Justin Amar Bell v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00119-CR
JUSTIN AMAR BELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2007-2046-C2
MEMORANDUM OPINION
A jury found Justin Bell guilty of possession of a controlled substance (under one
gram), and Bell was assessed a two-year prison sentence. Bell’s appellate counsel filed
an Anders brief presenting three potential issues that he determined are without merit.
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Although
informed of his right to do so, Bell did not file a pro se brief or response. The State did
not file a brief. We will affirm.
In an Anders case, we must, “after a full examination of all the proceedings, []
decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.
State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); see generally Villanueva v. State, 209
S.W.3d 239, 243-44 (Tex. App.—Waco 2006, no pet.). An appeal is “wholly frivolous” or
“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486
U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988). Arguments are
frivolous if they “cannot conceivably persuade the court.” Id. at 426, 108 S.Ct. at 1901.
An appeal is not frivolous if based on “arguable grounds.” Stafford, 813 S.W.2d at 511.
Appellate counsel first addresses whether the trial court abused its discretion in
denying Bell’s motion to suppress.
To suppress evidence on an alleged violation of Fourth
Amendment rights, the defendant bears the initial burden of producing
evidence that rebuts the presumption of proper police conduct. Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant satisfies
this burden by establishing that a search or seizure occurs without a
warrant. Id. Once the defendant makes this showing, the burden shifts to
the State, which must then establish that the search or seizure was
conducted with a warrant or was reasonable. Id.
Haas v. State, 172 S.W.3d 42, 49 (Tex. App.—Waco 2005, pet. ref’d).
A trial court’s denial of a motion to suppress is reviewed for abuse
of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). . . .
The trial court’s findings of fact are given “almost total deference,”
and in the absence of explicit findings, the appellate court assumes the
trial court made whatever appropriate implicit findings that are
supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.
Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex. Crim. App.
1997). However, the application of the relevant law to the facts, including
Fourth Amendment search and seizure law, is reviewed de novo.
Carmouche, 10 S.W.3d at 327. Also, when the facts are undisputed and we
are presented with a pure question of law, de novo review is proper. Oles,
993 S.W.2d at 106. Thus, for example, when the issue to be determined on
appeal is whether an officer had probable cause, “the trial judge is not in
Bell v. State Page 2
an appreciably better position than the reviewing court to make that
determination.” Guzman, 955 S.W.2d at 87. Therefore, although due
weight should be given to the inferences drawn by trial judges and law
enforcement officers, determinations of matters such as reasonable
suspicion and probable cause should be reviewed de novo on appeal. Id.
(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134
L. Ed. 2d 911 (1996)).
Davis v. State, 74 S.W.3d 90, 94-95 (Tex. App.—Waco 2002, no pet.).
A law enforcement officer may lawfully stop a motorist who
commits a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim.
App. 1992). In general, the decision to stop an automobile is reasonable
when an officer has probable cause to believe that a traffic violation has
occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); Wolf
v. State, 137 S.W.3d 797, 801 (Tex. App.—Waco 2004, no pet.); see also
Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d
89 (1996).
Haas, 175 S.W.3d at 49-50.
The evidence in the suppression hearing shows that a Waco police officer pulled
over a car in which Bell was a passenger at 3:10 a.m. in a high-crime area of Waco. The
officer testified that he pulled over the car because he could not read the license plate
because the license plate’s lightbulb was dangling on its wire and emitting its glare
outward so that the officer could not read the license plate from a fifty-foot distance.
Failure to have a light that illuminates the rear license plate and makes the plate clearly
legible at a distance of 50 feet from the rear is a traffic violation. See TEX. TRANSP. CODE
ANN. §§ 542.301(a), 547.322(f) (Vernon 1999).
The officer gave admittedly inconsistent testimony about when he was able to
read and run the plate number and whether he drove up or walked up to it to initially
read it, but he did consistently maintain that, because of dangling bulb, the plate was
Bell v. State Page 3
not legible from fifty feet. In a suppression hearing, the trial court is the sole trier of fact
and judge of the witnesses and the weight to be given their testimony, and may believe
or disbelieve all or any part of a witness’s testimony. Ross v. State, 32 S.W.3d 853, 855
(Tex. Crim. App. 2000). No findings of fact were requested or made, and in denying the
motion to suppress, the trial court impliedly believed the officer’s testimony about the
legibility of the license plate. We must view the evidence in the light most favorable to
the trial court’s ruling. Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
Accordingly, we agree with counsel that the trial court’s denial of the motion to
suppress at the suppression hearing or when it was reurged at trial is not an issue that
might arguably support an appeal.
Next, appellate counsel addresses whether the evidence is legally and factually
sufficient to support the conviction and concludes that it is sufficient. When reviewing
a challenge to the legal sufficiency of the evidence to establish the elements of a penal
offense, we must determine whether, after viewing all the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Adelman v. State, 828 S.W.2d 418, 422
(Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in favor of the
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we ask whether a neutral review of all the
evidence, though legally sufficient, demonstrates either that the proof of guilt is so
weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly
Bell v. State Page 4
wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.
2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the
evidence weighed by the jury that tends to prove the existence of the elemental fact in
dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23
S.W.3d at 7.
The State was required to prove beyond a reasonable doubt that Bell knowingly
or intentionally possessed a controlled substance (here, crack cocaine) in an amount of
less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Vernon 2003). The
Court of Criminal Appeals has provided the following explanation for the “so-called
‘affirmative links’ rule”:
[I]n a possession of a controlled substance prosecution, “the State must
prove that: (1) the accused exercised control, management, or care over
the substance; and (2) the accused knew the matter possessed was
contraband.” Regardless of whether the evidence is direct or
circumstantial, it must establish that the defendant’s connection with the
drug was more than fortuitous. This is the so-called “affirmative links”
rule which protects the innocent bystander—a relative, friend, or even
stranger to the actual possessor—from conviction merely because of his
fortuitous proximity to someone else’s drugs. Mere presence at the
location where drugs are found is thus insufficient, by itself, to establish
actual care, custody, or control of those drugs. However, presence or
proximity, when combined with other evidence, either direct or
circumstantial (e.g., “links”), may well be sufficient to establish that
element beyond a reasonable doubt. It is, as the court of appeals correctly
noted, not the number of links that is dispositive, but rather the logical
force of all of the evidence, direct and circumstantial.
Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (quoting Evans v. State, 185
S.W.3d 30, 34 (Tex. App.—San Antonio 2005)) (footnotes omitted). Thus, there must be
direct or circumstantial evidence establishing that Bell exercised control, management,
Bell v. State Page 5
or care over the controlled substance and knew it was contraband. See id.
The evidence showed that after the officer had pulled over the car, he discovered
that an arrest warrant had been issued for Bell. The officer handcuffed Bell and then
saw Bell reach into his pocket, pull out a small plastic bag, and drop it. Field-testing
and lab testing showed the substance in the bag to be cocaine. We agree with counsel
that sufficiency of the evidence is not an issue that might arguably support an appeal.1
Bell’s counsel last addresses whether two testimonial references by the officer to
Bell’s prior hearing for revocation of community supervision (in which the officer
appears to have given testimony on the offense before us) caused reversible error. On
each occasion Bell’s trial counsel objected and asked the trial court to instruct the jury to
disregard the officer’s statement. The trial court gave the instruction to disregard both
times but denied the follow-up mistrial requests.
[T]he question of whether a mistrial should have been granted involves
most, if not all, of the same considerations that attend a harm analysis. 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.” In effect, the trial court conducts an appellate
function: determining whether improper conduct is so harmful that the
case must be redone. Of course, the harm analysis is conducted in light of
the trial court’s curative instruction. Only in extreme circumstances,
where the prejudice is incurable, will a mistrial be required.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); see also Archie v. State, 221
S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Thus, the appropriate test for evaluating
whether the trial court abused its discretion in overruling a motion for mistrial is a
1Bell’s counsel also concludes that, if any error occurred during voir dire, no harm can be shown. We
agree.
Bell v. State Page 6
tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60
(Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. Those factors are: (1) the
prejudicial effect, (2) curative measures, and (3) the certainty of conviction absent the
misconduct. Id.; see Mosley, 983 S.W.2d at 259.
In this case, the evidence of guilt was strong, and the two references to the
revocation hearing appear to have been inadvertently made and were not so prejudicial
that continuation of the trial would be a waste of time and expense and ultimately
futile. Moreover, such references were curable by an instruction to the jury to
disregard. Accordingly, we agree with counsel that the trial court’s mistrial denials are
not an issue that might arguably support an appeal.
We have also conducted an independent review of the record, and because we
find this appeal to be wholly frivolous, we affirm the judgment. Counsel must send
Bell a copy of our decision by certified mail, return receipt requested, at Bell’s last
known address. TEX. R. APP. P. 48.4. Counsel must also notify Bell of his right to file a
pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-
74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s motion to
withdraw, effective upon counsel’s compliance with the aforementioned notification
requirement as evidenced by “a letter [to this Court] certifying his compliance.” See
TEX. R. APP. P. 48.4.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Bell v. State Page 7
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the judgment of the court to the extent it affirms
the judgment of the trial court. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed December 9, 2009
Do not publish
[CR25]
Bell v. State Page 8