Christopher Marc Cogar v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00342-CR
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CHRISTOPHER MARC COGAR, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 1A District Court
Jasper County, Texas
Trial Cause No. 13497JD
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MEMORANDUM OPINION
A grand jury indicted Appellant Christopher Marc Cogar for possession of
methamphetamine, a controlled substance, in an amount of four grams or more but
less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(d). Cogar
pleaded not guilty, but a jury found Cogar guilty and assessed punishment at ten
years’ imprisonment. In a single issue, Cogar challenges the sufficiency of the
evidence to support his conviction. We affirm.
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Evidence at Trial
Testimony of Trooper Caden Hunt
Caden Hunt, a trooper with the Department of Public Safety (DPS), testified
that he was on patrol on February 24, 2018, and stopped a vehicle for an expired
registration sticker. Hunt recognized Cogar as a passenger in the vehicle. According
to Hunt, Cogar asked if he could leave because he worked “next door” and he was
late to work, and Hunt agreed to let Cogar go. Hunt further testified that he found it
“suspicious” that Cogar was in a hurry to leave, and Hunt learned from the Sheriff’s
Office that there were two outstanding warrants on Cogar for traffic violations.
When Hunt had completed the traffic stop, he walked to the business where
Cogar was working, he arrested Cogar for the two traffic warrants, and he drove
Cogar to the Jasper County Jail. Hunt testified that Cogar was “[v]ery hesitant” to
go to jail and he regarded Cogar’s reluctance as “kind of extreme.” Hunt also
testified that he patted Cogar down before placing him in the patrol car. Hunt recalled
that Cogar had asked to leave his backpack with his mother, and Hunt stopped at a
store on the way to the jail so Cogar could give his mother his backpack.
Hunt testified that he released Cogar to the Jasper County jail staff and he later
received a phone call from Jailer Self telling Hunt that the jail found some
contraband on Mr. Cogar while “dressing him out[]” and saying that
methamphetamine had been found. Hunt further testified that he went back to the
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jail and he sealed it and marked the evidence package with his initials and later he
mailed the evidence to the Houston DPS Crime Lab for analysis. Hunt recalled that
the field weight of the substance was found to be 8.5 grams.
Hunt recognized State’s Exhibits 2 and 3 as videos taken from his dashcam
and body camera that day, and he agreed they are accurate representations of what
happened that day. The videos were published to the jury.
Testimony of Jailer Michael Self
Michael Self, a jail supervisor at the Sheriff’s Office, testified that he had
worked at the Sheriff’s Office for thirteen and a half years and that he was working
when Hunt brought Cogar to the jail to be booked on traffic warrants. Jailer Mike
Self testified that part of his duties at the jail are to “dress out” prisoners—that is, to
have the person take off their personal clothes and put on a jail uniform. Self testified
about Cogar’s dress-out:
. . . When I took him into the room, [I] told him to go ahead and remove
his -- his clothing and at which time he removed his shirt and then was
hesitant.
He then began to remove his right shoe and stated that he needed
to speak with an officer. Well, the officer that had brought him in had
already left and I had proceeded with the dress out procedure and when
he removed his shoe, that’s when I noticed there was a clear baggie
laying on the floor. . . .
....
When I [saw] the clear baggie, I told him to step back; and he
didn’t want to step back, he didn’t want to move his left foot. So I
stepped forward toward him and had him step back. I reached down to
get the shoe and the baggie that he had just taken off, and that’s when I
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noticed that there was an additional baggie that he was trying to conceal
with his left foot.
I wasn’t -- I didn’t see anything in the baggie until after I got the
-- got it out from under his foot and I just grabbed it all and just held it
behind my back until he was finished dressing out and then I exited the
room with him and then I took the stuff that I recovered to the book in
area[.]
Self testified that one of the baggies contained a clear crystalline substance.
According to Self, Cogar also made spontaneous statements about how people bring
drugs into the jail, stating that “he wanted to speak with an officer again and then he
told me that ‘I’ll let you know there -- where -- how they conceal it.’ He said, ‘They
conceal it in their shoes.’” Self took the baggies to the book-in area and notified
Trooper Hunt.
Testimony of Forensic Scientist Veronica Pando
Veronica Pando, a forensic scientist with the DPS Crime Lab in Houston,
testified that she analyzes substances submitted for identification. Pando identified
State’s Exhibit 1 as an envelope containing evidence she had analyzed, she
recognized her initials and the date written on the seal that she applied after her
analysis, and she agreed that markings on the envelope identified it as related to
Cogar’s case. Pando agreed that she analyzed the contents of State’s Exhibit 1 and
the presumptive and confirmatory test results on the substance were positive for
methamphetamine. According to Pando, the net weight of the substance was 4.14
grams. Pando identified State’s Exhibit 4 as a copy of her report on the analysis in
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this case, which also reflected that the net weight of the substance was 4.14 grams
and identified the substance as methamphetamine. On cross-examination Pando
agreed that her report indicated “All uncertainty values reported as ‘+/-’ are at the
95% confidence level.”
Issue
Appellant argues that the evidence is not legally sufficient to support his
conviction because there is no independent evidence to support the testimony of the
witnesses. According to Appellant, the evidence supporting the verdict amounts to
speculation and is “purely circumstantial.” Appellant further argues that he had
ample opportunity “to remove his shoe and dump the contraband inside of the patrol
car[,]” but that Trooper Hunt found no contraband on him prior to placing him in the
patrol car, and neither Hunt nor Jailer Self saw Cogar in possession of the
contraband.
Appellant also argues that the baggie containing drugs was not fingerprinted
and that there are chain-of-custody issues with the baggie. In addition, Appellant
argues that the forensic analyst who tested the substance only weighed it once and
because of “the uncertainty of measurement,” there is only a 95% confidence level
for the weight obtained. For these reasons, Appellant argues that the evidence is
insufficient to show beyond a reasonable doubt that he committed the crime alleged.
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Standard of Review and Applicable Law
When an appellant challenges the sufficiency of the evidence supporting a
conviction in a criminal case, appellate courts consider all of the evidence in a light
most favorable to the verdict and decide, after reviewing the evidence in that light,
whether a rational trier of fact could have found the appellant guilty of the essential
elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
We apply “only one standard” to evaluate whether the evidence is sufficient to
support a criminal conviction beyond reasonable doubt and that is “legal
sufficiency.” Temple, 390 S.W.3d at 360; Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010). In reviewing sufficiency challenges, we are required to give
the jury’s findings and its conclusions deference, as it was the jury’s responsibility
to fairly resolve all conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from the basic facts to resolve whether the defendant is guilty
of violating the criminal provision that is at issue at trial. See Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
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, 808-09 (Tex. Crim. App. 2015)
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(citing Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper, 214
S.W.3d at 13). “Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all the incriminating circumstances
is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13 (citing Johnson
v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).
The jury, as the judge of the facts and credibility of the evidence, may choose
to believe or not believe the testimony of the witnesses, or any portion of their
testimony, despite any contradictory evidence. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986) (citing Esquivel v. State, 506 S.W.2d 613 (Tex. Crim. App.
1974)). “‘When the record supports conflicting inferences, we presume that the jury
resolved the conflicts in favor of the verdict, and we defer to that determination.’”
Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016) (quoting Dobbs v. State,
434 S.W.3d 166, 170 (Tex. Crim. App. 2014)). A jury is allowed to draw multiple
reasonable inferences from facts as long as each is supported by the evidence
presented at trial. Temple, 390 S.W.3d at 360.
A person commits the offense of possession of a controlled substance if he
knowingly or intentionally possesses the controlled substance in the prescribed
amount, by aggregate weight, including adulterants or dilutants. See Tex. Health &
Safety Code Ann. §§ 481.102, 481.115. To prove possession, the State must prove
that (1) the accused exercised control, management, or care over the substance; and
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(2) the accused knew the matter possessed was contraband. Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006). The State does not have to prove that the
defendant had sole or exclusive possession of the drugs. See Cude v. State, 716
S.W.2d 46, 47 (Tex. Crim. App. 1986). However, when the defendant does not have
exclusive possession of the place where the contraband is found, then independent
facts and circumstances must link him to the drugs. Poindexter v. State, 153 S.W.3d
402, 405-13 (Tex. Crim. App. 2005) (citing and quoting Deshong v. State, 625
S.W.2d 327, 329 (Tex. Crim. App. 1981)). Regardless of whether the evidence is
direct or circumstantial, it must establish that the defendant’s connection with the
drug was more than fortuitous. Evans, 202 S.W.3d at 161. This is called the
“affirmative links” rule. Id. The Court of Criminal Appeals has recognized the
following non-exclusive factors as tending to establish affirmative links: (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 contraband;
(4) whether the defendant was under the influence of narcotics when arrested; (5)
whether the defendant possessed other contraband 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
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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. See id.
at 162 n.12; Black v. State, 411 S.W.3d 25, 29 (Tex. App.—Houston [14th Dist.]
2013, no pet.). The number of factors is not as important as the logical force they
collectively create to prove that a crime has been committed. Evans, 202 S.W.3d at
162; Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d) (citing Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st
Dis.t] 2002, pet. ref’d)). Moreover, the absence of various links does not constitute
evidence of innocence to be weighed against the affirmative links present. See Wiley
v. State, 388 S.W.3d 807, 814 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see
also Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976) (“[T]he
absence of the above facts and circumstances is not evidence of appellant’s
innocence to be weighed against evidence tending to connect appellant to the
marihuana.”).
“Mere presence at the location where drugs are found is thus insufficient, by
itself, to establish actual care, custody, or control of those drugs.” Evans, 202 at 162.
However, presence or proximity, when combined with other evidence, either direct
or circumstantial, can be sufficient to establish that element beyond a reasonable
doubt. Id. Convenient access to the contraband is an accepted factor. See Robinson,
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174 S.W.3d at 326. “Conveniently accessible” means that the contraband must be
within the close vicinity of the accused and easily accessible so as to suggest that the
accused had knowledge of the contraband and exercised control over it. See id. at
326 (citing Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Deshong,
625 S.W.2d at 329); see also Gregory v. State, 159 S.W.3d 254, 260 (Tex. App.—
Beaumont 2005, pet. ref’d).
Analysis
In this case, Jailer Self observed two baggies while “dressing out” Cogar at
the jail. Self testified that Cogar appeared to be trying to conceal a baggie with his
foot. Upon subsequent analysis by a DPS analyst, one of the baggies was determined
to contain 4.14 grams of a substance containing methamphetamine. Here, the
evidence allowed the jury to conclude that Cogar exercised care, custody, control,
or management over the methamphetamine. The baggies were discovered by the
jailer when Cogar was “dressing out,” and Cogar appeared to be attempting to
conceal the baggie with his foot. We conclude the combined and cumulative force
of the evidence allowed the jury to conclude that Cogar intentionally or knowingly
possessed the methamphetamine that the jailer found when “dressing out” Cogar at
the jail. See Evans, 202 S.W.3d at 162; see also Brooks, 323 S.W.3d at 902 n.19.
The Jailer testified that he took the baggie to the book-in area and he notified
Trooper Hunt. Hunt testified that he put the evidence in a locker and later sent it to
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the DPS lab for analysis. Pando recognized the baggie as the evidence she received
in this case, and she identified the markings she made after her analysis. On appeal,
Cogar questions why the baggie was not fingerprinted. Circumstantial evidence may
be sufficient to prove the chain of custody. See Cain v. State, 501 S.W.3d 172, 175
(Tex. App.—Texarkana 2016, no pet.); Watson v. State, 421 S.W.3d 186, 190 (Tex.
App.—San Antonio 2013, pet. ref’d). Without evidence of tampering, most
questions concerning the care and custody of a substance go to the weight of the
evidence. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). And
when the State shows the beginning and the end of a chain of custody, any
intermediate gaps go to the weight of the evidence, particularly when the chain of
custody ends at a laboratory. See Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d); Gallegos v. State, 776 S.W.2d 312, 315-16
(Tex. App.—Houston [1st Dist.] 1989, no pet.). Because circumstantial evidence
may be used to prove chain of custody and may be sufficient to uphold a conviction,
we find Cogar’s chain-of-custody argument unavailing. See Ramsey, 473 S.W.3d at
808-09; Cain, 501 S.W.3d at 175; Watson, 421 S.W.3d at 190.
Pando testified that the weight of the substance she analyzed was within a
95% confidence level and that she weighed the substance once. Although Cogar
raises questions on appeal about the scales Pando used, he did not question her about
the scales at trial. Cogar cites to no authority that legal sufficiency requires a higher
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confidence level for the weight of the substance. A witness’s uncertainty, if any,
generally goes to the weight of the testimony and is for the jury to consider. See
Garza v. State, 633 S.W.2d 508, 511 (Tex. Crim. App. 1981); Prihoda v. State, 352
S.W.3d 796, 803 (Tex. App.—San Antonio 2011, pet. ref’d). And circumstantial
evidence may be sufficient to uphold a conviction. See Ramsey, 473 S.W.3d at 808-
09. Therefore, we find Cogar’s argument about the confidence level of the weight of
the substance in the baggie does not establish insufficiency of the evidence.
As the factfinder, the jury was the exclusive judge of the facts, the credibility
of the witnesses, and the weight to be given the testimony. See Brooks, 323 S.W.3d
at 899; Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may
choose to believe or disbelieve any witness, or any part of a witness’s testimony. See
Sharp, 707 S.W.2d at 614. A rational jury could have determined beyond a
reasonable doubt that Cogar committed the offense as alleged in the indictment. We
conclude that sufficient evidence supports Cogar’s conviction. We overrule
Appellant’s issue, and we affirm the judgment of the trial court.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on August 24, 2020
Opinion Delivered September 30, 2020
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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