(complaint forfeited by appellant’s failure to justify claim that instruction
18
to disregard did not cure error in prosecutor’s jury argument); see generally
TEX. R. APP. P. 38.1(i).
Alternatively, any harm was surely cured in the present case. “A
witness’s inadvertent reference to an extraneous offense is generally cured
by a prompt instruction to disregard.” Rojas v. State, 986 S.W.2d 241, 250
(Tex. Crim. App. 1998); Russell v. State, 798 S.W.2d 632, 634 (Tex.App. --
Fort Worth 1990, no pet.) (in capital murder trial, accomplice’s testimony
that he and defendant committed prior burglaries together was cured). In
Rodriguez, cure was found after a deputy testified that the assault victim
told him this was not the first time “something like this had happened.”
Rodriguez v. State, No. 01-05-00589-CR, 2006 WL 2042513, at *1-2
(Tex.App. -- Houston [1st Dist.] July 20, 2006, no pet.) (mem. op., not
designated for publication); see also Garcia, 2002 WL 84403, at *2 (in
indecency with a child prosecution, trial court’s prompt instruction to
disregard was sufficient to cure the error in admitting evidence that there
was “some information” appellant had molested another child in Mexico
and fled).
The Houston First Court of Appeals’s reasoning for applying the
presumption of cure in Rodriguez compares favorably to the present case:
19
Deputy Soefjes’s reference to an extraneous offense
was vague and isolated, was not directly solicited by
the State, was not emphasized, and was not further
referenced by the State. The State presented
sufficient evidence that appellant had committed a
Class C misdemeanor assault. Even though Dolores
had recanted her claim that appellant had pushed
her, it was for the jury, as the fact finder, to
determine which version of the events it would
believe. The record reflects that, after the defense
objected, the trial court promptly instructed the
jury to disregard the remark and reminded the jury
in the charge not to consider it in determining
appellant's guilt.
Rodriguez, 2006 WL 2042513, at *2.
If the comment in Rodriguez -- that this was not the first time
“something like this had happened” -- was vague, then the comment in the
present case was extremely vague.
Even if Investigator Baker’s comment about knowing Appellant could
somehow be construed as evidence that Appellant had committed an
extraneous offense, it was one of the mildest and vaguest references
imaginable. Garza v. State, No. 03-04-00508-CR, 2006 WL 2706964, at *3
(Tex.App. -- Austin Sept. 21, 2006, pet. ref’d) (mem. op., not designated for
publication) (“Any inference of other bad acts raised by the phrase ‘the
20
Zavala case’ is slight, and Garza has not shown that an instruction to
disregard would not have been effective to cure any error.”).
Appellant’s first issue should be overruled without consideration of
whether the alleged error was cured. In the alternative, Appellant's first
issue is without merit and should be overruled.
21
STATE'S RESPONSE TO APPELLANT’S ISSUE TWO
Lesser-Included Offense Instruction
In his second issue, Appellant claims that the trial court erred in
refusing to submit a lesser-included offense instruction. Appellant’s br. at
7-10. Specifically, Appellant contends that a fact issue was raised as to
whether Appellant possessed only one to four grams of methamphetamine
with intent to deliver. Id. at 7 (complaining only that Appellant raised a
fact issue about his possessing a lesser amount).
The State will establish that Appellant’s present complaint was not
preserved at trial as Appellant’s trial objection does not comport with
Appellant’s complaint on appeal. Alternatively, the trial court did not err
when it denied Appellant’s requested jury instruction on the lesser-
included offense of possession of methamphetamine in the amount of one
gram or more, but less than four grams. RR. V-66. Appellant’s argument
relies upon a characterization of the record that (impermissibly) plucks
portions of John Harris's26 testimony out of context. Appellant's br. at 6,
26 Mr. Harris is a forensic chemist with the Tarrant County Medical
Examiner’s Office. RR. V-10.
22
10. Appellant also attempts to convert a witness’s lack of knowledge into
affirmative evidence raising a need for a jury instruction.
I. Appellant’s present complaint was not preserved.
A defendant must request a lesser-included offense instruction before
he will be allowed to complain on appeal about the absence of such an
instruction. Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010)
(“lesser-included instructions are like defensive issues and . . . a trial court
is not statutorily required to sua sponte instruct the jury on lesser-included
offenses”) (emphasis in original).
Here, Appellant either asked for a different lesser than he attempts
to justify on appeal or he asked for a lesser on a different count than is at
issue on appeal. RR. V-66. When the trial court asked the parties whether
they had any requests, additions or deletions to the court's proposed
charge, Appellant replied:
Yes. We do have some proposed requested lesser-
included jury instructions. * * * On the offense of
possession of controlled substance, more than one,
less than four grams based upon the testimony of
John Harris.
RR. V-66 (emphasis added).
23
The offense Appellant was convicted of was possession of a controlled
substance with intent to deliver 4-200 grams. CR. I-79, 87-89. It is hard to
guess exactly what Appellant was requesting at trial. See RR. V-66.
Appellant had an obligation to provide a specific request to the trial court.
TEX. CODE CRIM. PROC. art. 36.14 (defendant must “present his
objections . . . distinctly specifying each ground of objection” to preserve
jury charge error); Aguilar-Pineda v. State, No. 05-13-01517-CR, 2015 WL
1314657, at *3 (Tex.App. -- Dallas Mar. 20, 2015, no pet.) (mem. op. not
designated for publication) (“Appellant's request for an instruction at trial
was not specific enough to preserve this issue for our review.”). Given
Appellant's statutory obligation, the lack of clarity in his request should
result in a finding of waiver.
There are at least two plausible interpretations of Appellant’s request
that do not comport with Appellant’s complaint on appeal. First, the most
reasonable interpretation of Appellant’s comment is that Appellant was
asking for a lesser-included offense of simple possession 1-4 grams.27
27 Texas courts have concluded that possession of a controlled substance is a
lesser-included offense of possession with intent to deliver a controlled
substance. Upchurch v. State, 23 S.W.3d 536, 538 (Tex.App. -- Houston [1st
Dist.] 2000, pet. ref'd); Greer v. State, 783 S.W.2d 222, 224 (Tex.App. -- Dallas
24
Appellant makes no argument on appeal that there was any evidence
that Appellant was only guilty of simple possession. Finney v. State, No. 2-
02-034-CR, 2003 WL 151972, at *1 (Tex.App. -- Fort Worth Jan. 23, 2003,
pet. ref’d) (mem. op., not designated for publication) (appellate complaint
that instruction should have been given on the offense of simple possession
of a controlled substance was not preserved at trial).28 Instead, Appellant
1989, no pet.) (“[p]ossession of a controlled substance is the quintessential
[lesser-included] offense of the crime of possession with intent to deliver”).
A person commits the offense of possession with intent to deliver a
controlled substance in Penalty Group 1 when “the person knowingly . . .
possesses with intent to deliver a controlled substance . . . .” TEX. HEALTH &
SAFETY CODE § 481.112(a). On the other hand, a person commits simple
possession of a controlled substance in Penalty Group 1 when “the person
knowingly or intentionally possesses a controlled substance . . . .” TEX. HEALTH
& SAFETY CODE § 481.115(a). Thus, “intent to deliver” the controlled
substance is the only significant difference between these two code provisions.
See generally TEX. CODE CRIM. PROC. art. 37.09 (an offense is a lesser-
included offense if “it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged”).
28 In order to justify a claim that Appellant was entitled to a charge on
simple possession, Appellant would need to point to evidence on appeal negating
or rebutting the intent to deliver. See Upchurch, 23 S.W.3d at 540 (“The
evidence above, when considered as a whole and under the controlling standard
of review, raises more than a scintilla of evidence that appellant was guilty only
of possession and had no intent to deliver.”); see also Bankston v. State, No. 05-
14-00076-CR, 2015 WL 2265675, at *4 (Tex.App. -- Dallas May 13, 2015, no pet.)
(mem. op., not designated for publication) (“As to intent to deliver, appellant
relies on Wheeler's testimony that five baggies containing methamphetamine
were on Shirley's person and only one was found in another location, inside a
duffel bag that appellant claimed to own. But appellant does not explain how
this evidence negates or rebuts the element of intent to distribute. We see no
logical connection between the location of the drugs within the pick-up truck and
25
merely argues that a fact issue was raised about the amount of the drugs.
Appellant’s br. at 10 (“possible” that Appellant was not criminally
responsible for entire 23.78 grams).29
Second, Appellant’s reference to the “offense of possession of
controlled substance” (RR. V-66) could have been asking for a lesser in
Count Two – which was the simple possession of 4-200 grams offense. See
Appellant's br. at 9 (“Possession of [a] controlled substance 1 to 4 grams
meets the definition of lesser included offense of possession of [a] controlled
substance 4 to 200 grams.”); see generally CR. I-6. Appellant was not
convicted of Count Two and a complaint about that count would be moot.
the likelihood that appellant intended to deliver the drugs to another.
Accordingly, we reject appellant's argument.”); see also RR. V-51-52 (in
Investigator Bennett's expert opinion, 23.78 grams is an amount consistent with
someone who is dealing, explaining that 1/10th of a gram would be a single
dosage unit so there are approximately 230 doses in 23.78 grams); RR. IV-35-38
(at the time of arrest, police found a digital scale in Appellant's pants pocket);
RR. IV-56 (Sergeant Denison testified that “I would say better than 95 percent of
the time that I come across [a digital scale] it's involved in narcotics.”); RR. V-53
(in Investigator Bennett's expert opinion, street users do not normally carry
around a scale; “[d]igital scales are often used to ensure the amount that's being
sold”).
29 Chemist Harris testified that “23.78 grams is the bulk of [the] crystalline
substance.” RR. V-26 (emphasis added) (weight of crystalline substance after
debris was separated out).
26
In sum, because the trial court was entitled to construe Appellant’s
request as seeking a different lesser-included instruction than the one
Appellant claims entitlement-to on appeal, Appellant’s complaint should be
held forfeited at trial. Jefferson v. State, Nos. 05-08-00943-CR, 05-08-
00944-CR, 05-08-00945-CR, 2010 WL 2574202, at *12-13 (Tex.App. --
Dallas June 29, 2010, pet. ref’d) (not designated for publication) (request
for instruction on possession under one gram did not preserve appellate
complaint that instruction on possession 1-4 grams was required).
II. Standard of Review -- Lesser-Included Offense Instruction
Reviewing courts employ a two-prong test to determine whether a
charge on a lesser-included offense was required. Hall v. State, 225 S.W.3d
524, 528 (Tex. Crim. App. 2007); Feldman v. State, 71 S.W.3d 738, 750
(Tex. Crim. App. 2002); see also Segundo v.. State, 270 S.W.3d 79, 90 (Tex.
Crim. App. 2008).
Under the first prong, the reviewing court determines whether the
offense is actually a lesser-included offense of the offense charged. Hall,
225 S.W.3d at 535 (is lesser-included offense included within the proof
necessary to establish the charged offense?); Feldman, 71 S.W.3d at 750.
27
This first prong is a question of law and does not depend upon the evidence
produced at trial. Wortham v. State, 412 S.W.3d 552, 555 (Tex. Crim. App.
2013); McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010)
(approving of functional-equivalence concept, which “requires courts to
‘examine the elements of the lesser offense and decide whether they are
functionally the same or less than those required to prove the charged
offense,’” quoting Farrakhan v. State, 247 S.W.3d 720, 722–23 (Tex. Crim.
App. 2008)).
Under the second prong, the reviewing court must determine whether
the record contains some evidence “from which a rational jury could acquit
the defendant of the greater offense while convicting him of the lesser-
included offense.” Segundo, 270 S.W.3d at 90-91. A lesser-included offense
instruction is not required solely because “the jury may disbelieve crucial
evidence pertaining to the greater offense, but rather, there must be some
evidence directly germane to the lesser-included offense for the finder of
fact to consider before an instruction on a lesser-included offense is
warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)
(citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). The
28
lesser-included offense must be a valid rational alternative to the charged
offense. Wortham, 412 S.W.3d at 557; Segundo, 270 S.W.3d at 91.
Judge Alcala’s concurrence in Goad points out that “[o]n a couple of
occasions, [the Court of Criminal Appeals has] explicitly described
appellate review of the second prong as abuse of discretion.” Goad v. State,
354 S.W.3d 443, 451 (Tex. Crim. App. 2011) (Alcala, J., concurring);
Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004) (holding in
capital murder case that “trial court did not abuse its discretion in
concluding that there was no evidence that would permit a jury rationally
to find that appellant” was guilty only of the lesser-included offense of
murder). And that “the amount of deference that an appellate court owes a
trial court under the abuse-of-discretion standard may be affected
depending on whether the evidence supporting the lesser-included offense
is direct evidence or indirect, circumstantial evidence.” Goad, 354 S.W.3d
at 451 (Alcala, J., concurring) (footnote omitted).
29
III. There was no affirmative evidence that Appellant possessed less
than four grams of methamphetamine, including any adulterants
and dilutants.
Appellant’s second issue concerns the application of the second prong
of the test for determining when a defendant is entitled to a lesser-included
offense instruction. This prong requires that the record contain some
evidence “that would permit a jury rationally to find that if the defendant
is guilty, he is guilty only of the lesser offense.” Skinner, 956 S.W.2d at 543
(emphasis in original); see also Rice v. State, 333 S.W.3d 140 145 (Tex.
Crim. App. 2011) (same). In applying this prong, the reviewing court must
examine the entire record instead of plucking certain evidence from the
record and examining it in a vacuum. Ramos v. State, 865 S.W.2d 463, 465
(Tex. Crim. App. 1993) (defendant charged with aggravated sexual assault
was not entitled to instruction on sexual assault as a lesser-included
offense: “[v]iewed in the context of the entire record, appellant's statement
that the victim resisted ‘like most girls’ failed to raise a fact issue on
whether she resisted”).
30
Appellant’s entire argument hinges on two characterizations of the
record:
 “[Chemist John Harris] said it is ‘possible’ that the substance
containing methamphetamine could be less than four grams. (RR. V
25, 30)”; and
 “[Chemist John Harris] also testified that he did not know how much
of the 23.78 grams is an adulterant or dilutant . . . . (RR. V-32-33).”
Appellant's br. at 8.
The State will show that there are at least two separate reasons why
Appellant’s argument lacks merit. First, Appellant reads the record out
context. All Mr. Harris actually testified to was that he lacked personal
knowledge of who was responsible for the creation of the material he
tested. That fact will be true in every case where an expert in drug testing
testifies. Second, even ignoring the context of Mr. Harris’s statements, the
comments Appellant relies on would still not require a lesser-included
offense instruction.
31
A. Appellant mischaracterizes Mr. Harris’s testimony by
presenting it out of context.
Appellant’s speculative argument relates to the matter of adulterants
and dilutants. See Appellant’s br. at 10. Adulterants and dilutants are
“any material that increases the bulk or quantity of a controlled substance,
regardless of its effect on the chemical activity of the controlled substance.”
TEX. HEALTH & SAFETY CODE § 481.002(49).
1. Chemist Harris clearly testified, as a matter of chemical
analysis, that there were over 23 grams of
methamphetamine, including any adulterants and
dilutants.
Chemist Harris testified that he removed the debris from SX-6 and
the remaining crystalline substance weighed 23.78 grams. RR. V-26, 32.30
The weight of the crystalline substance in SX-6 was 23.78 grams. RR. V-
26; SX-7 (chemist's report). There is no evidence that the police added any
30 The presence of debris in SX-6 was caused by Appellant’s attempt to
destroy evidence after he was arrested. SX-2 at 15:30-41-:45:46; RR. IV-41; see
also RR. IV-68 (evidence had been ground into floorboards of patrol car).
Investigator Bennett testified that the amount of material in SX-6 that he
collected from Appellant's shoes was “basically insignificant” in comparison to
the amount of methamphetamine that the investigator recovered from the rear
of the patrol car. RR. V-44-46; see also RR. IV-60 (investigator used a handcuff
key to gouge out crystalline substance from the grooves of Appellant's shoes);
RR. IV-96 (same); see generally RR. IV-95 (asphalt parking lot).
32
crystalline material to SX-6.31 There is also no evidence that any of the
crystalline material that was weighed was anything other than
methamphetamine, plus adulterants and dilutants.
Appellant’s wild speculation that as much as 19.78 grams of the
23.78 grams of crystalline substance might have been neither
methamphetamine nor adulterants and dilutants is not affirmative
evidence requiring a lesser-included offense instruction. See Hampton, 109
S.W.3d at 441 (holding trial court erred by including instruction on lesser-
included offense of sexual assault because complainant testified knife was
used during sexual assault and failure to find knife was not affirmative
evidence that no knife was used); Davis v. State, No. 09-03-521-CR, 2005
WL 1907011, at *1 (Tex.App. -- Beaumont Aug. 10, 2005, pet. ref’d) (mem.
op., not designated for publication) (lesser offenses of 1-4 and 4-200 grams
were not raised because there was no evidence that defendant had less
than 400 grams of methamphetamine); Ortega v. State, No. 11-99-00259-
CR, 2001 WL 34373377, at *2 (Tex.App. -- Eastland Sept. 27, 2001, no pet.)
31 The debris that was added to SX-6 -- and then removed, prior to weighing
(RR. V-20-21, 26) – was added by Appellant in his attempt to destroy evidence.
SX-2 at 15:30-41-:45:50; RR. V-44-50. Thus, the fanciful hypothetical that
Appellant concocted for Chemist Harris to answer had nothing to do with the
33
(not designated for publication) (chemist’s inability to state when electronic
scale was last re-calibrated did not raise the lesser-included offense of
possession of less than four grams of amphetamine).
2. The context of the testimony Appellant invokes is
Appellant's conflation of chemical analysis with historical
facts about the recovery of the drugs.
Chemist John Harris's statement(s) cannot be plucked out of the
record and considered in isolation and out of context. Ramos, 865 S.W.2d
at 465; Arnold, 234 S.W.3d at 671-72 (citing Godsey v. State, 719 S.W.2d
578, 584 (Tex. Crim. App. 1986)); cf. Hall v. State, 62 S.W.3d 918, 922
(Tex.App. -- Dallas 2001, pet. ref’d) (even though wife testified that
defendant had no prior convictions, in context, she meant no arrests during
her 21 years of marriage to defendant). At trial, Appellant suggested to
Chemist Harris that any material added to SX-6 by the police would not be
an adulterant or dilutant because it would not have been added-to the
seized drugs by the hypothetical defendant. RR. V-22-23. Chemist Harris
facts of the present case.
34
responded that -- assuming the police added non-drug material to a
hypothetical drug sample -- the best approach would be to do a purity
check. RR. V-23.32
Appellant concluded his cross-examination of Chemist Harris with a
series of confusing questions. RR. V-32-34. Even construing the answers
in a light favorable to Appellant, all Mr. Harris said was that he didn’t
know whether there was any material in the 23.78 grams of crystalline
substance that was neither methamphetamine nor an adulterant or
dilutant.
Presumably, Mr. Harris meant that he didn’t know whether there
was crystalline material that had been added by the police. The only other
interpretations of Mr. Harris’s answers are that: (1) he didn’t understand
the questions; or (2) he didn’t understand the definition of adulterants and
dilutants. See Seals v. State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005)
(“any substance that is added to or mixed with a controlled substance,
regardless of when, how, or why that substance was added, may be added
32 Presumably, Chemist Harris’s logic was that if it could be proven that
there was at least four grams of pure methamphetamine, it would be irrelevant
35
to the aggregate weight of the controlled substance as an adulterant or
dilutant.”).
In sum, the portions of Mr. Harris’s testimony that Appellant invokes
amount to nothing more that Mr. Harris acknowledging that he had no
knowledge of who was legally responsible for the material he tested. He
lacked this knowledge because he was not involved in the recovery of the
drugs.33 This is not evidence that Appellant possessed less than four grams
of methamphetamine plus adulterants and dilutants.
B. Even if Appellant’s out-of-context distortion of Mr. Harris’s
testimony were accepted, Appellant’s complaint would still lack
merit.
Even ignoring the fact that Mr. Harris was only acknowledging his
lack of personal knowledge about the source of the drugs that he tested,
Appellant’s reliance upon Mr. Harris’s comments would still lack merit.
“[T]here must be affirmative evidence to rebut the greater element, and the
jury may not simply disbelieve evidence establishing the greater.” Schmidt
how much non-drug material police added.
33 Appellant’s situation would be akin to a defendant claiming entitlement to
a TEX. CODE CRIM. PROC. art. 38.23 instruction on the basis of a chemist’s
testimony that he didn’t know whether the police legally seized the drugs.
36
v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009); see also Segundo,
270 S.W.3d at 90-91 (holding trial court properly denied lesser-included
offense instruction because evidence showed only that medical examiner
said it was possible for sperm to remain in person’s vaginal vault for up to
72 hours, but that evidence raised only theoretical possibility that rape and
murder could be disconnected in time and space, and no evidence in record
showed that victim's rape and murder were, in fact, disconnected based on
medical evidence that they occurred at same time).
Mr. Harris never testified that there was less than four grams of
methamphetamine plus adulterants and dilutants. Testimony from a
chemist that he doesn't know something is not affirmative and specific
testimony that a required threshold of drugs is lacking:
And, deciding that appellant was entitled to a
lesser-included offense instruction on delivery of
any amount of marijuana less than the amount
charged also would require plucking a single
statement from the chemist's cross-examination
testimony (“I can't tell you that I microscopically
examined every single sample from a hundred and
five bundles”) and examining it in a vacuum. Also,
plucking this portion of the chemist's cross-
examination testimony from the record and
examining it in a vacuum does not raise any fact
issue on whether appellant is guilty only of delivery
of more than 5 but less than 50 pounds of
37
marijuana. The only fact issue this cross-
examination testimony arguably raises is that the
chemist did not analyze a sample from an unknown
number of the bundles.”
Enriquez v. State, 21 S.W.3d 277, 279-80 (Tex. Crim. App. 2000).
Appellant's second issue is without merit and should be held waived
and/or overruled.
38
STATE'S RESPONSE TO APPELLANT’S ISSUE THREE
Trial Court’s Denial of Appellant’s (Oral) Motion to Suppress
In his third issue, Appellant makes some kind of constitutional and
statutory search and/or seizure complaint. Appellant's br. at 10-12
(arguing that “[t]he trial court erred when it denied Appellant’s motion to
suppress,” and citing RR. IV-31-37, 93-94; RR. V-73-74).34 By way of
34 On RR. IV-31-37, Sergeant Denison is testifying on direct examination
about what happened after the backup officers arrived at the scene of
Appellant’s arrest. Id. In his “Statement of Facts” for this issue, Appellant
discusses the cited portion of Sergeant Denison’s direct testimony. Appellant’s
brief at 10-11.
On RR. IV-93-94, Investigator Baker is being cross-examined about (1)
whether the police had obtained a search warrant prior to Appellant’s arrest; (2)
whether Investigator Baker asked Appellant for consent to search Appellant’s
person or property; (3) whether Investigator Baker was aware if anyone else
asked Appellant for consent; (4) whether when Investigator Baker approached
Appellant, Appellant’s shoes were on or off; (5) whether Investigator Baker
observed any other clothing being removed from Appellant at the scene of the
arrest; and (6) whether Investigator Baker participated in the recovery of
evidence. Id.
On RR. V-73-74, the trial court mentions that Appellant had “previously
made a motion to suppress at the beginning of the evidence,” and then states
that that motion is denied. Id.; see also RR. IV-31-32 (Defense counsel informs
the trial court that “we're going to be urging some objections on search and
seizure, illegal search and arrest in this case. Subject to those objections, we
have no other [objection] as to [the] form [of] this particular exhibit [SX-2].”).
As mentioned earlier, SX-2 is a DVD containing the redacted version of the
video that police collected from Sergeant Harvey’s patrol vehicle. RR. IV-31-32.
SX-2 was admitted for all purposes. Id.
SX-1 is the unredacted version of the same patrol car video. SX-1 was
admitted for purposes of the record only. RR. IV-30-31.
39
support, Appellant cites Mapp v. Ohio, 367 U.S. 643 (1961),35 and claims
violations of his rights under U.S. CONST. amends. I, IV, V, VI, IX, XIV,
TEX. CONST. art. I, §§ 9, 10, 19, and TEX. CODE CRIM. PROC. arts.
38.21, 38.22.36 Appellant’s br. at 12.
Initially, the State notes that Appellant has not argued his federal
and state claims separately. Under the circumstances, Appellant’s state
claims should be held waived. The State has no real idea what Appellant’s
specific complaint might be. If the State had to guess, Appellant’s
complaint may have something to do with the search of Appellant’s person
following Appellant’s arrest. See Appellant's br. at 11. The State believes
that Appellant's third issue should be summarily overruled as
inadequately briefed. Whatever the search complaint Appellant is
attempting to present on appeal, it was not properly preserved at trial. If
the Court decides that Appellant is challenging the search incident to
Appellant’s arrest, Appellant’s unchallenged arrest for driving without a
license entitled the police to search Appellant’s pockets.
35 No pinpoint cite/jump page for Mapp is provided. Appellant’s br. at 12.
36 Appellant also cites to Wong Sun v. United States, 371 U.S. 471 (1963), for
the general proposition that the fruits of an unlawful search and seizure should
also be suppressed. Appellant’s br. at 12. Again, no pinpoint cite/jump page for
40
I. Appellant’s state claims should be held waived.
Because Appellant does not argue his federal and state claims
separately, Appellant’s state claims should be held waived. DeBlanc v.
State, 799 S.W.2d 701, 706 (Tex. Crim. App. 1990). In Heitman, the Court
of Criminal Appeals explained that briefs claiming constitutional violations
under both the state and federal constitutions should provide argument,
analysis and authority supporting and explaining each separate claim of
constitutional violation. Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex.
Crim. App. 1991). “[B]riefs should show how constitutional protection
differs under the state constitution as opposed to the protection provided
by similar provisions in the federal constitution.” Arnold v. State, 873
S.W.2d 27, 33 n.4 (Tex. Crim. App. 1993) (emphasis added).
Nowhere in Appellant’s briefing does he argue that the protections
afforded under Texas law exceed or differ from the protections he enjoys
under the United States Constitution. See Appellant’s br. at 10-12.
Accordingly, the Court should only address Appellant's arguments under
the United States Constitution. Arnold, 873 S.W.2d at 33; Turner v. State,
886 S.W.2d 859, 864-65 (Tex.App. -- Beaumont 1994, pet. ref’d) (“Because
Wong Sun is provided. Appellant’s br. at 12.
41
appellant has failed to substantively indicate how his protection under the
Texas Constitution exceeds or differs from that provided to him by the
Federal Constitution, we will not address appellant's state constitutional
argument, citing Arnold, 873 S.W.2d at 33).
II. Appellant’s third issue should be found to have been forfeited on
appeal.
As mentioned earlier, the State has no real idea what Appellant’s
specific complaint might be other than it seems to involve the search of
Appellant’s person after Appellant was arrested following a traffic stop.
Appellant’s br. at 11 (citing to place in the reporter’s record where defense
counsel tells the trial court, “we're still going to be urging our motion to
suppress as to Exhibits 3 [the digital scale] and 4 [cell phone].”). As also
mentioned earlier, Appellant’s briefing cites Mapp and Wong Sun in
support of his third issue. See Appellant’s br. at 12.
Neither of these two cited cases, however, is applied. Neidholt, 2013
WL 841624, at *2 (“Neidholt cites one single case, but fails to explain how
it applies. In other words, Neidholt has not provided a ‘clear and concise
argument for the contentions made, with appropriate citations to
authorities,’” quoting TEX. R. APP. P. 38.1(i)). In failing to explain how
42
“the detention, intrusion, invasion, search of Appellant, as well as the
seizure and search of [unspecified] material and items therefrom violated
Appellant’s rights” under U.S. CONST. amends. I, IV, V, VI, IX and XIV,
TEX. CONST. art. I, §§ 9, 10, 19 and TEX. CODE CRIM. PROC. arts.
38.21, 38.22, Appellant’s br. at 12, Appellant’s briefing appears to be
inviting the Court to become Appellant's advocate and peruse the appellate
record for any possible search and seizure issues. Accordingly, the State
believes that Appellant's third issue should be summarily overruled as
inadequately briefed.
Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's
brief “contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.” TEX. R. APP. P.
38.1(i). “Rule 38 requires [a party] to provide [the appellate court] with
such discussion of the facts and the authorities relied upon as may be
requisite to maintain the point at issue.” Conrad v. Texas BAC Home Loan
Servicing, ___ S.W.3d ___, No. 07-12-00305-CV, 2014 WL 545726, at *3
(Tex.App. -- Amarillo Feb. 7, 2014, no pet.) (mem. op.) (quoting Tesoro
Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128
(Tex.App. -- Houston [1st Dist.] 2002, pet. denied)). “This is not done by
43
merely uttering brief conclusory statements, unsupported by legal
citations.” Tesoro Petroleum, 106 S.W.3d at 128.
“It is not sufficient that appellant raise only a general constitutional
doctrine in support of his request for relief.” Bell v. State, 90 S.W.3d 301,
305 (Tex. Crim. App. 2002). And the Court should not allow Appellant to
maneuver it into inventing arguments against controlling precedent.
In that light, the issue of whether the trial court was entitled to find
that there was sufficient evidence of reasonable suspicion for the traffic
stop should not be considered. TEX. R. APP. P. 38.1(i). Under the
circumstances, addressing a search and seizure issue would require the
Court to assume Appellant’s role of crafting an argument attacking the
trial court’s judgment. Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.App. --
Amarillo 2003, pet. denied) (“[A]s judges, we are to be neutral and
unbiased adjudicators of the dispute before us. Our being placed in the
position of conducting research to find authority supporting legal
propositions uttered by a litigant when the litigant has opted not to search
for same runs afoul of that ideal, however. Under that circumstance, we
are no longer unbiased, but rather become an advocate for the party.”);
Longoria v. State, No. 13-12-00226-CR, 2013 WL 5675913, at *4 (Tex.App.
44
-- Corpus Christi Oct. 17, 2013, no pet.) (mem. op., not designated for
publication).
III. Appellant’s present complaint was forfeited at trial.
There is no written motion to suppress in the Clerk’s Record. CR. I;
see also Appellant’s br. at 10 (acknowledging that “[t]here was no formal
written motion to suppress in this case”). During trial, Appellant alluded
to a motion to suppress, see RR. IV-36; RR. V-73, or an improper search,
see RR. IV-10, 31-32, but Appellant never voiced a specific objection. TEX.
R. APP. P. 33.1(a)(1)(A) (to preserve error for appellate review, complaint
must be made with “sufficient specificity” unless specific grounds are
apparent from context). Indeed, Appellant seemed to acknowledge that
there was no search and seizure because the State limited the evidence
that it presented. RR. V-66-67. But see RR. V-73 (requesting ruling on
motion to suppress).
IV. Appellant’s unchallenged arrest for driving without a license entitled
the police to search Appellant’s pockets as a search incident to arrest.
Appellant was arrested for driving without a license. RR. IV-22, 35,
82, 90; see also RR. IV-4-5 (defense counsel stipulated that Appellant did
45
not have a driver’s license). Appellant’s trial counsel agreed that Appellant
was driving the car at the time of the stop. RR. IV-9; SX-9 (“Stipulation of
Testimony”); RR. V-8-9 (stipulation read to jury). Appellant makes no
claim to this Court – nor did he object in the trial court – that he was not
properly arrested.
Police are entitled to search the person of an arrested person as a
search incident to arrest. Arizona v. Gant, 556 U.S. 332, 339, 129 S. Ct.
1710, 1716 (2009) (after arrest for driving without a license police could
search person of arrestee, but not his car). Appellant’s briefing makes no
claim that any physical evidence was obtained other than from Appellant’s
person. Appellant’s br. at 11.
After Appellant was arrested he was placed in the backseat of a
patrol car. RR. IV-35. A video camera in the patrol car then recorded
Appellant (RR. IV-38) as he removed methamphetamine from his person
and attempted to spread it around in and outside of the patrol car. SX-2
(DVD of patrol car video); SX-2 at 15:37:25-:45:50 (Appellant can be seen
and heard digging around the doorjamb of the patrol car;
spreading/rubbing/scraping/rustling/spitting sounds are also audible); RR.
IV-41-50; RR. V-44-48; SX-8 (torn plastic baggies recovered from floorboard
46
of patrol car); see also RR. V-50 (Investigator Bennet testified that the
baggies he recovered from the back of the patrol car were wet to touch and
“[p]art of the baggies still had white crystal substance in them”).
Appellant's third issue is without merit and should be held waived
and/or overruled.
47
CONCLUSION
Appellant's trial was without prejudicial error.
PRAYER
The State prays that Appellant's conviction be affirmed.
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
DEBRA WINDSOR, Assistant
Criminal District Attorney
Chief, Post-Conviction
/s/ ANNE SWENSON_______
ANNE SWENSON, Assistant
Criminal District Attorney
State Bar No. 19575500
401 W. Belknap Street
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
coaappellatealerts@tarrantcounty.com
CERTIFICATE OF COMPLIANCE
There are 9,605 words in the portions of the document covered by TEX. R.
APP. P. 9.4(i)(1).
/s/ ANNE SWENSON______
ANNE SWENSON, Assistant
Criminal District Attorney
48
CERTIFICATE OF SERVICE
A copy of the State’s Brief has been electronically sent to appellate counsel
for Appellant Jeremy David Lummus, Mr. Don Hass at
DHnotices@ballhase.com, on this the 21st day of September 2015.
/s/ ANNE SWENSON_______
ANNE SWENSON, Assistant
Criminal District Attorney
49