Gary Rene Smith Jr. v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00302-CR
_______________________
GARY RENE SMITH JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 1A District Court
Jasper County, Texas
Trial Cause No. 12880JD
MEMORANDUM OPINION
Smith was indicted on August 31, 2016, for the offense of delivery of a
controlled substance by constructive transfer for conduct occurring on or about
March 10, 2015. A jury trial was held in May of 2017, but the jury was unable to
return a verdict. The matter was retried to a jury in July of 2017, and the jury found
Smith guilty of delivery of a controlled substance, namely methamphetamine, in an
amount of four grams or more but less than 200 grams. See Tex. Health & Safety
1
Code Ann. § 481.112(d) (West 2017). 1 The jury assessed punishment at seventy
years’ imprisonment. In two issues, Smith challenges the admission of evidence at
trial and the sufficiency of the evidence to support his conviction. We affirm.
Evidence at Trial
Testimony of Marie Prince
Marie Prince, a senior forensic chemist with the Drug Enforcement
Administration (DEA) in Dallas, testified that she received State’s Exhibits 1 and 2
on July 12, 2016, at the Dallas DEA lab. Prince identified Exhibit 1, a bag with a
substance therein, and Exhibit 2, fingerprint evidence. Prince testified that she
conducted presumptive testing as well as further scientific analysis on the contents
of State’s Exhibit 1, and Prince identified State’s Exhibit 3 as the report she
generated pursuant to her analysis. According to Prince, her report identified the
substance in State’s Exhibit 1 as methamphetamine hydrochloride and dimethyl
sulfone, with a net weight of 6.25 grams, and purity of about 95 percent. State’s
Exhibit 3, titled “Chemical Analysis Report,” was admitted into evidence.
1
We cite the current statutes herein as subsequent amendments do not affect
our disposition.
2
Testimony of Alfred Spikes
Alfred Spikes, a detective with the narcotics division of the Beaumont Police
Department, testified that he assisted the DEA and Jasper Police Department with a
controlled buy in Jasper on March 10, 2015. Spikes agreed that he was told the
controlled buy was to occur at a Shell station on the north side of town and he was
given a description of the vehicle he was to look for. According to Spikes, when he
arrived at the Shell station, he saw a white female sitting on the driver’s side of a
vehicle meeting the description he had been given. Spikes testified that he observed
a black male exit the store and walk toward the same vehicle and get in on the
passenger’s side. Spikes explained that after a few moments, the vehicle left, and he
followed it to a trailer house about half a mile away. Spikes testified he then saw the
defendant get out of the vehicle and Spikes left the area shortly thereafter because
there were people standing outside and Spikes did not want his vehicle to be seen.
Testimony of Joshua Hadnot
Joshua Hadnot testified that he is a detective with the Jasper Police
Department, and he recalled speaking with a confidential informant (CI). According
to Hadnot, once a CI has completed work with the police department, Hadnot does
not make any promises or guarantees regarding any pending case the CI might have.
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Hadnot testified that he asked the DEA to become involved with a controlled
buy in March of 2015 because the Jasper Police Department did not have adequate
funds to complete the transaction. According to Hadnot, he went to the prearranged
meeting place along with Officer Neal, and DEA agents as well as the CI were
present. Hadnot agreed that prior to the controlled buy, the CI and her vehicle were
searched for contraband, and none was found. Hadnot testified that the CI was
outfitted with a camera and given money for the controlled buy. Hadnot agreed that
the officers were able to listen to the CI’s end of her phone conversations.
According to Hadnot, the CI went alone to a Shell station for the controlled
buy as she was advised to do. Hadnot and Officer Neal followed her, and they parked
on the other side of the highway. Hadnot observed the CI enter the store at the gas
station. Hadnot agreed that prior to the controlled buy, he was familiar with Smith
and his appearance and he was able to identify Smith when he approached the store
at the gas station that day. According to Hadnot, he and Officer Neal observed the
CI’s vehicle pull away. Hadnot testified that he and Officer Neal then went to a
prearranged meeting place where officers searched the CI and her vehicle again.
Hadnot agreed that he was present when the CI turned over a “black ball” to the
DEA along with “change from the $600 she was provided earlier[]” and he was
present when the camera was recovered from her. Hadnot believed that the DEA
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took the suspected controlled substance, the “black ball,” with them. According to
Hadnot, about two weeks after the controlled buy, officers could no longer get in
touch with the CI and he subsequently learned that the CI had violated the terms of
her probation.
Hadnot agreed that he watched the video of the controlled buy after the fact.
State’s Exhibits 5 through 9 were entered into evidence, and Hadnot identified them
as photographs of Smith taken from the video of the controlled buy.
Testimony of DEA Agent
A special agent (“the Agent”) with the DEA in Beaumont, testified that she
has worked “at least hundreds[]” of controlled buys. She agreed that she received
information about the defendant from a confidential source in February of 2015 and
that Detective Hadnot brought the CI to the Agent’s office. According to the Agent,
no one with the DEA made any promises to the CI.
The Agent agreed that a controlled buy was set up for March 10, 2015, in
Jasper County. The Agent testified that she and Phillip Smith, a special agent with
the Beaumont Police Department assigned to the DEA, Joshua Hadnot, Jimmy Neal,
and Alfred Spikes were on the surveillance team. The objective of the controlled buy
was a purchase of one-half an ounce (or about fourteen grams) of methamphetamine.
The Agent agreed she conducted a search of the CI prior to the controlled buy and
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found no contraband. The Agent then provided the CI with $600 in buy money.
According to the Agent, one of the officers set the CI up a discreet camera and set
up an app on the CI’s phone so the officers could listen in real time.
The Agent testified that the controlled buy took place in Jasper at a Shell
station on Highway 96. The officers followed the CI to the area and parked across
the street from the Shell station. The Agent testified that she heard a report on the
radio about a black male wearing black shorts and a black and gray striped hoodie
and then she observed a person matching this description walking towards the gas
station, and then enter the store, and exit the store. According to the Agent, she
observed the man go to the passenger’s side of the CI’s vehicle after he left the store,
and she observed the man as he and the CI sat in her vehicle for a few minutes, and
then they left the area. The Agent agreed she saw Detective Spikes follow the CI’s
vehicle, and she explained that she heard on the radio that the CI had driven to a
residence on Bowie Street and that Spikes had an eye on the CI’s vehicle. The Agent
testified that she went to the address on Bowie Street and then met the CI and other
officers at “the meet location.”
According to the Agent, she searched the CI again and the CI’s vehicle was
also searched, and the CI turned over $300 and a black plastic ball to her, which the
Agent placed into a drug evidence bag and transported to the DEA office in
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Beaumont for processing. The Agent also agreed that the officers recovered the
camera from the CI.
State’s Exhibits 10 through 13 were admitted into evidence. The Agent
identified the exhibits as accurate photos of the substance recovered, and the photos
were taken in her office. The Agent visually identified the substance depicted as
methamphetamine and indicated that it tested positive for methamphetamine.
According to the Agent, the combined weight of the substance and the black plastic
packaging was 7.2 grams. The Agent testified that she packaged the substance and
sent it to the lab in Dallas, and she identified State’s Exhibit 1 as the material she
bagged and sent to Dallas.
Testimony of the CI
The CI testified that, at the time of trial, she was confined in the Jasper County
Jail for violating the terms of her community supervision and that she had a prior
conviction for possession of a controlled substance. The CI agreed that she met with
Hadnot and the Agent and entered into an agreement to be a CI. The CI also agreed
that she brought up the defendant’s name when she agreed to be a CI “[b]ecause
[she] knew that he was very well-known around and he was distributing a lot of
methamphetamine in the area.” The CI testified that she was not promised anything
for her work as a CI by Hadnot, the Agent, or anyone with the DEA.
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According to the CI, through phone contact, she had set up with Smith to
purchase one ounce of methamphetamine for $600. The CI agreed that she met with
Hadnot, the Agent, Neal, and some DEA officers at a prearranged meeting location
on March 10, 2015, where she and her vehicle were searched for contraband and the
Agent gave her $600 in buy money. The CI also agreed that the officers set her up
with a camera. The CI testified that, after this initial meeting, she drove to a
convenience store at a Shell station on Highway 96 by herself, but that some of the
officers followed her to the area. The CI identified the defendant as Smith.
The CI testified that she went into the store to buy a beverage and cigarettes
and then returned to her vehicle. According to the CI, after a time, Smith approached
her vehicle and got into the vehicle. The CI testified that she and Smith drove to a
residence on Bowie Street, where they sat and talked for a few minutes. The CI
explained that “[t]here was never a hand-to-hand transaction[,]” but rather she left
money for Smith in the cupholder, and Smith left the drugs in the cupholder before
he got out of her vehicle.
According to the CI, after Smith exited her vehicle, she met Hadnot and DEA
agents north of town, and she told the officers that the drugs were in her vehicle. The
CI testified that the Agent searched her and the other officers recovered the drugs
and searched her vehicle and purse. The CI also explained that the officers recovered
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the camera as well as the “$300 change[.]” The CI agreed that she understood that
everything was being audio and video recorded.
State Exhibits 14 and 15 were admitted into evidence and played for the jury.
The CI agreed that she had watched the video clips in State’s Exhibit 14. The CI also
agreed that in the recording, Smith says he has seven grams, or a quarter of an ounce,
and that she asks “$300 for 7 grams?” The CI agreed that just before Smith got out
of her vehicle, he left the black ball and $300 in change in the cupholder. The CI
also agreed that State’s Exhibit 16, a screenshot from the video recording, depicted
“the ball right there beside the cigarette pack[]” as well as the $300 behind the
cigarettes. According to the CI, the recording depicts her as telling Smith “Just holler
at me when you’re ready, when you’re good again . . . I’m going to try to flip it like
this” and Smith responds, “It’ll be in a couple of hours[.]”
The State rested, and the defense rested without calling any witnesses. The
jury found Smith guilty and assessed punishment at seventy years’ imprisonment.
Smith timely appealed.
Admission of Evidence of Extraneous Offense
In his first issue, Appellant argues that the trial court erred in admitting
evidence of extraneous offenses and a prior conviction, namely video evidence of
what occurred in the CI’s vehicle. According to the Appellant, the State failed to
9
prove beyond a reasonable doubt that Appellant “actually committed” the alleged
extraneous offenses, and the probative value of admitting evidence of extraneous
offenses and a prior conviction was outweighed by the danger of unfair prejudice,
confusion of the issues, and clearly misled the jury. Appellant further argues that the
audio portion of the recording did not relate to a drug transaction but did relate to
“their stints within the federal prison system.”
Prior to opening arguments, and outside the presence of the jury, the State
advised the Court that it intended to use four video exhibits used in the first trial.
The prosecutor explained that video exhibits 2 and 3 “had some problems with some
extraneous offense stuff[]” and that exhibit 3 “was previously edited, [and] sounds
good.” The prosecutor also explained that there was not time to edit video exhibit 2,
but that he had identified the point in the video clip “where this conversation starts
about extraneous stuff” and proposed “just to go to that point” instead of editing the
video. When the trial court asked whether the defense was agreeable, defense
counsel responded, “Yeah. I just need to look at it, the exact times.”
During trial, but outside the presence of the jury, the State again explained to
the court that video exhibit 2 included references to extraneous offenses and “it’s
probably something that . . . shouldn’t be put in front of the jury.” The State told the
court it intended to play video exhibit 2 and proposed turning off the sound during
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the portion of the video that included references to extraneous offenses. During trial,
the following exchange occurred outside the presence of the jury:
[State’s counsel]: Your Honor, when the jury comes back in, I believe
we’re going to be playing -- and this would be Video 2 on that disc and
we talked about this earlier and there’s some issue with some
conversation regarding some extraneous acts and offenses and Daniel
and I just went back and listened to it again and it’s really hard to pick
up the conversation but there are some things in there that could be seen
or heard as incriminating against the Defendant. So to sort of split the
difference, what we’re going to do is play that one and then stop it at
11:56:40, which I believe starts all this potential talk about extraneous
acts.
THE COURT: Okay. So that sounds good. And your objection?
[Defense counsel]: Still objection to that video being played as is and
not the one we used in the original proceeding -- or previous
proceeding.
THE COURT: Do you have a reasoning for that?
[Defense counsel]: Well, without looking -- reviewing the video and
the time exact one, so I can’t -- I don’t remember exactly where that
stop point is but, of course, my -- my position is, you know, anything
that would be any extraneous offenses or anything -- anything that --
because like my previous argument, I believe that conversation was too
convoluted to really decipher out or divide it out. So that’s why I was
asking that we use the previous video one that was redacted.
THE COURT: Okay.
...
You want to listen to it?
[Defense counsel]: Yeah.
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THE COURT: Go ahead.
Won’t take but just a few seconds, would it?
[State’s counsel]: I think it’s about eight minutes there if he listens to
the whole thing.
....
THE COURT: Were you able to listen to that?
[Defense counsel]: I did, Judge. I listened to what he was talking about,
and I don’t have a problem with them doing it that way.
THE COURT: Okay. All right. Just want to make sure.
The video exhibits were admitted as State’s Exhibits 14 and 15 and were published
to the jury.
Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint
for appellate review, the record must show that the party “stated the grounds for the
ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint[.]” Tex. R. App. P.
33.1(a)(1)(A); see also Tex. R. Evid. 103; Reyna v. State, 168 S.W.3d 173, 177 (Tex.
Crim. App. 2005). To determine preservation of error under Rule 33.1, the issue is
whether the “complaining party on appeal brought to the trial court’s attention the
very complaint that party is now making on appeal.” Martinez v. State, 91 S.W.3d
331, 336 (Tex. Crim. App. 2002) (citing State v. Mercado, 972 S.W.2d 75, 78 (Tex.
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Crim. App. 1998)); see also Reyna, 168 S.W.3d at 177. “To preserve error regarding
the admission of evidence, a defendant must lodge a timely and specific objection.
The purpose of requiring the objection is to give to the trial court or the opposing
party the opportunity to correct the error or remove the basis for the objection.”
Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000).
According to the record in this case, although the defense initially objected to
the admission of the video exhibits because of references to extraneous offenses,
ultimately the defense agreed to the admission and publication of the video
recordings after the State agreed to stop the audio portion of the video when it
pertained to any discussion about extraneous offenses. We are unable to find any
further objection by the defense in the appellate record concerning the video exhibits
as they were played to the jury. Additionally, there is nothing in our record that states
what portion of the audio was played or muted during playback. Appellant has not
cited to any other portion of the appellate record where such discussion occurred.
See Tex. R. App. P. 38.1(i) (an appellate argument must be supported by references
to the record). Based upon the record before us, it appears that the State agreed to
stop or turn down the audio during the playback when references to extraneous
offenses were discussed, and the defense made no objection during the publication
of the video exhibits to the jury. Although our record is silent regarding whether
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some discussion about Appellant’s extraneous offenses was played during the video
playback, even were we to assume that the State failed to mute such discussion,
Appellant waived error as to the admission of this evidence by agreeing to allow the
State to use the video and then not objecting at the time of actual playback. See
Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (“[E]rror regarding
improperly admitted evidence is waived if that same evidence is brought in later by
the defendant or by the State without objection.”).
Furthermore, the record does not reflect that the defense ever made any
objection at trial to the video evidence based on Rule 403. Therefore, Appellant
failed to preserve any error on his Rule 403 objection, and we need not address it.
See Tex. R. App. P. 33.1(a); Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim.
App. 2010) (citing Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009)). We
overrule Appellant’s first issue.
Sufficiency of the Evidence
Appellant’s second issue argues that the evidence is legally insufficient to
support his conviction. According to Appellant, “there must be evidence to
corroborate the testimony of the confidential informant.” Appellant argues that the
audio and video evidence in this case does not show a drug transaction and there was
no other testimony about what occurred inside the CI’s vehicle. Appellant’s brief
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argues that without evidence to corroborate the CI’s testimony, there is insufficient
evidence to prove each element of delivery of a controlled substance.
In reviewing the legal and factual sufficiency of the evidence to determine
whether the State proved the elements of the offense beyond a reasonable doubt, we
apply the Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894-95,
912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Under that standard, a reviewing court must consider all the evidence in the light
most favorable to the verdict and determine whether a rational justification exists for
the jury’s finding of guilt beyond a reasonable doubt. Id. at 902; see also Jackson,
443 U.S. at 319. “A jury may accept one version of the facts and reject another, and
it may reject any part of a witness’s testimony.” Febus v. State, 542 S.W.3d 568, 572
(Tex. Crim. App. 2018). As the trier of fact, the jury is the sole judge of the weight
and credibility of the witnesses’ testimony, and on appeal we must give deference to
the jury’s determinations. Brooks, 323 S.W.3d at 899, 905-06. If the record contains
conflicting inferences, we must presume the jury resolved such facts in favor of the
verdict and defer to that resolution. Id. at 899 n.13 (citing Jackson, 443 U.S. at 319).
On appeal, we serve only to ensure the jury reached a rational verdict, and we may
not substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556,
562 (Tex. Crim. App. 2000). In our review, we consider both direct and
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circumstantial evidence and all reasonable inferences that may be drawn from the
evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Article 38.141 of the Code of Criminal Procedure provides that
[a] defendant may not be convicted of an offense under Chapter 481,
Health and Safety Code, on the testimony of a person who is not a
licensed peace officer or a special investigator but who is acting
covertly on behalf of a law enforcement agency or under the color of
law enforcement unless the testimony is corroborated by other evidence
tending to connect the defendant with the offense committed.
Tex. Code Crim. Proc. Ann. art. 38.141(a) (West 2005). To measure the sufficiency
of the corroborating evidence, we eliminate the accomplice evidence from the record
and determine whether any of the remaining evidence tends to connect the defendant
to the offense. See Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
In applying this standard, we view the evidence in the light most favorable to the
jury’s verdict. See Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008). We
consider the combined weight of the non-informant evidence, even if that evidence
is entirely circumstantial. See Padilla v. State, 462 S.W.3d 117, 126 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d) (citing Saunders v. State, 817 S.W.2d 688, 692
(Tex. Crim. App. 1991)); see also Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim.
App. 2013) (“A criminal conviction may be based on circumstantial evidence.”).
The corroborating evidence does not need to be sufficient by itself to establish that
16
the accused is guilty beyond a reasonable doubt. Smith v. State, 392 S.W.3d 190,
195 (Tex. App.—San Antonio 2012, pet. ref’d).
Likewise, the corroborating evidence need not directly link the accused to the
offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007).
Circumstances that appear insignificant may constitute sufficient evidence of
corroboration. Malone, 253 S.W.3d at 257. Though “mere presence” is insufficient
corroboration, evidence that the accused was at or near the scene when or about
when it was committed may sufficiently tend to connect the accused to the crime,
provided the evidence is “coupled with other suspicious circumstances[.]” Id. at 257.
Corroboration does not require a set quantum of proof. Id. The single requirement is
that “some” non-informant evidence, on which rational jurors could properly rely,
tends to connect the accused to the commission of the offense. Id. at 257-58.
Appellant argues that “[t]he video evidence does not show any transaction
occurring between Appellant and the confidential informant and also the audio
portion of the video does not capture any conversation of a drug transaction.” We
disagree. In the video, the CI is heard to say to Smith “3 for 7?” and that she intended
to “flip” the drugs quickly. State’s Exhibit 16 is described as a picture of the “ball”
and the $300 in change. Spikes, Hadnot, and the Agent testified that they searched
the CI and her vehicle before the controlled buy as well as afterwards, that they
17
observed Smith in the CI’s vehicle, and that they searched the CI and her vehicle
again afterwards and found the black ball of methamphetamine and $300. State’s
Exhibit 3 identified the ball of drugs as methamphetamine. Upon considering all the
evidence, a rational jury could have concluded that the video evidence and witness
testimony corroborated the CI’s testimony and tended to connect Smith to the
commission of the offense charged. See id.
Viewing all the evidence in this case in the light most favorable to the verdict,
we conclude that a rational jury could have found beyond a reasonable doubt—from
the evidence presented and reasonable inferences therefrom—that Appellant
delivered a controlled substance as alleged in the indictment. Accordingly, we
overrule Appellant’s second issue and we affirm the trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on March 4, 2019
Opinion Delivered March 20, 2019
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
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