Vicki Largent Minze A/K/A Vicki Hackney Minze A/K/A Vicki Hackney Largent A/K/A Vicki Hackney v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-129-CR
VICKI LARGENT MINZE A/K/A APPELLANT
VICKI HACKNEY MINZE A/K/A
VICKI HACKNEY LARGENT A/K/A
VICKI HACKNEY
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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In three points, appellant Vicky Largent Minze a/k/a Vicki Hackney Minze
a/k/a Vicki Hackney Largent a/k/a Vicki Hackney (hereinafter “Minze”) appeals
her second-degree felony conviction for possessing between four and two
hundred grams of methamphetamine. 2 We affirm.
1
 See Tex. R. App. P. 47.4.
2
 See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(d) (Vernon
Supp. 2009).
Background Facts
At around two o’clock one morning in January 2007, Kathleen Pierce, an
employee at Wal-Mart in Azle, was in the store’s lingerie department when she
saw Minze, who was “acting really paranoid.” Minze was wearing a short skirt
and a low-cut shirt, and she was riding in an electric scooter. Minze stood up
from the scooter to reach a rack of clothes, and when she did so, something
fell to the ground. While maintaining eye contact with Minze (who did not
notice that the item had dropped to the ground), Pierce went to a spill station
pole and grabbed an absorbent pad. 3 After Minze left the immediate area,
Pierce picked up the item, which looked to Pierce like a rubber glove “with
white stuff all over it.”
Pierce called her manager, Tanika Jordan. Jordan looked at the item,
took it to the front of the store, and called the Azle police department. Corporal
Michael Winterrowd took the item, noticed that it contained “a visible amount
of light colored crystals,” and put it in his pocket. Jordan and Pierce then
directed another Azle police officer, David Poe, to Minze, who began screaming
and cursing. The officers gave Minze a disorderly conduct citation and a
3
 Pierce said, “I was watching [Minze] as I went to the pole and got [the
absorbent pad].” Minze argues in her brief that Pierce left the item that
dropped to the ground unattended, but the record does not establish that the
item was ever outside of Pierce’s sight.
2
criminal trespass warning, and they escorted her away from the store. They
took a statement from Pierce, but they did not immediately arrest Minze.
At the police station later that morning, the contents of the item tested
positive for a controlled substance. Several months later, the police sent the
item to a lab for testing, and a chemist confirmed that the item contained 6.58
grams of methamphetamine.
In January 2008, a Parker County grand jury indicted Minze for
possessing methamphetamine. At trial, Minze pled not guilty, but the jury
found her guilty. After the trial court heard evidence about Minze’s criminal
history and listened to testimony from Minze’s mother, it sentenced Minze to
fifteen years’ confinement. Minze filed her notice of this appeal.
Legal Sufficiency
In her first point, Minze contends that the evidence is legally insufficient
to support her conviction. In reviewing the legal sufficiency of the evidence to
support a conviction, we view all of the evidence in the light most favorable to
the prosecution in order to determine whether 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, 2789 (1979); Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives
full play to the responsibility of the trier of fact to resolve conflicts in the
3
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct.
2075 (2009). Thus, when performing a legal sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we
“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
Crim. App. 2007). We must presume that the factfinder resolved any
conflicting inferences in favor of the prosecution and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
Minze first asserts that the evidence is insufficient to sustain her
conviction because (1) neither Pierce nor Jordan identified the State’s exhibit
that contained methamphetamine as the same item that Pierce saw drop from
Minze and (2) Pierce’s and Jordan’s description of the item differed from
4
Corporal Winterrowd’s description. She therefore argues that the trial court
erred on relevancy grounds by admitting the methamphetamine exhibit because
the State did not show a sufficient nexus between her and the drugs.
Evidence is relevant if it has any tendency to make the existence of any
consequential fact more or less probable than it would be without the evidence.
Tex. R. Evid. 401; Guy v. State, 160 S.W.3d 606, 615 (Tex. App.—Fort Worth
2005, pet. ref’d). “A trial court’s determination of relevancy is not disturbed
absent an abuse of discretion.” Guy, 160 S.W.3d at 615; Marc v. State, 166
S.W.3d 767, 774 (Tex. App.—Fort Worth 2005, pet. ref’d) (“As long as the
trial court’s ruling admitting the evidence was within the ‘zone of reasonable
disagreement,’ there is no abuse of discretion and the trial court’s ruling will be
upheld.”).
The State presented evidence that an item fell from Minze and
established—through uncontroverted evidence—the item’s unbroken chain of
custody from Pierce, who first saw the item, to Jordan, and then to Corporal
Winterrowd. Corporal Winterrowd testified, “[Jordan] provided me with a bag
that her employee had seen dropped onto the floor. I handled it with surgical
gloves and seized it as evidence.” Corporal Winterrowd then identified the item
in court as the same one given to him at Wal-Mart; when the State questioned
5
him about the methamphetamine exhibit, he said, “That was the bag provided
to me by the store employee that said [she] found it on the floor.”
Thus, although neither Pierce nor Jordan specifically identified the State’s
methamphetamine exhibit as the same item that they handled on the night of
Minze’s offense, the evidence nonetheless established that the item admitted
at trial is the same as the item found by Pierce. Also, although Pierce’s
description of the item containing methamphetamine differs somewhat from
Corporal Winterrowd’s description (Pierce described the item as looking like a
twisted rubber glove and Corporal Winterrowd described it as looking like
plastic bags), we must defer to the jury’s resolution of conflicting testimony in
the prosecution’s favor in our legal sufficiency review. See Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. Thus, we hold that
the trial court did not err by admitting the methamphetamine exhibit. 4 See
Jones v. State, 617 S.W.2d 704, 705 (Tex. Crim. App. [Panel Op.] 1981)
(holding that an item that is offered into evidence should not be rejected merely
because it is not positively identified at trial by every person in the item’s chain
4
 Minze did not assert her relevance complaint as an independent point
of error but instead raised it as part of her legal sufficiency challenge. We note
that even if the trial court had erred by admitting the methamphetamine exhibit,
we must consider all the evidence admitted at trial, even improperly admitted
evidence, when performing a legal sufficiency review. Clayton, 235 S.W.3d at
778.
6
of custody); Salinas v. State, 507 S.W.2d 730, 731 (Tex. Crim. App. 1974)
(holding similarly).
Next, Minze argues that the State did not prove that she controlled the
item that contained methamphetamine. In other words, she contends that the
State failed to prove her affirmative links to the methamphetamine.
As the court of criminal appeals has stated,
To prove unlawful possession of a controlled substance, 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. Whether this evidence is direct or
circumstantial, “it must establish, to the requisite level of
confidence, that the accused’s connection with the drug was more
than just fortuitous. This is the whole of the so-called ‘affirmative
links’ rule.”
Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005)
(footnotes omitted); see Tex. Health & Safety Code Ann. § 481.002(38)
(Vernon Supp. 2009); Tex. Penal Code Ann. § 6.01(b) (Vernon 2003); Beall v.
State, 237 S.W.3d 841, 849 (Tex. App.—Fort Worth 2007, no pet.); Tucker
v. State, 183 S.W.3d 501, 510 (Tex. App.—Fort Worth 2005, no pet.). In
other words, when “the accused is not in exclusive possession of the place
where the substance is found, it cannot be concluded that the accused had
knowledge of and control over the contraband unless there are additional
independent facts and circumstances which affirmatively link the accused to
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the contraband.” Poindexter, 153 S.W.3d at 406 (emphasis added) (quoting
Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)).
Thus, the “affirmative links” test does not apply when the evidence shows that
the defendant had exclusive possession of the contraband. Ramirez v. State,
897 S.W.2d 428, 436 (Tex. App.—El Paso 1995, no pet.); see Poindexter, 153
S.W.3d at 407 (“[T]he parties agree . . . that appellant was linked to the Van
Loan house where the contraband was found, but that he did not have
exclusive possession of it. . . . Thus, we look for additional facts and
circumstances which affirmatively link appellant to the drugs.”).
Here, the evidence establishes Minze’s exclusive control of the
methamphetamine before it was found by Pierce. Pierce, who was only eight
to ten feet away from Minze when the drugs dropped, testified that she had no
doubt that they dropped from Minze. 5 Pierce explained that the drugs could not
have been on the store’s floor before Minze dropped them because the store’s
maintenance crew had previously swept the area in which the drugs dropped
and because Pierce had been working in the area and would have noticed them.
There were no people other than Minze and Pierce in the area where the drugs
5
 Pierce said, “[Minze] went to stand up, and this thing fell out from her
short skirt. And I didn’t know if it was in her lap or if it came from underneath
her skirt. But I was looking at it because it wasn’t the lingerie that she was
taking off the rack.”
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were found at the time that they were found, and the record does not contain
evidence that could indicate that the drugs appeared on the store’s floor in any
way other than Minze’s dropping them there. We therefore hold that the
uncontradicted evidence presented at trial is legally sufficient to prove that
Minze exercised control over the methamphetamine.
Finally, Minze contends that the evidence is insufficient to support her
conviction because the State failed to prove that she was aware of the nature
of the methamphetamine that she dropped. The record does not include direct
evidence showing that Minze knew that she was carrying methamphetamine,
but the jury could infer Minze’s knowledge of the methamphetamine from the
circumstances surrounding her offense. See Shipp v. State, 292 S.W.3d 251,
258 (Tex. App.—Texarkana 2009, no pet.); Krause v. State, 243 S.W.3d 95,
111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
Here, the item that contained the methamphetamine was a small Ziplock-
type plastic bag that was inside a larger plastic bag. According to Corporal
Winterrowd, the small bag contained a “visible amount of light colored
crystals.” Pierce and other Wal-Mart employees immediately suspected that the
item that Pierce had found contained contraband based on the item’s
appearance; that suspicion caused Jordan to call the police. Specifically, when
Pierce picked up the item and looked at it, she thought, “Oh, no, I think this is
9
a controlled substance.” When Jordan took the item to the front of the store
and asked other employees about the item, the employees told Jordan that the
item “didn’t look good.” We have held that a defendant’s knowledge that an
item contains contraband may be inferred, in part, by the item’s visual
characteristics, such as its packaging. See Brown v. State, 878 S.W.2d 695,
700 (Tex. App.—Fort Worth 1994), aff’d, 911 S.W.2d 744 (Tex. Crim. App.
1995). And the record does not contain any evidence indicating, contrary to
the evidence noted above, that the item found by Pierce could have been
mistaken for anything other than contraband.
Furthermore, “it is reasonable to infer that people know what they have
on their person.” Valle v. State, 223 S.W.3d 538, 540 (Tex. App.—Amarillo
2006, pet. dism’d); see Jenkins v. State, 870 S.W.2d 626, 628 (Tex.
App.—Houston [1st Dist.] 1994, pet. ref’d) (holding that the fact that a tube
containing cocaine was found in the defendant’s pants pocket comprised
evidence that the defendant knowingly possessed the cocaine), cert. denied,
516 U.S. 1080 (1996); Scott v. State, 825 S.W.2d 521, 523 (Tex.
App.—Dallas 1992, pet. ref’d) (holding similarly). Accordingly, we conclude
that it was reasonable for the jury to infer that Minze knew that what she was
carrying—whether in her lap or underneath her skirt—contained contraband.
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Finally, Pierce testified that Minze was acting paranoid before dropping the
drugs.
For all of these reasons, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that Minze knowingly possessed
methamphetamine. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. Therefore, we hold that the evidence is legally sufficient
to support Minze’s conviction, and we overrule Minze’s first point.
Admission of Jordan’s Identification Testimony
In her second point, Minze argues that the trial court erred by admitting
allegedly improper hearsay testimony. Specifically, she contends, “The Court
erred in permitting Jordan to testify about identification of [Minze] in any
manner because [Jordan] never perceived [Minze].” Minze asserts that
Jordan’s identification of her “was not based upon her own knowledge but was
merely a repetition of what she had been told [by Pierce.]”
We review a trial court’s decision to admit evidence under an abuse of
discretion standard, reversing the trial court’s decision only if it is outside the
zone of reasonable disagreement. Ellison v. State, 86 S.W.3d 226, 227 (Tex.
Crim. App. 2002); Paschall v. State, 285 S.W.3d 166, 172 (Tex. App.—Fort
Worth 2009, pet. ref’d). In her brief, Minze does not specify a particular
hearsay objection of which she claims that the trial court erred by overruling.
11
Instead, she generally directs us to four pages of the reporter’s record that are
part of Jordan’s testimony. In those four pages, Minze made three hearsay
objections; the trial court agreed with Minze’s position on the first two of those
objections. 6 The following exchange regards the third objection that Minze
made during the State’s direct examination of Jordan:
[THE STATE:] Did you direct the police officer’s attention to
the customer that dropped the item?
[DEFENSE COUNSEL]: Object to leading.
THE COURT: I’ll permit that question.
[DEFENSE COUNSEL]: May I ask her one question on voir
dire, Your Honor?
THE COURT: All right.
....
[DEFENSE COUNSEL:] Did you see a woman drop anything?
A. I did not personally see her, no.
[DEFENSE COUNSEL:] I’d object to any more testimony she
would testify about because it would be predicated on hearsay,
Your Honor.
THE COURT: Overruled. I’ll let her testify to what she did.
6
 The trial court explicitly sustained the first objection; when Minze
made the second objection, the trial court did not explicitly rule on the objection
but responded by telling Jordan, “Don’t say what someone else said.”
12
Jordan then testified that she had directed the officers to Minze without stating
exactly what Pierce had told her about Minze. Then, during Minze’s cross-
examination of Jordan and in the State’s redirect examination, without any
objection, Jordan testified specifically that Pierce had told her that Minze was
the person who had dropped the drugs. For example, during the State’s
redirect examination, the following exchange occurred:
[THE STATE:] Ms. Jordan, the person that you pointed out
to the police as the woman that dropped the item, was the same
woman that Kathleen Pierce identified to you as the woman that
dropped the item?
A. Yes it was.
To preserve error in the admission of evidence, the defendant must
continue to object each time the objectionable evidence is offered. Lane v.
State, 151 S.W.3d 188, 192–93 (Tex. Crim. App. 2004) (quoting Valle v.
State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); Martinez v. State, 98
S.W.3d 189, 193 (Tex. Crim. App. 2003); see Tex. R. App. P. 33.1(a)(1).
Thus, a trial court’s erroneous admission of evidence will not require reversal
when other such evidence was received without objection, either before or after
the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.
App. 1998); Wenger v. State, 292 S.W.3d 191, 202 (Tex. App.—Fort Worth
2009, no pet.).
13
Because Minze complains about Jordan’s testimony concerning Pierce’s
identification of Minze and because that testimony was admitted without
objection (in part because of Minze’s counsel’s questioning) after Minze had
initially objected to similar testimony, we hold that Minze did not preserve error
on the testimony’s admission, and we overrule her second point. See Tex. R.
App. P. 33.1(a)(1); Wenger, 292 S.W.3d at 202; Martinez v. State, 236
S.W.3d 361, 373 (Tex. App.—Fort Worth 2007, pet. dism’d).
Release of Juror Information
In her third point, Minze contends that the trial court erred by overruling
her motion that asked the court to unseal and release her jury’s information
cards. During the jury’s deliberation, it sent the trial court a note that asked the
court if it prevented the State from presenting evidence about Minze’s past
convictions “as a way to shed more light on [Minze’s] character.” The trial
court responded by stating, “[P]lease be governed by the charge—and don’t
concern yourselves with something not in evidence.”
Based on the jury’s note to the court, several days after the trial court
entered its judgment convicting Minze, she filed a motion under article 35.29
of the code of criminal procedure that asked the court to release the information
cards for the members of her jury. Minze’s motion stated, “The obvious
concern is whether any outside influence was improperly brought to bear upon
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members of this jury in considering extraneous and inadmissible matters.” After
the State filed a response to Minze’s motion and the trial court held a hearing,
the trial court denied the motion and stated that
the proper remedy . . . will be to provide the name and address of
the foreman of the jury whereby [Minze’s] counsel will be able to
contact the foreman in the format approved by the court to
determine whether substantial evidence exists to warrant good
cause for [Minze’s] counsel to have access to juror information
cards. Contact will be limited to the foreman until evidence of
good cause is presented.[ 7 ]
Article 35.29 states,
Information collected by the court or by a prosecuting
attorney during the jury selection process about a person who
serves as a juror . . . is confidential and may not be disclosed . . .
except on application by a party in the trial . . . . On a showing of
good cause, the court shall permit disclosure of the information
sought.
Tex. Code Crim. Proc. Ann. art. 35.29 (Vernon Supp. 2009); see Mayo v.
State, 971 S.W.2d 464, 465 (Tex. App.—Fort Worth 1998) (stating that
“[p]lainly, article 35.29 is intended to protect jurors by keeping their addresses
and other personal information confidential in the absence of a trial court order),
rev’d on other grounds, 4 S.W.3d 9 (Tex. Crim. App. 1999).
7
 The record does not indicate whether Minze’s counsel contacted the
jury’s foreman as allowed by the trial court, but Minze asserts in her brief that
the trial court’s solution was “unprecedented and prejudicial to [her] ability to
investigate jury misconduct.”
15
In Hooker v. State, the Beaumont Court of Appeals held that article
35.29‘s good cause showing “must be based upon sworn testimony or other
sufficient supportive evidence in the record.” 932 S.W.2d 712, 716 (Tex.
App.—Beaumont 1996, no pet.). The court noted that the defendant’s counsel
had only stated that “she had ‘a couple of thoughts’ regarding the trial and
wanted an opportunity to talk to the jury,” and the court held that counsel’s
statement did not provide good cause for releasing the jurors’ information. Id.
at 716–17. Similarly, in Esparza v. State, the San Antonio Court of Appeals
explained that under article 35.29, what “constitutes good cause must
necessarily be based upon more than a mere possibility that jury misconduct
might have occurred. . . . Good cause must be based on more than mere
conjecture; it must have a firm foundation.” 31 S.W.3d 338, 340 (Tex.
App.—San Antonio 2000, no pet.) (holding that the defendant did not meet the
good cause standard because he alleged only general allegations of jury
misconduct); see also Cyr v. State, No. 04-08-00771-CR, 2009 WL 4840955,
at *8–9 (Tex. App.—San Antonio Dec. 16, 2009, no pet.) (holding that a
juror’s telling the media that she was not comfortable with her guilty verdict
was not good cause for release of jurors’ information under article 35.29).
The jury’s note to the court in this case does nothing more than present
mere conjecture as to whether misconduct occurred. As the State asserts, the
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note does not reveal whether the jury knew of any of Minze’s history or
whether it discussed or considered the history in rendering the guilty verdict.
Although Minze labels her concern about jury misconduct as potential “outside
influence,” such influence must originate outside “of both the jury room and the
juror.” Fenoglio v. State, 252 S.W.3d 468, 477 (Tex. App.—Fort Worth 2008,
pet. ref’d). There is no indication that the jury’s note to the trial court was
based on anything more than the conversation between the jurors during its
deliberation of Minze’s verdict.
Because Minze did not meet the standard of good cause under article
35.29 for release of the jurors’ information, we hold that the trial court did not
err by denying Minze’s motion in that regard, and we overrule Minze’s third
point.
Conclusion
Having overruled all of Minze’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 18, 2010
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