David Harrell v. State ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00342-CR
DAVID HARRELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Navarro County, Texas
Trial Court No. C36184
MEMORANDUM OPINION
Appellant David Harrell was indicted for the offense of possessing between four
and two hundred grams of methamphetamine with the intent to deliver. A jury convicted
Harrell of the lesser-included offense of possession of between four and two hundred
grams of methamphetamine. The trial court assessed punishment at fifteen years’
incarceration. Harrell challenges his conviction in three issues. We will affirm.
Background
Harrell was arrested after methamphetamine was discovered in the vehicle he was
driving. Officers began surveillance of Harrell after receiving a tip that the Jeep Harrell
was driving was involved in narcotics distribution. The officers requested that a marked
unit detain Harrell after the officers observed a dog kennel fly off the top of the Jeep while
Harrell was driving on Interstate 45. Harrell consented to a search of the Jeep, and officers
discovered approximately 5.85 grams of methamphetamine under the passenger seat.
Issues
Harrell raises the following issues:
(1) The evidence is insufficient to support his conviction because there was no
evidence presented to affirmatively link Harrell to the methamphetamine discovered in
the vehicle.
(2) The trial court erred in denying Harrell’s motion to suppress because the
officer’s detention of him was without reasonable suspicion or legal authority, in
violation of the Fourth Amendment to the United States Constitution and Article I,
Section 9 of the Texas Constitution.
(3) The trial court erred in admitting evidence from a narcotics officer that
possession of retail gift cards is an indicator of narcotics trafficking because there was no
clear and convincing evidence that the officer was an expert on the matter or that his
testimony regarding such a connection was reliable by clear and convincing evidence.
Harrell v. State Page 2
Discussion
1. Motion to Suppress. The basic facts are undisputed. A dog kennel fell off the
top of the Jeep Harrell was driving and landed at least partially in a lane of Interstate 45.
Officers conducting surveillance of the Jeep requested that a marked vehicle stop Harrell
for an “unsecured load.” Harrell specifically argues in his second issue that the officers
had no legal authority to detain him because they did not observe a traffic violation.
Harrell argues that the dog kennel falling off the top of the Jeep does not fit the definition
of an unsecured load under the Transportation Code. Harrell points to Section 725.003
which prohibits the transportation of a load of loose material without having it properly
secured. TEX. TRANSP. CODE ANN. § 725.003. A “load” under the Code is defined as a
“load of loose material.” Id. at § 725.001(1). “Loose material” is defined as “material that
can be blown or spilled from a vehicle because of movement or exposure to air, wind
currents, or other weather. The term includes dirt, sand, gravel, refuse, and wood chips
but excludes an agricultural product in its natural state.” Id. at § 725.001(2). The statute
further defines “refuse” as “trash, rubbish, garbage, or any other discarded material.” Id.
at § 725.001(4-a).
A trial court’s ruling on a motion to suppress is reviewed on appeal for an abuse
of discretion. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018) (footnoted
citation omitted).
We can sustain the trial court’s decision if we conclude that the decision is
correct under any applicable theory of law. A trial court’s ruling should be
reversed only if it is arbitrary, unreasonable, or outside the zone of
reasonable disagreement.
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Id. (footnoted citations and internal quotation marks omitted). We use a bifurcated
standard of review in evaluating the trial court’s ruling. Id.; see also Cole v. State, 490
S.W.3d 918, 922 (Tex. Crim. App. 2016).
First, we afford almost total deference to a trial judge’s determination of
historical facts. The judge is the sole trier of fact and judge of witnesses’
credibility and the weight to be given their testimony. When findings of
fact are not entered, we review the evidence in the light most favorable to
the judge’s ruling and assume the judge made implicit findings of fact that
support the ruling as the record supports those findings. Second, we
review a judge’s application of the law to the facts de novo. We will sustain
the judge’s ruling if the record reasonably supports that ruling and is
correct on any theory of law applicable to the case.
Cole, 490 S.W.3d at 922 (footnoted citations omitted); see also Weems v. State, 493 S.W.3d
574, 577 (Tex. Crim. App. 2016) (footnoted citations omitted). The trial court did not make
express findings of fact in this case.
The Fourth Amendment does not forbid all searches and seizures, just
unreasonable ones. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). A police
officer is generally justified in briefly detaining an individual on less than probable cause
for the purpose of investigating possible criminal behavior where the officer has a
reasonable suspicion that criminal activity is occurring. Terry v. Ohio, 392 U.S. 1, 22, 88
S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim.
App. 2000). A traffic stop is a seizure for Fourth Amendment purposes. See Davis v. State,
947 S.W.2d 240, 244-45 (Tex. Crim. App. 1997); Young v. State, 420 S.W.3d 139, 142 (Tex.
App.—Texarkana 2012, no pet.). An officer may make a warrantless traffic stop if he has
Harrell v. State Page 4
a reasonable suspicion that a traffic violation has occurred. See Jaganathan v. State, 479
S.W.3d 244, 247 (Tex. Crim. App. 2015). “Reasonable suspicion” exists if the officer can
point to specific, articulable facts that, when taken together with rational inferences from
those facts, “would lead him to reasonably conclude that a particular person actually is,
has been, or soon will be engaged in criminal activity.” Ford v. State, 158 S.W.3d 488, 492
(Tex. Crim. App. 2005) (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).
This standard is an objective one, disregarding the subjective intent of the officer and
“looks instead to whether there was an objectively justifiable basis for the detention.”
Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013); see also Hamal v. State, 390
S.W.3d 302, 306 (Tex. Crim. App. 2012). An officer must, however, have more than “a
mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress.”
Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010) (quoting Williams v. State, 621
S.W.2d 609, 612 (Tex. Crim. App. 1981)). In deciding whether an officer had reasonable
suspicion, we examine the facts that were available to the officer at the time of the
detention, considering the totality of the circumstances. Ford, 158 S.W.3d at 492-93; Davis,
947 S.W.2d at 243.
Proof of the actual commission of a traffic violation is not a prerequisite to
ascertaining the legality of a stop. Leming v. State, 493 S.W.3d 552, 561 (Tex. Crim. App.
2016) (citing Drago v. State, 553 S.W.2d 375, 377 (Tex. Crim. App. 1977)). Although
generally a traffic violation must occur in an arresting officer’s presence, an officer may
Harrell v. State Page 5
have reasonable suspicion to stop a vehicle if a traffic offense is committed in another
officer’s presence who forwards the information to the officer conducting the traffic stop.
See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (officer observed
defendant commit a traffic violation and radioed that information to other officers, giving
those officers probable cause to stop defendant’s vehicle). The fact that an officer made
a stop for a reason other than the occurrence of a specific traffic violation is irrelevant as
long as any traffic violation occurred that would have objectively justified the stop. State
v. Police, 377 S.W.3d 33, 36 (Tex. App.—Waco 2012, no pet.); Crittenden v. State, 899 S.W.2d
668, 674 (Tex. Crim. App. 1995).
Assuming without deciding that Harrell did not commit the offense of losing an
unsecured load, the dog crate falling off the top of the Jeep onto a lane of the interstate
would give any officer a reasonable suspicion to believe that other possible traffic
violations may have occurred, such as littering or illegal dumping (a violation of §
365.012(a) of the Health and Safety Code), obstructing a highway (a violation of § 42.03
of the Penal Code), or possibly transporting an animal in a cruel manner (a violation of §
42.092(b) of the Penal Code). TEX. HEALTH & SAFETY CODE ANN. § 365.012(a); TEX. PENAL
CODE ANN. §§ 42.03 and 42.092(b). The trial court did not abuse its discretion in denying
Harrell’s motion to suppress because the officers had a reasonable suspicion from the
facts that a traffic violation had occurred. We overrule Harrell’s second issue.
Harrell v. State Page 6
2. Sufficiency of the Evidence. In his first issue, Harrell asserts that the evidence
at trial was insufficient to support his conviction for possession of between four and two
hundred grams of methamphetamine because there was no evidence presented that
affirmatively linked him to the methamphetamine discovered in the Jeep.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
the appellate court to defer "to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
319. We may not re-weigh the evidence or substitute our judgment for that
of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007). The court conducting a sufficiency review must not engage in a
"divide and conquer" strategy but must consider the cumulative force of all
the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
about the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is supported
by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
resolved any conflicting inferences from the evidence in favor of the verdict,
and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). This is because the jurors are the exclusive judges of the
facts, the credibility of the witnesses, and the weight to be given to the
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so
long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
Harrell v. State Page 7
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to "the elements of the offense as
defined by the hypothetically correct jury charge for the case." Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that "accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried." Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
as authorized by the indictment" includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
To establish possession of methamphetamine, the State must prove that Harrell
exercised care, control, or management over the methamphetamine found in the Jeep and
that Harrell knew the substance was methamphetamine. See TEX. HEALTH & SAFETY CODE
ANN. § 481.002(38); Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011). The
evidence must show that Harrell’s connection with the drug was more than just
fortuitous, which is the “affirmative links” rule. Blackman, 350 S.W.3d at 594. In cases
where a defendant does not have exclusive possession of the place where the controlled
substance is discovered, additional facts beyond mere presence must link him to the
illegal substance. Tate v. State, 500 S.W.3d 410, 413-14 (Tex. Crim. App. 2016). Factors to
consider when determining whether the defendant had affirmative links to the narcotics
include:
(1) the defendant’s presence when a search is conducted; (2) whether the
contraband was in plain view; (3) the defendant’s proximity to and the
accessibility of the narcotic; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed
Harrell v. State Page 8
other contraband or narcotics when arrested; (6) whether the defendant
made incriminating statements when arrested; (7) whether the defendant
attempted to flee; (8) whether the defendant made furtive gestures; (9)
whether there was an odor of contraband; (10) whether other contraband
or drug paraphernalia were present; (11) whether the defendant owned or
had the right to possess the place where the drugs were found; (12) whether
the place where the drugs were found was enclosed; (13) whether the
defendant was found with a large amount of cash; and (14) whether the
conduct of the defendant indicated a consciousness of guilt.
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); see also Tate, 500 S.W.3d at
414. “It is . . . not the number of links that is dispositive, but rather the logical force of all
the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.
The evidence at trial established that the Navarro County Sheriff’s Office received
a tip that a black Jeep Cherokee was involved in the distribution of narcotics. Detective
Rickey Ragan and Lieutenant Clint Andrews, who were assigned to the narcotics and
criminal investigation unit, discovered the Jeep at the Super 8 Motel in Corsicana. Ragan
and Andrews began surveillance of the Jeep and watched it through binoculars for
approximately one hour. During that time, the officers saw a man, later identified as
Harrell, who appeared to be making repairs to the engine. The hood on the Jeep was up,
and the officers observed Harrell entering and exiting all areas of the interior of the Jeep.
Ragan testified that Harrell sat in both the driver’s seat and the passenger’s seat for
several minutes. Another man, later identified as Jerry Williamson, arrived and assisted
Harrell in getting the Jeep started. Williamson did not enter the Jeep other than to reach
through the driver’s window to turn the ignition. The officers observed no one else in or
Harrell v. State Page 9
around the Jeep. Once the Jeep was running, Harrell drove toward Interstate 45 with
Williamson following in a separate vehicle. When Harrell accelerated onto the interstate,
a dog kennel on top of the Jeep flew off and broke in two. One piece of the kennel landed
in a traffic lane. Williamson stopped and retrieved the kennel.
Ragan and Andrews, who were following the Jeep in an unmarked vehicle,
radioed dispatch and requested that a marked vehicle initiate a traffic stop of Harrell due
to a loose load. Deputy Kristopher Matthews responded and pulled in behind Harrell
who had already moved to the shoulder of the interstate preparing to stop. Ragan and
Andrews stopped behind Matthews, and Williamson stopped behind the officers.
Matthews requested that Harrell step out of the Jeep to talk as there was an aggressive
dog inside. Harrell provided Matthews with false identification, and Matthews
attempted to run the fake name and date of birth. Ragan and Andrews obtained consent
from Harrell to search the Jeep. While Ragan searched the driver’s side, Andrews
searched the passenger’s side. Andrews testified that he observed a baggie containing
what was later determined to be between five and six grams of methamphetamine at the
edge of the passenger seat between the seat and the door frame. Andrews noted that he
did not see the methamphetamine when he first looked inside the passenger
compartment, but it was readily visible when he stepped back and bent over. The
methamphetamine was not readily visible or accessible from the driver’s seat, but
Andrews noted that the methamphetamine could have landed where it was found after
Harrell v. State Page 10
being tossed from the driver’s seat. Harrell denied any knowledge of the
methamphetamine. The officers also discovered a large number of gift cards in the Jeep.
Andrews testified that in his training and experience, such gift cards were associated with
the distribution of narcotics. Ragan and Andrews also saw that there was luggage and
clothing in the back of the Jeep, and Harrell told them that he loaded all of that into the
Jeep.
Ragan testified that Harrell told him that the Jeep belonged to Joe Johnson, a
friend, and that Harrell had possession of the Jeep for three days. Harrell also told Ragan
that he got the Jeep running in order to return it to the home of Johnson’s parents.
Ragan testified that in his opinion as an expert in narcotics investigation that
Harrell was in possession of the methamphetamine discovered in the Jeep. Ragan did
not believe that the amount of methamphetamine was a distribution quantity. Ragan
further noted that Harrell did not appear to be under the influence of narcotics and that
Harrell was not in possession of any other narcotics or any type of narcotics
paraphernalia. Ragan further testified that Harrell did not attempt to flee or make any
furtive gestures and that Harrell had no large amounts of cash. However, Ragan also
stated that Harrell gave them a false name.
The affirmative links that connect Harrell to the methamphetamine beyond the
substance being found in the vehicle over which he had control were the following: (1)
Harrell was the sole occupant of the Jeep; (2) Harrell was the only individual who was
Harrell v. State Page 11
inside the interior of the Jeep while the officers were conducting surveillance; (3) the
methamphetamine was visible upon looking into the passenger compartment; (4) Harrell
lied to the officers about his identity; and (5) there were a large number of gift cards in
the Jeep which is equivalent to possession of a large sum of cash.
There was sufficient evidence, when viewed in the light most favorable to the
verdict, from which the jury could have found that Harrell possessed between four and
two hundred grams of methamphetamine. We overrule Harrell’s first issue.
3. Expert Testimony. In his third issue, Harrell argues that the trial court erred in
allowing Anderson to testify as an expert that possession of store gift cards is an indicator
of narcotics distribution. Harrell contends that Andrews did not possess sufficient
qualifications to be deemed an expert and his opinion was, therefore, not reliable.
Assuming without deciding that the trial court erred in permitting Andrews to
give his opinion regarding the gift cards, Harrell has failed to establish that he was
prejudiced by the ruling. See TEX. R. APP. P. 44.2(b) (“Any . . . error . . . that does not affect
substantial rights must be disregarded.”). Andrews’s testimony was relevant to
establishing a link between gift cards and narcotics distribution. As the jury found
Harrell not guilty of possessing methamphetamine with intent to distribute, the
testimony regarding the gift cards had little if any effect on the verdict.
Additionally, even if Andrews did not qualify as an expert under Rule 703, his
opinion was still admissible as a lay opinion under Rule 701. An appellate court reviews
a trial court’s ruling on the admission of evidence under an abuse-of-discretion standard.
Harrell v. State Page 12
Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). A trial court abuses its
discretion when it acts without reference to any guiding rules and principles or acts
arbitrarily or unreasonably. Id.; Powell v. State, 63 S.W.3d 435, 439-40 (Tex. Crim. App.
2001). If the trial court’s ruling on the admission of evidence is correct under any theory
of law, the trial court’s decision should not be disturbed, even if the trial court gives the
wrong reason for its ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
Both lay and expert witnesses can offer opinion testimony. Osbourn v. State, 92
S.W.3d 531, 535 (Tex. Crim. App. 2002); see also Davis v. State, 313 S.W.3d 317, 349 (Tex.
App. 2010). A witness can testify in the form of an opinion under Rule 701 if the opinion
or inferences (1) are rationally based on his perceptions and (2) are helpful to the clear
understanding of the testimony or the determination of a fact in issue. Osbourn, 92 S.W.3d
at 535. “Perceptions” refer to a witness’s interpretation of information through his or her
own senses or experiences at the time of the event (i.e., things the witness saw, heard,
smelled, touched, felt, or tasted). Davis, 313 S.W.3d at 349. The witness’s testimony can
include opinions, beliefs, or inferences as long as they are drawn from his or her own
experiences or observations. Id. As a general rule, observations that do not require
significant expertise to interpret and that are not based on a scientific theory can be
admitted as lay opinions if the requirements of Texas Rule of Evidence 701 are met. Id.
at 537. A witness may offer such an opinion even when he has experience or training.
Osbourn, 92 S.W.3d at 535. Events not normally encountered by most people in everyday
life do not necessarily require expert testimony. Id. The personal experience and
knowledge of a lay witness may establish that he or she is capable, without qualification
Harrell v. State Page 13
as an expert, of expressing an opinion on a subject outside the realm of common
knowledge. Id.
Andrews testified that he had nine years of experience as a narcotics detective. He
did not have specific training regarding the use of gift cards in narcotics trafficking, but
he was familiar with such behavior through his own experience and through sharing
such information with other narcotics investigators. While Andrews was unable to
specifically articulate all of the ways that gift cards could be used in the narcotics trade,
he had sufficient experience to know that gift cards are frequently associated with the
distribution of narcotics.
In this case, narcotics trafficking is outside the realm of common knowledge of
most jurors, and a police officer who has received narcotics training and has been
involved in numerous drug investigations in the course of his career, may testify that
certain behavior is consistent with the distribution of narcotics. See Atkinson v. State, 564
S.W.3d 907, 913 (Tex. App.—Texarkana 2018, no pet.) (narcotics officer permitted to give
his opinion as to whether defendant was distributing drugs); see also Crawford v. State, No.
07-11-0184-CR, 2013 WL 150283, at *3-4 (Tex. App.—Amarillo Jan. 14, 2013, pet. ref’d)
(mem. op., not designated for publication) (officer permitted to give opinion that quantity
of drugs constituted a distribution quantity). The trial court did not abuse its discretion
in permitting Andrews to offer his opinion that gift cards were often associated with the
distribution of narcotics. We overrule Harrell’s third issue.
Conclusion
Harrell v. State Page 14
Having overruled all of Harrell’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,*
Justice Davis, and
Justice Neill
*(Chief Justice Gray concurs in the Court’s judgment affirming the trial court’s
judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed June 5, 2019
Do not publish
[CR25]
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